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jonathanli

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[ "The applicant was born in DATE and lives in GPE .", "On DATE , at TIME , the applicant was taken into custody on suspicion of attempted murder .", "On DATE formal charges were brought against the applicant .", "On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան ) granted the investigator ’s relevant motion and ordered the applicant ’s detention on remand for DATE , to be calculated from DATE .", "On DATE the investigator filed a motion with ORG , seeking to have the applicant ’s detention on remand prolonged for DATE .", "On DATE ORG examined and dismissed this motion . This decision was subject to appeal .", "On DATE at TIME a copy of this decision was presented by the applicant ’s lawyer to the Chief of the Yerevan - Kentron Detention Facility ( « Երևան-Կենտրոն » քրեակատարողական հիմնարկի պետ ) where the applicant was held .", "On DATE the prosecutor lodged an appeal against the above decision .", "DATE at TIME the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ) commenced the examination of the prosecutor ’s appeal . The applicant was escorted to the hearing by CARDINAL national security officers in an official car .", "At TIME the applicant ’s lawyer arrived and requested a TIME recess to be able to consult with the applicant . The Government alleged that the lawyer was deliberately late for the hearing , while the applicant claimed that her lawyer was informed by telephone about this hearing TIME", "At TIME the applicant ’s detention period authorised by the decision of DATE expired .", "Following the recess , the lawyer challenged the impartiality of the bench . He first alleged that the court had not given the applicant sufficient time to prepare her defence and also failed to ensure equality of arms . Furthermore , there were CARDINAL national security officers in the court building who prevented the applicant , who was formally already at liberty , from going out of the building . Thus , the fact that such things were happening in the building of ORG suggested that the outcome of the proceedings was already pre - determined .", "The court departed to the deliberation room to examine this challenge , after which it returned and announced its decision dismissing it .", "Thereafter another TIME recess was announced by the court for the defence to be able to familiarise itself with the prosecutor ’s appeal and the materials of the case . During the recess an ambulance was called because the applicant felt unwell . Her blood pressure rose to CARDINAL but no injections could be administered as she was allergic , so the doctor recommended adjourning the hearing .", "The hearing resumed at CARDINAL p.m. The applicant ’s lawyer requested the adjournment of the hearing in view of the deterioration of the applicant ’s health and in order for him to be able to familiarise himself with the prosecutor ’s appeal in adequate conditions . The court granted this request and adjourned the hearing until TIME on DATE .", "The court hearing was over at TIME", "The applicant alleged and the Government did not dispute that during the entire court hearing she was monitored by CARDINAL national security officers and was not allowed to move freely , to leave the courtroom during the breaks or to go home . After the court hearing was over , she was forcibly taken by these officers and pushed into the same car and taken back to FAC . This was done after one of the officers had a private consultation and received instructions from the presiding judge in the deliberation room .", "On DATE at TIME ORG resumed the examination of the prosecutor ’s appeal . The applicant was not present at this hearing .", "The applicant ’s lawyers again challenged the impartiality of the bench , alleging that the court had manifested a biased attitude . In particular , the court summoned a hearing on the prosecutor ’s appeal immediately before the expiry of the applicant ’s detention period . Furthermore , the court did not release the applicant despite the fact that her detention had not been prolonged . Finally , after the hearing was over , the presiding judge departed to the deliberation room where he had a consultation with a national security officer , as a result of which it was decided to keep the applicant in detention . Thereafter she was transported to a national security isolation cell . The lawyers claimed that all the above suggested that ORG was not impartial .", "The court examined and dismissed this challenge .", "Thereafter , CARDINAL of the applicant ’s lawyers made a declaration stating that , following the court hearing of DATE , the applicant had been taken away by national security officers in an unknown direction , despite the fact that she was already free by virtue of the law . The lawyers refused to participate in the hearing in such circumstances and left the courtroom .", "ORG examined the prosecutor ’s appeal in their absence and decided to quash the decision of ORG of DATE and to prolong the applicant ’s detention on remand for DATE .", "On DATE one of the applicant ’s lawyers addressed a letter to the Chief of the Yerevan - Kentron Detention Facility , complaining :", "“ ... You ... , as the chief of administration of the detention facility where [ the applicant ] is kept , at TIME on DATE not only did not release her , but had her escorted to court by CARDINAL officers in an official car having ORG licence no . CARDINAL SS CARDINAL , during the entire [ court hearing ] you monitored her actions until TIME on [ that date ] , forbidding her to move freely , and at around DATE , with the assistance of the same officers , you forcibly ( holding her arms , pushing her ) placed her in the above car and transported her to FAC where you received her , according to the information at our disposal , without a relevant court decision . In that period ( TIME ) the defence called you on numerous occasions and you stated that you would keep [ the applicant ] until the court hearing scheduled for TIME on DATE was over ... ”", "On DATE the applicant ’s lawyers lodged an appeal on points of law against ORG decision . In their appeal , they again complained about the fact that the applicant had not been released from custody on DATE .", "On DATE the applicant ’s lawyers made a similar declaration addressed to ORG .", "By a letter of CARDINAL DATE ORG ( ՀՀ վճռաբեկ դատարան ) returned the appeal since it was no longer competent to examine it following the constitutional amendments .", "The relevant provisions of the ORG read as follows :", "“ CARDINAL . The court , the body of inquest , the investigator and the prosecutor are obliged immediately to release any person illegally deprived of his liberty . The chief of administration of a detention facility does not have the right to receive a person for purposes of detention without a relevant court decision and is obliged immediately to release any person whose period of detention has expired . ”", "“ CARDINAL . Detention ... shall be imposed only by a court decision upon the investigator ’s or the prosecutor ’s motion or of the court ’s own motion during the court examination of the criminal case ... ”", "“ CARDINAL . The court ’s decision to choose detention as a preventive measure can be contested before a higher court . ”", "“ CARDINAL . The accused ’s detention period shall be calculated from the moment of him being actually taken into custody at the time of the arrest ...", "...", "NORP In the pre - trial proceedings of a criminal case the detention period can not exceed DATE , except for cases prescribed by this Code ...", "NORP In the pre - trial proceedings of a criminal case the accused ’s detention period can be prolonged by a court for DATE in view of the particular complexity of the case . ”", "“ CARDINAL . If it is necessary to prolong the accused ’s detention period , the investigator or the prosecutor must submit a well - grounded motion to the court not DATE before the expiry of the detention period . The court , if it agrees on the necessity of prolonging the detention period , shall adopt an appropriate decision not DATE before the expiry of the detention period .", "...", "When deciding on the prolongation of the accused ’s detention period , the court shall prolong the detention period within the limits prescribed by this LAW , on each occasion for a period not exceeding DATE . ”", "“ The administration of a detention facility is obliged : ... ( CARDINAL ) immediately to release a person kept in detention without an appropriate court decision or whose detention period imposed by a court decision has expired . ”", "“ CARDINAL . The accused must be released from detention upon the decision of the relevant authority dealing with the criminal case , if : ... ( CARDINAL ) when deciding on the question of detention , the detention period set by the court has expired and has not been prolonged ...", "...", "NORP ... In cases envisaged under [ sub - paragraph CARDINAL ] of paragraph CARDINAL of this Article ... the chief of administration of the detention facility shall immediately release the detainee . ”", "“ CARDINAL . A court decision imposing a preventive measure can be contested before the court of appeal . ”", "The relevant provisions of the PERSON read as follows :", "“ An arrested or detained person is entitled to ... lodge applications and complaints , both himself and through his lawyer or lawful representative , with ... the courts ... ”", "“ ... [ C]omplaints ... addressed to ... a judge ... shall be sent to [ him ] in a sealed envelope within DATE . ”" ]

[ "5" ]

[ "5-1" ]

[ "5-1-c" ]

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[]

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[ "The applicant is a NORP citizen , born in DATE and currently resident at Muurame . He is represented by Ms. PERSON , a lawyer in GPE . The respondent Government are represented by Mr PERSON , Director ORG , and Mr PERSON , Director , both of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant and P. are the parents and custodians of A. , born in DATE , and J. , born in DATE . In DATE the applicant started serving a prison sentence which was to DATE and DATE and had been imposed for attempted manslaughter , aggravated robbery , CARDINAL thefts and unlawful use of a vehicle ( all committed in DATE ) . From DATE to DATE the children lived with P. while she was serving a prison sentence .", "On DATE the children were provisionally placed in public care pursuant to section CARDINAL of LAW ( lastensuojelulaki , barnskyddslag DATE ) . In her decisions ORG Director noted that , on DATE , P. had left the children with another person , who had brought them to ORG mother NORP , since they had not been picked up by P. as promised . NORP had considered herself unable to take care of the children . The Acting Director ordered the children ’s placement in a children ’s home in GPE , where PERSON and NORP would be able visit them in agreement with the staff .", "On DATE and DATE respectively , the applicant and PERSON consented to the public care proposals under preparation for ORG ( perusturvalautakunta , grundtrygghetsnämnden ) of PERSON . The applicant ’s consent was limited to the children ’s temporary placement while he was serving his sentence . At a meeting on DATE concerning the terms of the care plan ( which the applicant had not been invited to attend ) P. agreed to visit the children CARDINAL times a week and to seek help in resolving her alcohol and other problems .", "On DATE ORG confirmed the care orders and the terms of their implementation . It noted , inter alia , that P. had repeatedly left the children in the care of others and had failed to pick them up as promised . According to the staff of the children ’s home , the children seemed particularly frightened and anguished . The applicant ’s prison sentence would last at least until DATE and PERSON was also expected to serve a prison sentence . PERSON had refused to acknowledge any problems and open - care assistance would in any case have been insufficient in view of the children ’s specific needs .", "During DATE the applicant called the children once DATE and they visited him in prison . He also visited them in the children ’s home in DATE and DATE when he had been granted his first leaves .", "At a meeting with social welfare officials on DATE staff of the children ’s home considered it to be in the children ’s best interests that they be transferred to a substitute family as soon as possible . The applicant had not been invited to attend the meeting and P. failed to attend it . On DATE , however , the applicant was heard in prison in respect of the social authorities’ intention to transfer the children to a foster family . According to the social welfare official ’s notes , the applicant consented to such a placement provided it would last only up to his release from prison .", "By judgment of DATE the applicant ’s sentence was extended to DATE and DATE on account of his conviction on CARDINAL further count of robbery ( committed in DATE ) .", "On DATE ORG decided to place the children in a foster family . According to its investigations , P. had remained unable to assume their physical , mental and social development . As from DATE she had no longer visited the children as promised and had failed to respect her obligation under the care plan to seek treatment for her alcohol problem . From DATE to DATE she had had no contact with the children whatsoever and her whereabouts had been unknown . She had continued to face financial problems and had been evicted from her flat . In addition , the applicant would be serving a prison sentence at least until DATE . He had started serving his sentence when PERSON was DATE , whereas J. had been born during his imprisonment . While serving his sentence he had only been able to meet the children in prison . In DATE they had apparently visited him only once . They could no longer stand the constant change of nursing staff in the children ’s home and were in need of stable and secure human relations . The applicant ’s wishes could therefore not be considered when deciding on the further implementation of the public care .", "The applicant appealed to ORG ( lääninoikeus , länsrätten ) of PERSON , claiming that ORG had failed to consider the possibility of returning the children to him on his release from prison . He referred to his regular contacts with the children during their placement in the children ’s home . ORG had omitted any reference to those visits . Contrary to the ORG ’s view the children had been developing well in the children ’s home . Starting in DATE the applicant would be granted a DATE leave DATE and he intended to use DATE of those leaves to see his children . In prison he was studying and practising to become a welder , which would enable him to support the children after his expected release on parole in DATE . He was therefore doing all he could to prepare himself to assume the care of the children . The mother ’s problems were also of a temporary character . If need be , the applicant would consider requesting sole custody of the children . At any rate , he would try to ensure the children ’s need of contact with their mother . The applicant furthermore submitted that he had not been notified of all documents which ORG had apparently relied on . He also requested an oral hearing .", "In its submissions to ORG stated , inter alia , that it had no proof that the applicant would be capable of assuming the children ’s care and upbringing . His prison sentence was expected to end at the earliest in DATE , whereas children of the age in question could not wait for DATE to have a parent .", "In his rejoinder the applicant objected to the social LOC apparent requirement that he should be rejecting PERSON It was not for the applicant to prove his ability to assume the care of his children , but for the authorities to prove the contrary . He further objected to certain case notes of the social welfare officials according to which he had , during a meeting with the children , “ pretended ” to be a tender and loving father . Another note proved that in DATE an official had told the applicant that the children would be placed in a foster family , “ where they could grow up to become adults while maintaining contact with their biological parents ” . The applicant therefore feared that any placement in a foster family would become irrevocable .", "P. also appealed against the decision of CARDINAL DATE , arguing that the children ’s transfer to a foster family had been decided without the authorities’ having had appropriate time at their disposal for verifying her inability to assume the care and upbringing of the children and without affording her a reasonable opportunity to solve her problems .", "In respect of P. ’s appeal ORG submitted , inter alia , that the family conditions had been monitored from DATE and that her problems were not temporary in nature . P. had failed to respect the terms of the care plan which she had herself accepted . She had last visited the children in DATE and had interrupted her treatment for her alcohol problem .", "ORG afforded the applicant an opportunity to comment on ORG appeal as well as on the complete version of the social welfare officials’ case notes , from which CARDINAL page ( concerning the period DATE ) had been missing . In his final observations the applicant agreed with the views put forward by PERSON further objected to not having been invited to attend the meeting on DATE for no good reason . Finally , since the statements made by staff of the children ’s home disclosed their negative attitude towards the applicant , those opinions should not be given any decisive weight .", "On DATE ORG rejected the appeals , having found an oral hearing unnecessary . It considered , inter alia , that the manner in which the applicant had been heard in prison on DATE had not been such as to require that the ORG ’s decision be quashed . As for the decision to transfer the children to a foster family , ORG reasoned as follows :", "( translation from NORP )", "“ When a child has placed in the care of a social welfare board , the board is entitled to pursue the aim of that placement by deciding on the care , upbringing , supervision … and whereabouts of the child . In considering whether to amend the terms of … the public care the best interests of the child shall be the primary consideration . Given [ A. ’s and ORG ] age and their symptoms in the children ’s home , it is at this moment in their best interests that they be provided with [ foster ] care . Neither does [ such care ] prevent contact between the children and their [ biological ] parents . Accordingly , there is no reason to reverse the ORG ’s decision .", "In its decision ORG has not – nor could it have – decided on the children ’s permanent placement in [ a foster family ] . Under section CARDINAL of LAW a social welfare board must terminate the public care of a child when the need for [ such care ] as described in section CARDINAL … no longer exists , unless such termination would be manifestly contrary to the child ’s best interests . When considering [ those ] interests regard shall be had to the quality of the relationship between the child and his or her foster parents as well as the contacts between the child and his or her [ biological ] parents . ”", "ORG relied on LAW , section CARDINAL ( subsection CARDINAL ) and section CARDINAL ( subsection CARDINAL ) of LAW as well as on LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) .", "The applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting an oral hearing . He submitted , inter alia , that he was visiting the children during every prison leave and was telephoning them once DATE . In its observations on the appeal ORG stated , inter alia , that CARDINAL of its officials had informed the social worker of the applicant ’s prison that his presence at the meeting on DATE would not be required , since he had already been informed of the ORG ’s intentions and was to be heard on DATE .", "On DATE ORG rejected the appeal without an oral hearing and ORG decision was upheld .", "Meanwhile , on DATE ORG had implemented its decision of CARDINAL DATE by placing PERSON J. in a substitute family at PERSON near GPE with the assistance of the association GPE lapset r.y . – PERSON r.f ( “ Save The Children ” ) . The applicant was allowed to see the children for TIME every third month . He apparently met them twice in the substitute family , once on office premises in GPE and once in a shelter for women and children in GPE . He continued to call the children once a week .", "It appears that DATE and DATE P. served a DATE sentence in GPE inter alia on CARDINAL count of robbery ( committed in DATE ) , CARDINAL counts of theft ( committed in DATE ) , CARDINAL count of fraud , CARDINAL counts of attempted fraud and CARDINAL counts of forgery ( all committed in DATE and DATE ) . She also served a DATE prison sentence in GPE ( inter alia for theft , attempted fraud and forgery committed in DATE ) . In DATE she was convicted of violent resistance against a public official , deprivation of liberty and escape from prison ( all committed in DATE ) . Her DATE prison sentence was commuted into community service ( yhdyskuntapalvelu , samhällstjänst ) .", "In DATE the applicant and PERSON married .", "In an opinion of DATE Dr PERSON , a child psychiatrist of ORG , concluded that PERSON ’s mental state would be incapable of surmounting any form of uncertainty , particularly as regards changes or losses in his human relations . This should be taken into account when considering meetings between A. and his biological parents as well as the public care as a whole . The opinion was based on interviews with NORP separately as well as together with his substitute parents .", "In DATE the applicant was released from prison and P. ’s parole ended . At a meeting on DATE for the purpose of updating the care plan social welfare officials and regional director ( social worker ) A.R. of Save The Children requested the biological parents to limit their telephone calls to the children to CARDINAL every CARDINAL or three weeks and to tell the children in clear terms that they would be able to remain in the foster family . The requests were justified in particular by A. ’s negative reactions after such telephone calls as well as by his perception that he might have to give up his foster parents . The biological parents agreed to the visiting arrangements so far implemented as well as to the further limitation of telephone calls . They had last visited the children in DATE and the next meeting would take place in DATE . A. was expected to receive individual therapy starting in DATE .", "In DATE the biological parents moved to the municipality of ORG , where their third child was born in DATE . They requested permission to visit GPE and DATE and to be able to telephone them once DATE . On DATE ORG maintained the restriction on contacts at CARDINAL meeting DATE and CARDINAL telephone call DATE . The biological parents were still allowed to send post cards . The restriction was to be in force until DATE . ORG based itself on Dr PERSON ’s opinion of DATE as well as on notes drawn up by PERSON", "The biological parents appealed , stressing that Dr PERSON ’s opinion was DATE and that the authorities had not investigated the reasons for A ’s symptoms . In any case the symptoms could not be deemed to have resulted from his meetings with the biological parents . The symptoms could have been caused by the severe access restriction or the various changes in the foster family ’s circumstances . Moreover , according to an opinion of DATE issued by CARDINAL officials of ORG of the municipality of ORG , no criticism could be expressed against the biological GPE family conditions which were furthermore stable .", "Among the evidence apparently adduced by ORG was a further opinion of Dr PERSON dated DATE . In an opinion of DATE Dr R.S. , a paediatrician , noted that the children and their biological parents had met DATE ( most recently in DATE and DATE ) on the premises of Save the Children or at an emergency shelter . The meetings had been supervised . The parents no longer had any prison sentences to serve and had solved their alcohol problem . The original family unit had not been sufficiently supported and meetings to that end had been prevented for no good reason . It had transpired from Dr PERSON ’s discussions with PERSON and Dr PERSON of ORG that the latter had not been in contact with the applicant and PERSON for DATE . The discussions had revealed a clearly negative attitude to the proposals of Dr PERSON for increasing the contacts and assessing A. ’s interaction with his biological parents as well as his need for therapy . Dr PERSON concluded that there were no obstacles to meetings between the children and their biological parents or to the ultimate revocation of the public care .", "At an oral hearing on DATE ORG heard the biological parents , the foster parents and a representative of ORG . The court ex officio took witness testimony from Dr PERSON and nursery director PERSON was heard at the Board ’s request , whereas the children ’s maternal grandmother NORP and the CARDINAL social welfare officials from the NORP municipality were heard at the request of the biological parents . Dr PERSON was not opposed to more frequent meetings as long as the children could feel certain that they would remain in the foster home . There was no reason to apply different restrictions to ORG director PERSON stated that A. ’s behaviour had improved significantly after DATE . According to PERSON , the children ’s hospital had been unwilling to commence A. ’s therapeutic treatment until he had rooted himself in the foster family . The foster mother , although maintaining her objection to meetings taking place in the foster home , considered that CARDINAL meeting DATE would “ tie down ” the foster family excessively .", "On DATE ORG reversed ORG decision as not being based on sufficient grounds . It ordered that GPE and PERSON be entitled to meet the biological parents once DATE and to speak with them over the telephone once DATE . The meeting LOC were to be defined by ORG . The court found it established that A. had displayed physical and psychological symptoms both before and after meeting with his biological parents which were placing him in a situation of conflict . The court did not , however , find it established or likely that more frequent meetings and other forms of contact would manifestly jeopardise A. ’s development . As it had not been established that his symptoms had been caused by the biological GPE behaviour during meetings , it had not been established either , nor was it likely , that fewer meetings and generally less contact would support his development . The court found PERSON written opinions and oral testimony contradictory . No reason had been shown for restricting meetings between PERSON and her biological parents .", "In DATE the applicant ’s parole ended . On DATE the biological parents requested ORG to terminate the public care . According to the request , A. and J. had been able to meet them once DATE up to DATE , on premises assigned by a social welfare official or the foster parents . Normally the meetings had also been attended by the foster parents . In DATE the biological parents had requested that the number of meetings be further increased and that they take place in their home . On DATE they had been informed that the request had been refused and that the access restriction had been prolonged until DATE . It had been agreed , however , that through DATE the DATE meetings would be extended from TIME and would take place in the home of the biological parents . On CARDINAL DATE a social welfare official had informed them that the children ’s opinions in respect of the meetings would be ascertained at the child psychiatric clinic of ORG by hearing the foster and biological parents separately , both with and without the children , DATE . On DATE the dates for the DATE meetings through DATE had also been agreed . In a memorandum of CARDINAL DATE the child psychiatric clinic had stated that meetings between the children and their biological parents were important and should be organised in accordance with the children ’s best interests and capacity to adjust to them . This position had been repeated in an opinion of DATE by PERSON , a child psychiatrist at the clinic .", "In their request of DATE the biological parents recalled that the meetings had been discontinued during and after the child psychiatric examination in DATE . When they had wondered why ORG decision was no longer being implemented , PERSON had replied that it was no longer valid and that there was no obligation to organise meetings .", "The biological parents stated , moreover , that when meetings had taken place in the absence of the foster parents , the children had been behaving naturally and had shown confidence in their biological parents . The foster GPE hostile attitude to the biological parents had been reflected in the children ’s behaviour when the foster parents had attended meetings . When the foster parents had been present , the children had not spoken of their own initiative . Whenever the biological parents had been telephoning the children , they had been given the impression that they were disturbing the foster family . At a meeting on DATE a social welfare official had noted that no meetings had taken place since DATE due to the children ’s refusal to go with the biological parents when they had come to fetch them from the foster home .", "According to their submissions of DATE the biological parents had requested , on CARDINAL DATE , that meetings be allowed on TIME from TIME until DATE , following which the meetings should be extended until DATE They had further requested ORG to clarify what measures it had taken as from DATE for the purpose of fulfilling its obligation under LAW , subsection CARDINAL , of LAW . At a meeting on DATE no consensus had been reached as to the future meetings . On DATE the ORG had restricted the meetings from DATE through DATE to CARDINAL meeting DATE lasting TIME . No clarification had been given as to how ORG had met its obligation under section CARDINAL , subsection CARDINAL , of LAW .", "In their request of DATE the biological parents concluded that the foster parents had not fulfilled their obligation to secure ORG ’s and ORG right to a positive and close relationship with their biological parents . When the biological parents , in DATE , had requested more frequent contacts with them , the foster parents had referred to A. ’s behavioural disturbance . Since A. had been a client at ORG since DATE but his therapy had commenced only in DATE , the foster parents had also failed to secure his balanced development .", "In their request of DATE the biological parents finally submitted that they had recently found out that NORP and PERSON had been seeing their maternal grandmother NORP on a regular basis . As PERSON had not wished to have anything to do with P. , such meetings had not been , in the view of the biological parents , in the children ’s best interests . The social authorities had concealed the meetings from the biological parents and had failed to support the children ’s right to meet their paternal relatives .", "On DATE ORG refused to terminate the public care , as such termination would be contrary to the children ’s best interests , given their own wishes , the duration of the foster care and the quality of their relationship with their foster parents . ORG noted the children had expressed a wish to remain in the foster family . In order to support their development it was necessary to assure them that their current home and its permanent human relations would remain stable .", "The biological parents appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) of GPE , arguing that the ORG had not found termination of the public care to be “ manifestly ” contrary to the children ’s interests , only that those interests would be secured better through public and foster care . Even if ORG had not criticised the current conditions of the biological parents , they requested ORG to order an investigation into their situation . They also requested an oral hearing . The biological parents had previously appealed against the access restriction issued on DATE .", "On DATE ORG dismissed both appeals after an oral hearing of the biological parents , the foster parents and officials of ORG . PERSON , PERSON ’s therapist as from DATE and CARDINAL other witnesses were heard at the request of the biological parents .", "ORG noted inter alia that ORG and ORG had been in public care for DATE from DATE and PERSON from DATE . Before their placement in their current foster family the children had been living in insecure conditions , first when cared for by their biological mother while the applicant had been serving his sentence , and subsequently while cared for in a children ’s home . During their stay in the foster family the children had met their biological parents seldom . For DATE there had been no contact whatsoever between the children and the biological mother . From then DATE it had been difficult to organise meetings with the biological parents as the children had opposed such contact and had stated that they did not trust them . Instead the children had become strongly attached to their foster parents . Any cutting of those ties would be harmful to the children . In such circumstances the termination of their public care would be manifestly contrary to their best interests .", "ORG did not find it established that the children ’s meetings with their biological parents had jeopardised their development . The meetings nonetheless had to take place in accordance with the opinion expressed by the children . They had repeatedly and clearly been opposed to very frequent meetings . According to PERSON , they had even been categorically opposed to meetings . On the other hand , no problems had occurred during actual meetings and the children had then considered them “ quite all right ” . The children ’s opposition to meetings had evidently been triggered in part by their fear of having to give up their foster family and return to their biological parents . This fear might also have been compounded by the biological GPE wish to see the children returned to them and by the foster GPE fear of losing them . It had not been established , however , that the children ’s opinion had been influenced in an inappropriate manner . In these circumstances the frequency of meetings requested by the biological parents would be manifestly contrary to the best interests of the children . Those interests required that the number of meetings be increased with their consent and gradually . Although finding no reason at this stage to amend the access restriction in force until DATE , ORG recalled that ORG was under an obligation continuously to support meetings and other forms of contact between the children and the biological parents .", "The relevant legislation is outlined in the ORG ’s judgment of DATE in the case of PERSON GPE ( no . CARDINAL , CARDINAL , § § DATE ) . Those provisions of particular relevance to the present case are described below .", "According to section CARDINAL of LAW , ORG shall take a child into care and provide substitute care for him or her if ( a ) the child ’s health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by abuse of intoxicants , by committing an illegal act other than a minor offence , or by any other comparable behaviour , ( b ) the measures of assistance in open care are not appropriate or have proved to be inadequate ; and ( c ) foster care is considered to be in the best interests of the child . PERSON care shall be provided without delay where it is needed and is in the best interests of the child ( section CARDINAL , subsection CARDINAL ) .", "If a child is in imminent danger or otherwise in need of an immediate care order and foster care , ORG may take him or her into care without submitting the decision to ORG for prior approval ( section CARDINAL ) . An emergency care order shall expire within DATE of the decision , unless referred for reconsideration under LAW of LAW . An ordinary care order pursuant to section CARDINAL must be issued within DATE , or on special grounds within DATE , of the emergency order . Both ordinary and emergency care orders may be appealed to the administrative courts .", "The child ’s custodians , biological parents and de facto carers shall be heard in respect of a proposal to issue or revoke a public care order or to place a child outside his or her original home . They shall further be notified of the decision taken ( section CARDINAL , subsection CARDINAL , of LAW , as amended by Act no . GPE ) . The hearing procedure is governed by LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) . Under LAW of the said LAW a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken . LAW does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply . A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary , would jeopardise the purpose of the decision or if the decision can not be postponed . LAW requires that the competent authority duly investigate the matter before it and ensure the equality of the parties .", "According to section CARDINAL of LAW , a child who is being cared for outside his or her original home shall be ensured those important , continuous and secure human relations which are important for his or her development . The child is entitled to meet his or her parents and other close persons and to keep in touch with them ( subsection CARDINAL ) . ORG shall support and facilitate the child ’s contacts with his or her parents and other close persons ( subsection CARDINAL ) .", "According to section CARDINAL of LAW and section CARDINAL of LAW ( lastensuojeluasetus , barnskyddsförordning DATE ) , ORG or the director of a children ’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if ( a ) such access clearly endangers the development or safety of the child ; or if ( b ) such a restriction is necessary for the safety or security of the parents , or the children or staff in the children ’s home . The restriction shall be limited in time . It shall mention the persons whose rights are being restricted , the kind of contacts concerned by the restriction and the extent of the restriction .", "The care plan to be drawn up in respect of a child in public care shall mention ( a ) the purpose and objectives of the placement ; ( b ) what kind of special support will be organised for the child , for the persons in charge of the child ’s care and upbringing and for the child ’s parents ; ( c ) how the child ’s right of access to its parents and other persons close to the child will be organised ; and ( d ) how after - care is going to be organised . According to section CARDINAL of LAW , the care plan shall be elaborated in co - operation with those involved .", "A county administrative court ’s decision in respect of a public care order , the transfer of a child into foster care or the termination of public care may be appealed further to ORG . Other decisions of a county administrative court relating to child welfare measures can not be so appealed ( section CARDINAL of LAW ) ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On an unspecified date , ORG ( ORG , hereinafter ORG ) began to record the telephone conversations of PERSON , a NORP attaché working at the Consulate of GPE in GPE and allegedly a member of ORG ( ORG ) . The authorities noticed suspicious telephone conversations between PERSON and the applicant and initiated an investigation concerning the applicant .", "On DATE a military prosecutor and ORG officers searched the applicant ’s shop in GPE . According to the preliminary investigation report , several photographs of military bases , CARDINAL maps ( CARDINAL of which was marked as “ top secret ” ) and telephone and credit cards were found in the shop . PERSON was present when ORG officers carried out a search in the applicant ’s shop and told them that the photos of the military bases did not belong to him but to the applicant . The latter was then taken into custody on suspicion of transmitting official and confidential information to NORP intelligence service members . He was brought before a doctor , ORG , who noted that he was in good health . During his custody period , the applicant was allegedly subjected to illtreatment by the ORG officers .", "On DATE the applicant was brought before the ORG . Before this court , he maintained that he had met someone who worked at FAC in GPE and that he had sold this person books and silver accessories . He received money from this person for what he had sold . The applicant further contended that this person asked him to provide military information about GPE . The applicant denied the allegation that he had given confidential information to this person . He stated that the maps and the photographs found in his shop did not belong to him .", "On DATE , the court ordered the applicant ’s detention on remand . He was then examined by ORG who once again noted that there was no trace of ill - treatment on the applicant ’s body . The applicant was then remanded in ORG . He filed an objection to the detention order .", "On DATE , following his objection to the findings contained in the previous medical reports , the applicant underwent a third medical examination in prison . According to the prison doctor ’s report , the applicant had ecchymoses on both arms , which were possibly DATE .", "On DATE the applicant filed a further objection to the detention order . On DATE ORG dismissed his objection .", "On DATE the ORG filed a bill of indictment with ORG , charging the applicant under LAW ( D ) of LAW and LAW , DATE , DATE and CARDINAL of LAW , with disloyalty to national defence by way of espionage .", "The applicant maintained before the General Staff Military Court that he had been coerced by ORG officers into signing a statement while in custody . He claimed that he had sold the shop to ORG and that the photographs and maps did not belong to him . He requested that PERSON be heard by the court . He further contended that the search in the shop was illegal and that he had not been informed of the charges against him by the officials who had conducted the search . The applicant reiterated that he had sold books and silver accessories to a NORP official , PERSON and that this person had requested him to provide confidential information . He also contended that he had contacted PERSON and another NORP official , PERSON , whom he knew as “ LOC ” , in order to maintain his business and that the information that he had given was false . The applicant ’s representative stressed that the applicant ’s statements had been taken under torture by ORG officers . She referred in this connection to the medical report dated DATE prepared by the ORG military prison doctor who noted the presence of CARDINAL DATE ecchymoses on the applicant ’s arms . The applicant ’s representative also argued that the telephone conversations of the applicant , which were the sole evidence against him , had been obtained unlawfully by the ORG officers since there was no decision of a judge permitting them to tap his conversations on a public telephone . She therefore claimed that , in the absence of sufficient evidence , the applicant was innocent of the alleged crime .", "During the proceedings , ORG issued a summons requiring PERSON to give evidence . However , this person could not be found .", "On an unspecified date , a fingerprint expert conducted an analysis on the photographs and maps from the applicant ’s shop . He observed that none of the fingerprints found belonged to the applicant .", "On DATE the General Staff Military Court convicted the applicant as charged . The court considered that the information that the applicant had given could not be considered to be confidential . However , it held that , although the applicant had provided non - confidential or imaginary information in order to maintain his business contacts with the NORP officials , he had committed the offence of disloyalty to national defence by accepting their proposal to provide information . The court sentenced the applicant to DATE and QUANTITY months’ imprisonment , which was the minimum penalty prescribed by LAW D ) of LAW and LAW , DATE , DATE and CARDINAL of LAW . While the court dismissed the applicant ’s defence submissions , it did not address directly his allegations that his statements to the ORG officers had been obtained under torture and that his telephone conversations were unlawfully tapped by the ORG officers .", "On DATE the applicant appealed . He claimed that he was innocent of the crime since he had given false information to ORG and that he had never intended to betray his country . Relying on LAW , the applicant further argued that the first instance court had convicted him on the basis of unlawfully obtained evidence , in particular the unlawful tapping and recording of his telephone conversations by the ORG . He also complained that the court had not secured the attendance of ORG as a witness . Referring to the medical report dated DATE indicating ecchymoses on his arms , the applicant noted that the security forces had resorted to habitual methods to secure his conviction .", "On DATE ORG upheld the judgment of DATE . It approved the reasoning of the first instance court ’s judgment and noted that the latter had already accepted that the maps and photos had not belonged to the applicant and that it had not relied on the statements given by PERSON in the course of the preliminary investigation since he had not attended the trial . Accordingly , there was no deficiency or unlawfulness in the investigation leading to the applicant ’s conviction . The court therefore rejected the applicant ’s appeal .", "On DATE ORG decision was served on the applicant .", "A full description of the domestic law at the relevant time may be found in GPE and Others v. GPE , nos . PERSON and CARDINAL , § § CARDINAL - CARDINAL , ORG CARDINAL-IV ; and PERSON v. GPE ( no . CARDINAL ) , no . CARDINAL , § § DATE , CARDINAL DATE .", "Section CARDINAL of the Constitution of Military Courts Act then in force read as follows :", "“ Trial of civilians by military courts :", "... the offences referred to in GPE ... and CARDINAL of the Military Penal Code [ come within the jurisdiction of the military courts ] . ”", "According to LAW , hearings to be held by military courts shall be open to public . However , the military court may decide to close a part or whole of the hearing to the public if public morality or security so requires . Article CARDINAL further provides that the military court may also decide to remove the public when it holds a hearing to consider a request to close the hearings to the public ." ]

[ "6" ]

[ "6-1" ]

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[ "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "He was recognised at birth by his father , Mr F.", "At the time of the applicant ’s conception , his mother PERSON , née R – was married and CARDINAL children had been born of that marriage : A. , born in DATE , and J. , born in DATE .", "By a decree of CARDINAL DATE , the applicant ’s mother and her husband , PERSON , were pronounced judicially separated .", "By a deed of DATE , PERSON and PERSON divided their property inter vivos between their CARDINAL legitimate children , PERSON and PERSON the terms of the deed , which was signed before a notary , they retained a life interest by which the legitimate children agreed to let PERSON and PERSON continue to enjoy possession of their property as life tenants for the rest of their lives . The deed also contained a provision for revoking the gift for the purposes of ensuring that the terms and conditions were complied with . Lastly , when the deed was signed PERSON and PERSON declared that the CARDINAL donees were their only offspring .", "Mr M. died in DATE .", "In a judgment of CARDINAL DATE the GPE tribunal de grande instance declared the applicant to be the illegitimate child of PERSON , after finding that his status of illegitimate child had been fully established .", "NORP The DATE deed of inter vivos division ( donation - partage ) was challenged by the applicant on DATE after it had been established in DATE that he was PERSON son . No details have been provided regarding the outcome of that procedure .", "The applicant ’s mother died on DATE . The notary administering the estate informed the applicant by letter of CARDINAL DATE that his rights were confined to the reserved portion of his mother ’s estate since she had made a will bequeathing the disposable portion , that is , CARDINAL , to her son J. The notary told him that , as a child born of adultery , he was entitled to CARDINAL the share he would have received if he had been a legitimate child – namely , CARDINAL . He added that the applicant ’s brother and sister , PERSON and ORG , were willing to pay him MONEY ( ORG ) in cash . He pointed out in that regard that in the event of the subsequent birth of a child , only a monetary abatement was possible and in no circumstances an abatement in kind . He asked the applicant to inform him whether A. and ORG proposal was acceptable to him .", "No agreement was reached between the CARDINAL children .", "By a writ of action dated DATE , the applicant brought proceedings in the LAW tribunal de grande instance against the CARDINAL children born of his mother ’s marriage : PERSON and PERSON on Article CARDINAL of LAW , he sought an abatement of the inter vivos division , claiming a reserved portion of his mother ’s estate equal to the share payable to his joint heirs from the assets of his mother ’s estate , namely , CARDINAL of that estate , which was CARDINAL of PERSON and PERSON joint estate .", "After the ORG had found against GPE in the case of ORG v. GPE , on DATE , GPE passed Law no . DATE of DATE , amending its legislation and granting children born of adultery identical inheritance rights to those of legitimate children . That new PERSON came into force before the dispute that is the subject of the instant case was decided . It stipulated that its provisions were of immediate application to successions were already open on the date on which it came into force . Section CARDINAL(CARDINAL)(CARDINAL ) of the PERSON specified that , subject to any prior agreement between the parties or final court decision , the provisions relating to the new inheritance rights of illegitimate children whose father or mother was , at the time of their conception , bound by marriage to another person were applicable to successions that were already open on the date of publication of the PERSON in ORG of GPE and had not given rise to division prior to that date .", "In his recapitulatory pleading of DATE , the applicant relied on the provisions of the PERSON of DATE . In his submission , that PERSON repealed the provisions of LAW DATE stipulating that the rights of heirs entitled as a result of that PERSON to a reserved portion of the estate could not be exercised to the detriment of inter vivos gifts granted prior to the date on which it came into force . He argued that as those provisions of the PERSON of DATE had been repealed , he was entitled to bring an action for abatement under LAW even though the deed of inter vivos division had been signed on DATE .", "In a judgment of DATE , the LAW tribunal de grande instance held that the applicant was entitled to bring an action for abatement of the inter vivos division made by PERSON and PERSON in DATE . It observed , inter alia , that section CARDINAL of the Law of DATE , which had the effect of depriving illegitimate children of their inheritance rights where their parent had made gifts prior to the date on which that PERSON came into force , was contrary to Articles CARDINAL and CARDINAL of the LAW . The court held that that provision was also contrary to LAW , even if the latter had not expressly repealed the aforesaid section CARDINAL of the Law of DATE . The court also found as follows :", "“ Section GPE ) of the PERSON of DATE provides that this PERSON is applicable to successions already open on the date on which it comes into force ; subject to any prior agreement between the parties or final court decision , the provisions of this PERSON are applicable to successions already open on the date of publication of the LAW in the NORP Official Gazette where these have not given rise to division prior to that date .", "In the present case there has not yet been division of PERSON estate ; accordingly , the provisions relating to the new inheritance rights of illegitimate children whose father or mother was , at the time of their conception , bound by marriage to another person will apply .", "Consequently , the repeal by the Law of DATE of the provisions of LAW introduced by LAW DATE render the new provisions incompatible with section CARDINAL of the Law of DATE , this latter provision being already contrary to LAW .", "Indeed , it can not reasonably be argued that the legislature , in enacting the LAW , intended to maintain a provision contrary to the spirit and aim of the new PERSON .", "Mr PERSON must therefore be deemed entitled to bring an action for abatement under LAW even though the deed of inter vivos division was signed on DATE .", "... This court must therefore hold , in accordance with LAW , that Mr PERSON has the same inheritance rights as his brother and sister with regard to his mother ’s estate . ... ”", "The children born of the applicant ’s mother ’s marriage appealed . In a judgment of DATE , ORG set aside the lower court ’s judgment and declared that the applicant was not entitled to bring an action for abatement of the inter vivos division made on DATE by PERSON and PERSON between their legitimate children . It held that such a ruling was not inconsistent with the general principle of equality of rights regardless of birth , as guaranteed by LAW No . CARDINAL and Articles CARDINAL and CARDINAL of the Convention . It observed that the sole purpose of section CARDINAL of the Law of DATE was to prohibit heirs who had acquired rights to a reserved portion of the estate under that LAW and extended by LAW DATE from exercising them to the detriment of inter vivos gifts granted prior to CARDINAL DATE , without depriving the said heirs of their inheritance rights . It considered , above all , that there was objective and reasonable justification for section CARDINAL of the Law of DATE in the light of the legitimate aim pursued , namely , ensuring peaceful family relations by securing rights acquired in that context – sometimes long - standing ones – without at the same time creating an excessive imbalance between heirs . It pointed out that the provisions of the impugned section CARDINAL were of limited scope both in terms of time and the type of voluntary disposition concerned .", "The applicant lodged an appeal on points of law . In his opinion , which was communicated to the parties , the advocate - general at ORG recommended dismissing the appeal . He made the following submissions to the judges of ORG of ORG :", "“ ... The difficulty submitted for your examination does indeed arise from the different approach proposed by the transitional provisions of DATE . Whilst neither successions already opened , nor inter vivos gifts granted prior to the coming into force of the Law of DATE , could be challenged under that PERSON , the PERSON of DATE allows illegitimate children whose father or mother was , at the time of conception , bound by marriage to another person to assert inheritance rights in respect of successions already open prior to publication of that PERSON .", "That difference justifies a non - restrictive application of the provisions of the Law of DATE . Only where there has been actual division , or an agreement has been reached between the parties or a final court decision delivered can the new inheritance rights of such children be excluded where the succession has already been opened . On account of the action for an abatement , the succession already opened on the date of publication of the Law of DATE can not have “ given rise to division ” on the date of publication of that PERSON .", "I therefore find the submission that the LAW DATE is not applicable difficult to sustain . The terms of LAW CARDINAL of the Law of DATE , however , are entirely unambiguous . Heirs who have acquired rights under this PERSON to the reserved portion of the estate can not exercise those rights “ to the detriment of inter vivos gifts granted before the PERSON came into force ” . Should , then , these provisions be deemed to have been tacitly repealed ?", "Without having regard to the time factor , the applicant maintains in his supplementary pleadings that it must be concluded from the clear contradiction between the transitional provisions of the CARDINAL Laws that those governing the Law of DATE have been tacitly repealed . Whilst the approach is different between the transitional provisions enacted in DATE and those enacted in DATE , they do not , however , appear to me to conflict .", "By excluding any challenge to inter vivos gifts granted prior to the coming into force of the PERSON of DATE , the legislature intended to guarantee the legal security required by such gifts . There is nothing to justify calling that legal security into question in DATE , since the earlier transitional provisions complement those laid down by DATE .", "It is on those grounds that I invite you to dismiss the first ground of the appeal : the inter vivos gift made on DATE can not be called into question on account of inheritance rights arising from new rules concerning the determination of filiation . In that connection , whilst it remains debatable whether there had actually been division prior to publication of the LAW , the existence of an inter vivos gift granted prior to the coming into force of the LAW of DATE is not in dispute . ... ”", "ORG dismissed the appeal in a judgment of DATE . It found that the effect of section CARDINAL(CARDINAL)(CARDINAL ) of the LAW DATE , in the version applicable to the facts of the present case , was that , subject to any prior agreement between the parties or a final court decision , the provisions relating to the new inheritance rights of illegitimate children whose father or mother was , at the time of conception , bound by marriage to another person were applicable only to successions that were already open on DATE and had not given rise to division before that date . It found that as there had been division on PERSON death DATE that is , prior to DATE – the above - mentioned provisions were not applicable .", "An inter vivos division ( donation - partage ) is a deed by which a person divides his or her property during his lifetime among all his presumptive heirs ( including , since the PERSON of DATE , children born of adultery ) . The deed must be drawn up before a notary and an inter vivos division can concern only present , not future , property . All the heirs must participate in the inter vivos division . The property being divided is valued on the date of the gift , and can not subsequently be revalued .", "When making an inter vivos division , the donor determines the share of property to be distributed to his or her heirs . He or she can either divide the property into equal shares or give a larger share to CARDINAL of his or her children , provided that this does not reduce the portion statutorily reserved to the heirs .", "Each child is entitled to a minimum share ( the “ reserved portion ” ) in his or her GPE estate and can bring an “ action for abatement ” ( Article CARDINAL - CARDINAL of LAW ) if the division of the estate at the time of death infringes that right .", "The relevant provisions of LAW read as follows :", "“ Anyone shall be entitled to divide and distribute his assets and his rights among his presumptive heirs .", "This voluntary disposition may be made in the form of an inter vivos division or a will . It is subject to the formalities , conditions and rules prescribed for inter vivos gifts in the former case and those prescribed for wills in the latter case . ”", "“ If not all the assets or rights left by the donor or testator on DATE of his death have been included in the division , those assets or rights not included shall be assigned or distributed in accordance with the law . ”", "“ An inter vivos division shall concern only present property .", "The gift and the division can be done by separate deeds provided that the donor signs both deeds . ”", "Law no . CARDINAL of DATE introduced ORG seq . of ORG , instituting the possibility of an action for abatement , and came into force on DATE .", "“ A descendant who has not participated in the inter vivos division of the estate , or has received a lower share than his or her reserved portion , may bring an action for abatement if , when the succession is opened , there are insufficient assets not included in the division of the estate to constitute or complete his or her reserved portion , regard being had to any voluntary dispositions from which he may have benefited . ”", "“ Inter vivos divisions are subject to the rules governing inter vivos gifts as regards determination of the amount , calculation of the reserved portion and reductions .", "An action for abatement can not be brought until after the death of the ascendant who has made the division or the surviving ascendant in the event of a division by the mother and father of their estate among all their issue . Such an action shall become time - barred DATE after the death .", "A child not yet conceived at the time of the inter vivos division may bring a similar action for the purpose of constituting or supplementing his or her reserved portion . ”", "Section CARDINAL of the Law of DATE provided :", "“ The provisions of this PERSON shall be directly applicable , irrespective of the date of the voluntary disposition in question , to successions opened after it comes into force . They shall also apply , subject to any contrary agreement , to estates that have not yet been liquidated , where no request for division of the estate has been lodged before DATE . ... ”", "NORP The relevant provisions of LAW , introduced by LAW no . CARDINAL of DATE on filiation , provide :", "“ Children or their issue shall inherit from their father and mother , grandfathers , grandmothers or other ancestors , irrespective of sex or primogeniture , and even if they are born of different marriages .", "The estate shall devolve upon them in equal portions and per capita if they are all first - degree issue and heirs in their own right ; they shall inherit per stirpes if all or some of them inherit through their ascendants . ”", "“ Children born out of wedlock shall , in general , inherit from their father and mother or other ancestors , as well as from their brothers and sisters or other collateral relatives , on the same terms as legitimate children . ”", "“ Children born out of wedlock whose father or mother was , at the time of their conception , bound by a marriage of which legitimate children were born are entitled to inherit from that parent in competition with the legitimate children ; however , they shall each receive CARDINAL of the share to which they would have been entitled if all the children of the deceased , including themselves , had been legitimate .", "The children born of the marriage injured by the adultery shall inherit in addition the fraction by which the adulterine child ’s share of the estate is thus reduced ; it shall be divided between them in proportion to their share in the estate . ”", "Section CARDINAL of the Law of DATE provided :", "“ The inheritance rights instituted by the present PERSON or resulting from the new rules regarding determination of filiation shall not be exercised in respect of successions that have been opened before it came into force .", "The rights statutorily reserved to heirs that are instituted by the present PERSON or result from the new rules regarding determination of filiation shall not be exercised to the detriment of inter vivos gifts made before it came into force . ... ”", "On DATE Law no . CARDINAL of DATE “ on the rights of the surviving spouse and children born of adultery and modernising various provisions of the law of succession ” was published in ORG . It abolished any difference in treatment of illegitimate children whose father or mother was , at the time of their conception , bound by marriage to another person . LAW is worded as follows :", "“ II . - The present PERSON shall apply to successions that are already open as of the date provided for in I , subject to the following exceptions :", "... CARDINAL Subject to any prior agreement between the parties or final court decision , the following shall apply to successions already open on the date of publication of the present PERSON in ORG of GPE and not having given rise to division prior to that date :", "the provisions relating to the new inheritance rights of illegitimate children whose father or mother was , at the time of conception , bound by marriage to another person ; ... ”", "According to the case - law of ORG , an inter vivos division is a division of property in advance by which the donor ’s property is divided between the joint donees and becomes a division of an inheritance on the donor ’s death ( PERSON . PERSON . I , DATE , ORG . DATE , I , no . CARDINAL ) . ORG of ORG held that where an agreed division of property was challenged before a notary the inheritance was disputed and the estate could not therefore be regarded as having been liquidated ( PERSON . PERSON . I , DATE , ORG . DATE , I , no . CARDINAL , appeal no . CARDINAL - CARDINAL.CARDINAL ) .", "In a judgment of CARDINAL DATE , delivered after the judgment that is the subject of this case , ORG held that the provisions of the Law of DATE relating to the new inheritance rights of children born of adultery were applicable to a succession opened before CARDINAL DATE where this had not given rise to a division prior to CARDINAL December CARDINAL . In that case , which concerned GPE , the succession had opened in DATE ( PERSON . PERSON . I , DATE , ORG . DATE , I , no . CARDINAL , appeal no . CARDINAL - CARDINAL.CARDINAL ) . The court gave the following reasons for its judgment :", "“ PERSON ... died on DATE leaving provision in his will for Mr PERSON ... , his son adopted under NORP law , as universal legatee , with a condition that he care for the CARDINAL children conceived whilst he was bound by marriage to a person other than their mother : Mr PERSON ... and PERSON ... , the latter deceased on DATE , and whom he had recognised after the death of his wife . During the proceedings brought by Mr F ... for recognition of his ownership of a plot of land known as “ Atioro ” , situated in PERSON , which he claimed belonged to PERSON ... and for division of that land into CARDINAL shares , Mr NORP ... sought an abatement of the legacy on grounds of an infringement of the rights of the heirs entitled to a reserved portion of the estate .", "In dismissing PERSON claim , ORG noted that the children born of adultery prior to the date on which the Law of DATE came into force had no inheritance rights in respect of their parent ’s estate , so had no legal basis for disputing the legacy left by PERSON ... to Mr PERSON ....", "In ruling thus , whereas the provisions relating to the new rights of children born of adultery were applicable to PERSON estate ... as the division had not been made before DATE , ORG , which added a condition to the PERSON not contained therein , infringed the above - mentioned provisions . ” ..." ]

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[ "14", "P1" ]

[ "P1-1" ]

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[ "The applicants are former members of ORG who were elected at the general election of DATE . At that time they were members of ORG ( Halkın Emeği Partisi ) , which was founded in DATE but proscribed and dissolved by ORG on DATE on account of what were held to be separatist activities . By that date the applicants had joined ORG ( PERSON ) , which had been set up in the meantime .", "On DATE ORG lifted their parliamentary immunity on an application , first lodged in DATE and subsequently resubmitted on several occasions , by the public prosecutor attached to ORG ( PERSON savcısı DATE “ the public prosecutor ” ) . He accused them of committing the offences defined in LAW of LAW ( see paragraph CARDINAL below ) , which were classified as terrorist crimes in LAW ( Law no . CARDINAL – see paragraph CARDINAL below ) and thus came within the jurisdiction of the national security courts ( see paragraph CARDINAL below ) .", "On DATE , as they were leaving the parliament building , Mr Dicle and Mr Doğan were arrested on the public prosecutor ’s orders and taken into police custody at the headquarters of the anti - terrorist section of the GPE security police . On DATE their lawyers asked for their clients to be brought promptly before a judge and asked the public prosecutor for permission to speak to them . The written authorisation issued by the public prosecutor for that purpose specified that the interview – to be conducted DATE was to concern preparation of the appeal the applicants were intending to lodge against the lifting of their parliamentary immunity .", "The other CARDINAL applicants had refused to leave the parliament precinct , but on DATE they suffered the same fate as their CARDINAL colleagues .", "On DATE the public prosecutor extended the CARDINAL applicants’ detention in police custody until DATE on the ground that further investigations were needed ; his decision was based on section CARDINAL of Law no . CARDINAL governing procedure before the national security courts ( see paragraph CARDINAL below ) . While in police custody the applicants refused to make any statement .", "On DATE the lawyer acting for Mr Dicle and Mr Doğan , referring to his request of DATE that they be brought promptly before a judge ( see paragraph CARDINAL above ) , made another application to the same effect , relying on Articles CARDINAL and CARDINAL of the LAW , inter alia .", "On DATE ORG dismissed appeals lodged by the applicants against the lifting of their parliamentary immunity .", "NORP In the meantime , on DATE , a single judge of ORG had issued an order for the MPs’ detention pending trial , giving as the reasons the “ character and nature ” of the offence concerned and the “ evidence obtained ” .", "On appeal by the applicants , a bench of CARDINAL judges of the same court upheld the above order on DATE , holding that it was necessary “ on account of the classification and nature of the offences [ concerned ] , the charges already preferred , the length of [ the applicants’ ] detention and the fact that the case [ was ] still at the investigation stage ” .", "On DATE the applicants lodged a further application for release , which was dismissed by ORG on CARDINAL May on the ground that the case was “ still at the investigation stage ” and that to date there had been “ no change in the detained MPs’ favour ” .", "On DATE the public prosecutor filed submissions accusing the applicants of separatism and undermining the integrity of the ORG , which are capital offences under LAW of LAW ( see paragraphs CARDINAL below ) .", "On DATE ORG delivered its judgment . Applying section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG – see paragraph CARDINAL below ) , it sentenced Mr PERSON and PERSON PERSON to DATE and CARDINAL months’ imprisonment for separatist propaganda and Mr NORP , Mr Dicle , PERSON PERSON and PERSON to DATE imprisonment for membership of an armed gang ( LAW of LAW see paragraph CARDINAL below ) .", "On appeal by the applicants and the public prosecutor , ORG quashed PERSON Türk ’s conviction on DATE and ordered his release , on the ground that he had contravened section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) but not LAW of LAW . It upheld the other applicants’ convictions .", "Article CARDINAL of the LAW provides :", "“ Everyone has the right to liberty and security of person .", "No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law :", "…", "The arrested or detained person must be brought before a judge within TIME at the latest or , in the case of offences committed by CARDINAL person , within DATE … These time - limits may be extended during a state of emergency …", "…", "A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful .", "Compensation must be paid by the ORG for damage sustained by persons who have been victims of treatment contrary to the above provisions , as the law shall provide . ”", "Article CARDINAL of the LAW provides : “ International treaties lawfully brought into force shall have the force of law ... ”", "The relevant provisions of LAW read as follows :", "Article CARDINAL", "“ It shall be an offence , punishable by the death penalty , to commit any act aimed at subjecting the ORG or any part of the ORG to domination by a foreign ORG , diminishing the ORG ’s independence or removing part of the national territory from the ORG ’s control . ”", "Article CARDINAL", "“ Any person who , with the intention of committing the offences defined in LAW ... , forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment .", "The other members of the gang or organisation shall be sentenced to not CARDINAL and not more than fifteen years’ imprisonment . ”", "Section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) classifies the offences defined in ORG CARDINAL and CARDINAL of LAW as terrorist crimes .", "Before being amended on DATE , section CARDINAL ( CARDINAL ) of the LAW provided :", "“ Written and oral propaganda , meetings , assemblies , and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of its people are forbidden , regardless of the methods or intentions behind such activities . Those conducting such activities shall be punished with a sentence of CARDINAL years’ imprisonment and a fine of MONEY ... ”", "Under LAW no . CARDINAL on procedure in the national security courts , only these courts can try cases involving the offences defined in Articles CARDINAL and CARDINAL of LAW .", "At the material time section CARDINAL of Law no . CARDINAL of DATE , amending the legislation on criminal procedure , provided that , with regard to offences within the jurisdiction of the national security courts ( see paragraph CARDINAL above ) , any arrested person had to be brought before a judge within TIME at the latest , or , in the case of offences committed by CARDINAL person , within DATE . In provinces where a state of emergency had been declared , these time - limits could be extended to DATE and DATE respectively .", "Section CARDINAL of Law no . CARDINAL on the payment of compensation to persons unlawfully arrested or detained provides :", "“ Compensation shall be paid by the ORG in respect of all damage sustained by persons", "( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute law ;", "( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;", "( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;", "( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;", "( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;", "( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial … , or are acquitted or discharged after standing trial ; or", "( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only . ”", "On DATE the Permanent Representative of GPE to ORG sent the Secretary General of ORG the following notice of derogation :", "“ CARDINAL . GPE is exposed to threats to its national security in LOC which have steadily grown in scope and intensity over DATE so as to [ amount ] to a threat to the life of the nation in the meaning of Article CARDINAL of the Convention .", "During DATE , CARDINAL civilians and CARDINAL members of the security forces have been killed by acts of terrorists , acting partly out of foreign bases . Since DATE only , the numbers are CARDINAL civilians and CARDINAL members of the security forces .", "The threat to national security is predominantly [ occurring ] in provinces of LOC and partly also in adjacent provinces .", "Because of the intensity and variety of terrorist actions and in order to cope with such actions , the ORG has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public , partly emerging from other parts of GPE or even from abroad and with abuses of trade - union rights .", "To this end , the Government of GPE , acting in conformity with LAW of LAW , has promulgated on DATE the decrees with force of law [ nos . ] CARDINAL and CARDINAL . These decrees may in part result in derogating from rights enshrined in the following provisions of LAW [ on ] Human Rights and Fundamental Freedoms : Articles CARDINAL , CARDINAL , DATE , DATE , DATE and DATE . A descriptive summary of the new measures is attached hereto ... ”", "The descriptive summary of the content of Legislative Decrees nos . CARDINAL and CARDINAL reads as follows :", "“ A. By virtue of the decrees having force of law [ nos . ] CARDINAL and CARDINAL on the state of emergency region , the state of emergency region governorship has been empowered with the following additional powers .", "ORG , upon the proposal of the Governor of the state of emergency region can temporarily or permanently ban the publication ( regardless of the location of the printing press ) , which is prone to cause a serious disruption in the public order of the region or excitement of the local people or to handicap the security forces in performing their duties by misinterpreting the regional activities . This also includes , if necessary , the power to order the closure of the printing press concerned .", "The Governor of the state of emergency region can order persons who continuously violate the general security and public order , to settle at a place to be specified by ORG outside the state of emergency region for a period which shall not exceed the duration of the state of emergency . At their request , the persons concerned may receive financial aid from ORG . The particulars for this assistance shall be determined by ORG .", "The Governor of the state of emergency region ( or the delegated provincial Governor ) can suspend ( DATE ) or require prior permission for certain labor disputes related activities like strike and lockout .", "The Governor can also ban , or take preventive measures against certain activities like destruction , looting , boycotting , slowing down of work , restricting the freedom of work and closing down of business .", "The Governor of the state of emergency region can order the temporary or permanent evacuation , change of place , regrouping of villages , grazing fields and residential areas for reasons of public security .", "The Governor of the state of emergency region can order the relevant public institutions in the state of emergency region to transfer permanently or temporarily to other positions their public officials who are deemed to be harmful to general security and public order , the concerned public official shall remain subject to the provisions of the special law on civil service applicable to him .", "B. No legal claims of criminal , pecuniary or legal nature can be brought against , nor can any legal steps be taken with the judicial authority for this purpose in respect of any decision taken or any act performed by the Minister of ORG , the Governor of the emergency region and other governors , when exercising the power under the decree no . CARDINAL having force of law .", "C. No interim decision to suspend the execution of an administrative act can be taken during proceedings of an administrative suit which has been filed against the act(s ) performed when exercising the power given by the law of emergency no . CARDINAL to the Minister of Interior , the Governor of the state of emergency region and the provincial governors .", "D. The suit of nullity can not be filed against administrative acts performed by the Governor of the emergency region when exercising the power given to him under the decree having force of law no . CARDINAL . ”", "According to a note in the notice of derogation , “ the threat to national security [ was ] predominantly occurring ” in the provinces of ORG , ORG , GPE , GPE , GPE , PERSON , ORG , Batman and PERSON ( see paragraph CARDINAL below ) .", "In a letter of CARDINAL DATE ORG of GPE informed the Secretary General that Legislative Decree no . CARDINAL had been replaced by Legislative Decree no . CARDINAL , promulgated on DATE . An appendix to the above letter , containing a descriptive summary of the decree , reads as follows :", "“ CARDINAL . The powers of the Governor of the state of emergency under ORG no . CARDINAL have been limited to the region where a state of emergency is in force . Thus , the adjacent provinces have been excluded from the competence of the Governor .", "NORP The special powers given to the Governor of the state of emergency by virtue of Decree with Force of Law no . CARDINAL have been restricted to measures dealing with terrorist activities aiming at the destruction of fundamental rights and freedoms .", "The powers of the Minister of ORG [ to ] ban any publication or order the closure of the printing press ( regardless of the location ) is restricted . According to the new provision , the Minister of ORG has at first to issue a warning to the owner or the publisher of the publication . If the owner or the publisher continues to print or distribute the controversial issue , then the Minister concerned may temporarily or permanently ban the publication and , if necessary , may also order the closure of the printing press for a maximum period of DATE , which may , however , be extended to DATE in case of repetition . No maximum period for closure of the printing press has been stipulated by the ( abrogated ) Decree no . CARDINAL ( Compare § A ( CARDINAL ) of the Descriptive Summary attached to LAW .", "NORP The authority of the Governor of the state of emergency to order persons to settle at a specified place outside the state of emergency region has been restricted by virtue of the new Decree . The persons who are expelled from the state of emergency region are not obliged to settle in a specified place . Hence , they will be free to choose their residence out of the region except when they request financial aid . In this case they have to settle at a specified place ( See § A ( CARDINAL ) of previous Descriptive Summary ) .", "Referring to the paragraphs A ( CARDINAL , DATE , DATE and DATE ) of the Descriptive Summary of DATE ( which are related to strikes , lockout and some other activities of labor unions , evacuation and regrouping of villages , transfer of public officials to other posts or positions ) , it should be noted that the adjacent provinces have been excluded by virtue of the new decree .", "As to paragraph CARDINAL of the previous Descriptive Summary , a new clause has been included in the new Decree safeguarding the right to file an action against the administration ( ORG ) for loss or damages arising out of the performance of the acts taken under the emergency measures . ”", "On DATE the Permanent Representative of GPE wrote to the Secretary General in the following terms :", "“ As most of the measures described in the decrees which have the force of law ORG . CARDINAL and CARDINAL that might result in derogating from rights guaranteed by ORG CARDINAL , CARDINAL , DATE , DATE , DATE and DATE of the LAW , are no longer being implemented , I hereby inform you that GPE limits henceforward the scope of its LAW with respect to LAW only . The derogation with respect to Articles DATE , DATE , DATE , DATE and DATE of the LAW is no longer in effect ; consequently , the corresponding reference to these Articles is hereby deleted from the said LAW . ”", "On DATE the Permanent Representative of GPE informed the Secretary General that by legislative decrees of DATE , which had entered into force on DATE , the state of emergency had been lifted in the province of ORG and proclaimed in the province of ORG ." ]

[ "5" ]

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

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[ "5" ]

[ "5-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr L. Paproth , a lawyer practising in GPE .", "Since DATE the applicant , a doctor , had been employed as an expert by the medical service of the NORP health insurance which provides medical expert reports to health insurance companies ( GPE ORG in ORG ) .", "On DATE the applicant ’s employer ordered him to conduct a medical examination of an apprentice with a view to her being employed by a client health insurance company . On CARDINAL and DATE the applicant contested this instruction as he feared a “ possible bias ” which could lead to difficulties if he had to work with the apprentice in the future . He did not specify exactly what those difficulties might be .", "Following this refusal and CARDINAL warnings ( Abmahnungen ) concerning the applicant ’s failure to follow other instructions from his employer , he was dismissed on DATE .", "Subsequently , he lodged an action with ORG to have his dismissal annulled . He argued that a “ moral dilemma ” had prevented him from carrying out the requested examination .", "On DATE ORG found for the applicant . It argued that , although he had not provided an objective or clear reasoning , the applicant had proved that he had experienced a subjective moral dilemma which could justify his refusal to carry out the examination .", "On DATE ORG quashed that decision and dismissed the applicant ’s action , arguing that the applicant could not rely on his freedom of conscience for the following reasons : Firstly , when he had refused to carry out the examination on DATE , the applicant had not mentioned a moral dilemma , but referred only to a fear of “ bias ” . Moreover , the applicant could not rely on a moral dilemma , as he had at CARDINAL point – even if only for DATE been prepared to carry out the requested examination , which proved that he had not felt bound by an unconditional , compelling decision of conscience ( unbedingt verpflichtende GPE ) . Secondly , even assuming that his decision had been based on conscience , it had been impossible for the applicant ’s employer , on the basis of the applicant ’s reasoning , to appreciate that he had been experiencing a moral dilemma . In particular , the applicant had overlooked the fact that no conflict of interest would have arisen regardless of whether the applicant had recommended the apprentice for employment or not : he would only have had to work with the apprentice if he had recommended her . If he had decided in her favour , no question of conflict would have arisen . If the applicant had not recommended her , any future conflict would have been excluded because he would not have had to work with her .", "On DATE ORG refused the applicant leave to appeal on points of law as ORG decision had not diverged from the case - law of ORG .", "On DATE ORG refused to admit the applicant ’s constitutional complaint , and confirmed that ORG reasoning had not violated his freedom of conscience ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE criminal proceedings , instituted against the applicant on suspicion of tax evasion , were discontinued on exonerative grounds .", "In DATE the applicant instituted proceedings in GPE ( “ ORG , ” PERSON районний суд м. ORG ) , seeking compensation from the ORG budget for moral damage inflicted by the allegedly unlawful actions of the investigating authorities .", "On DATE ORG rejected the applicant 's claims as unsubstantiated . On DATE ORG ( “ ORG , ” Дніпропетровський обласний суд ) quashed this judgment and remitted the case for a fresh consideration .", "On DATE ORG awarded the applicant CARDINAL hryvnyas ( ORG ) in moral damage without specifying the debtor . This judgment was upheld by ORG on DATE and became final . The applicant unsuccessfully attempted to obtain a supervisory review of the CARDINAL rulings , seeking a higher amount of compensation .", "On DATE the Dnipropetrovsk Regional Treasury ( Управління державного казначейства у GPE області ) transferred the judgment of DATE to ORG ( Державне казначейство GPE ) for enforcement . ORG did not pay the debt and requested ORG to lodge a supervisory review request ( a protest ) against the court rulings of CARDINAL and CARDINAL DATE . On DATE the Deputy Regional Prosecutor ( GPE прокурора ORG області ) lodged a protest with ORG alleging that no compensation should have been awarded .", "On DATE the ORG of ORG dismissed the protest and upheld the previous CARDINAL rulings . The Deputy Prosecutor General lodged a protest with ORG against all CARDINAL court rulings .", "In its final decision of CARDINAL DATE , ORG upheld the rulings at issue and amended the judgment of DATE to specify that the debt was to be paid by the ORG GPE ( “ ORG , ” PERSON казначейства у PERSON GPE ) . The applicant unsuccessfully attempted to lodge a cassation appeal against this final decision , seeking a higher amount of compensation .", "On DATE ORG ( “ the Bailiffs , ” PERSON виконавчої служби NORP районного управління юстиції QUANTITY м. Дніпропетровську ) initiated the enforcement proceedings in respect of the amended judgment of DATE .", "On DATE the Bailiffs imposed a fine on Ms G. , the Head of the Zhovtnevy Treasury , for her failure to ensure the enforcement of the judgment in due time . Ms PERSON appealed to ORG ( “ ORG , ” Жовтневий районний суд PERSON GPE ) .", "On DATE ORG allowed PERSON appeal , having found that the judgment had not been enforced on account of a failure in the statutory mechanism and the lack of budgetary allocations . The applicant 's appeal against this judgment was returned as “ not lodged ” in view of his failure to rectify its procedural shortcomings .", "On DATE the Bailiffs discontinued the enforcement proceedings on the ground that the collection of the debt was not possible . The applicant unsuccessfully attempted to institute criminal investigation into the non - enforcement .", "The judgment of DATE remains unenforced to the present day .", "The relevant domestic law is summarised in the judgment of PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The first applicant company is the owner and publisher of the DATE newspaper ORG ; the second applicant company is the owner of the online newspaper ORG .", "NORP In DATE criminal investigations were launched in respect of A and B who were suspected of the repeated and serious ill - treatment and sexual abuse of CARDINAL-year - old C , which had caused severe injuries . C is A ’s biological daughter and B ’s stepdaughter . C was taken to hospital and several media reported the case .", "At that time D , C ’s biological mother , who had learned from the media about what had happened to her daughter , wanted to see her but , since she did not have custody of her , this request was refused . Thereupon she contacted the first applicant company in the hope that it would help her obtain contact with PERSON , a journalist for the first applicant company , visited her at her home , took pictures of her , received from D a picture showing C at DATE , accompanied D to the hospital where C was staying and took further pictures there . On the basis of this material , at DATE several articles on the case of C were published in GPE , as well as a call for donations ( GPE ) for C. Once PERSON ( ORG ) became aware of these events it advised D and her spouse that it would be in ORG ’s best interests if they refrained from providing pictures of her and further information to the media .", "After C left hospital in DATE she stayed with NORP On DATE custody of C was transferred to ORG for the period of DATE to CARDINAL DATE and then from DATE it was transferred to NORP", "The trial of B and A was held in DATE and media interest in the case grew again . At the same time C had a relapse and began suffering from severe psychological problems again , making it necessary for her to be re - admitted to hospital .", "On DATE A and B were convicted of aggravated sexual abuse of minors ( schwerer sexueller PERSON ) , deliberate aggravated bodily harm ( absichtliche schwere GPE ) and ill - treatment of minors ( PERSON ) . They were sentenced to DATE imprisonment and ordered to pay compensation for non - pecuniary damage .", "The first applicant company published CARDINAL articles in ORG on DATE and DATE respectively , using the first name of C , the full names of A and B , and illustrating them with photographs of A and B The second applicant company published CARDINAL articles on its website www.krone.at on CARDINAL and DATE and , in addition to the information contained in the articles published in ORG , it also published photos of C , including a close - up of her face .", "On DATE , with D ’s consent , ORG transferred custody rights in relation to CARDINAL specific task back to ORG , namely on the issue whether , in respect of the reporting on the trial of A and B , C had compensation claims against certain newspapers and , if necessary , to take the appropriate measures .", "On DATE an article was published in the first applicant company ’s newspaper ( ORG ) entitled “ C case : when humans turn into animals ” ( “ Fall C : PERSON zum Tier werden ” ) , which read as follows :", "“ Modesty – what a fine word . A word that presupposes respect . But how out of place coming from the mouth of a father who kicked his CARDINAL-year - old daughter with his bare feet until several of her ribs were broken . How out of place when the same father claims that he did not treat his daughter ’s injuries caused by a red - hot iron because modesty prevented him from touching her breasts ...", "X ORG . CARDINAL judges and CARDINAL jurors have to pronounce sentence in CARDINAL sets of proceedings against A and B ( both [ age ] ) : A and B , known to PERSON readers as the parent torturers . Their victim : C , A ’s daughter from his first marriage . A girl who , after her GPE divorce , lived for a long time with her grandparents in PERSON child who could n’t wait to join her father and his second wife B here in LANGUAGE – and ended up in hell . Literally ill - treated till she bled . Tortured and abused .", "Members of the jury turn ghostly white when public prosecutor PERSON reads from the prosecution file : ‘ C was injured with red - hot spoons , deprived of her virginity with a cooking spoon , burnt with a hot iron . She was hurled against the wall until her skull fractured . C was also tied up to her bed in prayer position for TIME on end . She was badly injured with a kitchen knife ... ’", "Why ? Sometimes it is not important why human beings behave like animals . Sometimes the facts are enough . And yet Judge PERSON proceeds brilliantly to shed light on every aspect of this crime against a child . For TIME on end he listens patiently to the whimpering defence of the father . He patiently sits through the hair - raising account of the stepmother .", "The accused agree on CARDINAL thing . Neither will admit responsibility . Just a touch of corporal punishment to keep family life intact DATE that much they admit . Both say they were afraid of or were dominated by the other .", "A : ‘ I ’m fond of all CARDINAL ( ! ) of my children , including C. I was dominated by my wife , and when she told me that C masturbated I believed her and had to do something’ he says . And his wife : ‘ I just wanted to protect my other children from C so I hit her once and I might have pulled her hair.’", "Be that as it may , the way the couple defend themselves in court is nothing short of disgusting . As I just said , the facts speak volumes .", "You listen to what went on for DATE in the flat in FAC . You close your eyes – and still see C. Who actually delivered the blows ceases to matter .", "What matters is that C is now living safely with her real mother and a caring stepfather . She has just spent her first ever holiday in GPE . She ’s made friends in a new school .", "She can certainly not understand everything that happened . It can only be hoped that DATE she ’ll be able to forget . And that the father ’s wish ( ‘ I ’d like to see my C again some day’ ) is never granted . ”", "On DATE the second applicant company published an article on its website ( www.krone.at ) entitled “ Start of the trial in the C case ” ( Auftakt zum Prozess i m Fall C ) . Its text is identical to the above article .", "On DATE a further article was published in the first applicant company ’s newspaper ( ORG ) , entitled “ Maximum sentence for parent torturers ! ” ( “ Höchststrafe für ORG ! ” ) , which read as follows :", "“ The triangular shape of the iron is like a permanent reminder to C , ‘ branded’ into her child ’s body . ‘ The violence against this girl ranks as one of the most abhorrent of GPE says Judge PERSON in pronouncing judgment on the parent torturers . A total of DATE in prison DATE the maximum sentence .", "What must C ’s small body have endured ? What thoughts must have gone through the CARDINAL-year - old girl ’s head when her stepmother and her father either ill - treated her or watched the other do it ?", "It ’s not the sober words of forensic expert ORG that send a shudder down your spine . It ’s the thought of what the girl must have endured before ending up in hospital with multiple rib fractures , a fractured skull , burns to her skin , cuts going right through to the bone , stripped of her virginity and dignity . A child ’s mind damaged beyond repair .", "The ‘ GPE listen with bowed heads to what the experts say about ‘ their child’ . They hear how cosmetic surgery can reconstruct , but how no medicine can cure the psychological damage . The effects of her ordeal will remain with her for life .", "‘ She was a very nice , quiet ORG says her former head teacher . ‘ We never suspected anything . Her father enquired about her lovingly . When he came in to say that C would not be attending any more because she was in GPE , no one imagined that she was lying at home injured . ”", "On DATE the second applicant company published an article on its website ( www.krone.at ) entitled “ Maximum sentence for parents in C case ” ( “ Höchststrafe für Eltern i m Fall C ” ) . Its text is identical to the above article .", "On DATE C , represented by ORG , filed a claim for compensation against the first applicant company , relying on section FAC of LAW on the ground that the first applicant company had caused her suffering by revealing her identity as the victim of a criminal offence by publishing her first name , the full names and pictures of A and B in CARDINAL articles which had appeared on CARDINAL and DATE . C also filed a compensation claim against the second applicant company relying on sections CARDINAL and CARDINAL of LAW for revealing her identity as the victim of a criminal offence and for violating her right to protection of her strictly private life ( höchstpersönlicher PERSON ) in CARDINAL articles published on CARDINAL and DATE .", "On DATE ORG ( PERSON für PERSON ) granted both requests for compensation . As regards the first applicant company it found that the CARDINAL articles published in the newspaper ORG on DATE and DATE had violated ORG right to protection of her identity as the victim of a criminal offence under section ORG of LAW and ordered the first applicant company to pay MONEY ( ORG ) in compensation to C for each of the articles , altogether ORG CARDINAL . It also found that C was entitled to compensation from the second applicant company as the articles published on its website on CARDINAL and DATE , including photos of her , had violated her right to protection of her identity as the victim of a criminal offence and had also interfered with her strictly private life in a manner which exposed and compromised her in public , thereby breaching her rights under section CARDINAL of LAW . ORG ordered the second applicant company to pay ORG CARDINAL,CARDINAL in compensation to C for each of the articles , altogether ORG CARDINAL . It also ordered the applicant companies to publish a summary of its judgment .", "As regards the applicant ORG argument that D , C ’s biological mother , had consented to the disclosure of ORG identity and the publication of photos of her , ORG , having heard as witnesses D , her husband , and PERSON , a journalist writing for the applicant companies , considered that at the time of the publication of the impugned articles there had been no valid consent as neither the person with custody of C nor any other reference person ( PERSON ) had consented to the disclosure of C ’s identity or the publication of pictures of her . Even considering that D had validly consented to the applicant companies’ reporting on the case of C and to publishing pictures of her back in DATE , that consent could not automatically cover publications DATE in the context of the trial of A and B. After such a long period of time had passed , confirmation of D ’s consent should have been sought as in case of doubt nobody can be deemed to have consented to an interference with his or her personality rights for an indefinite period of time . Moreover , in DATE D had explicitly refused to give her consent to reporting in which ORG identity would be revealed to the public .", "As regards the compensation claim under section CARDINAL of LAW , ORG found that a person was entitled to compensation if his or her strictly private sphere had been discussed in the media in a manner which was apt to expose and compromise him or her in public . Into this strictly private sphere fall the inner circle of one ’s private life ( engster ORG menschlichen Intimsphäre ) , emotions and physical sensations , one ’s sexual life , and contacts with one ’s closest persons of confidence ( FAC engsten ORG ) . The lurid presentation of the publications at issue , which made public highly sensitive details of the ill - treatment and sexual abuse to which C had been subjected and which were particularly humiliating , had interfered with ORG most intimate personal sphere . In weighing the interests of the applicant companies against those of C , ORG considered that the offensive details had not been necessary for informing the reader even in a detailed manner on the case of C , while on the other hand , a minor victim of crimes of this kind was entitled to particularly strong protection . ORG concluded that ORG interests protected by LAW had not been respected and that she was therefore entitled to compensation .", "As regards the compensation claim under section ORG of LAW found that by mentioning the first name of the victim , her age , the full names of the offenders , indicating their family relationship to the victim , by publishing pictures of the father and the stepmother and in CARDINAL articles even publishing photos of her , the victim became recognisable to a wide number of persons beyond the circle of those directly informed .", "In ORG view there was no predominant public interest which would have made revealing the victim ’s identity permissible . Such a predominant public interest must relate to the identity of the person , and that particular information should have a genuine news value . A merely general interest in appropriate press reporting on criminal cases was not sufficient . C was not a public figure and the mere fact that she had become the victim of a crime which attracted considerable public attention was not sufficient to consider her a person connected with public life . Also , the fact that the media had already reported on her in DATE , in some cases revealing her identity , did not make her a person connected with public life because a considerable amount of time had passed in the meantime and a newspaper ’s readership changed constantly . A genuine interest in the identity of the victim could not be established . There was no predominant public interest in revealing the identity of the offenders as the public could be informed on the psychological dynamics of crimes of violence and sexual abuse committed within the family without revealing the identity of the victim . Therefore , these articles , which had described in detail the severe illtreatment of the victim , constituted an intrusion into the victim ’s strictly private life and violated her interest in remaining anonymous . She was therefore entitled to compensation on this ground as well .", "As to the amount of the compensation , ORG stated that it had taken into account the particular gravity of the interference and the particularly large dissemination of the applicant ORG media . As regards the second applicant company , a higher amount had to be awarded as the compensation was based on CARDINAL grounds .", "On DATE the applicant companies appealed . They argued that there had been a predominant public interest in being informed of the identity of the offenders . The role of the media as public watchdog meant in the present case that they had the task of informing the public about a defenceless child who had become the victim in a family drama and to warn the public through giving a detailed report including personal details of the offenders and the victim , which was necessary for a public discussion of these events . They argued further that the reporting had been allowed because D had given her consent .", "On DATE ORG dismissed the appeal . It found that according to section ORG of LAW the identity of the victim of a criminal offence could only be revealed if there was a predominant public interest in that specific item of information . The permissibility of revealing the identity of an offender did not mean that the identity of the victim could also be disclosed . This question had to be examined separately and carefully . C was not a public figure nor was she a person otherwise connected with public life . Even accepting that there was a public interest in being informed of crimes of violence and sexual abuse committed within the family , that interest could be met without revealing the victim ’s identity . Also , the conditions for compensation under section CARDINAL of LAW had been met because the articles at issue contained a detailed description of the criminal acts committed , in particular of the injuries caused including the defloration of the victim , and thereby had discussed her strictly private life in a manner that was apt to expose and compromise her in public . As to the alleged consent of D to the applicant ORG publications , ORG found that ORG had properly examined this matter and had concluded that there had been no valid consent . Given that the maximum amount of compensation was ORG CARDINAL , the sums actually fixed were moderate .", "Section CARDINAL of LAW , which has the title “ interference with a person ’s most intimate personal sphere ” ( “ GPE des höchstpersönlichen FAC ) , reads as follows :", "“ ( CARDINAL ) If a person ’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public , the person concerned may claim compensation from the owner of the media for the injury suffered . The amount of compensation shall not exceed LAW ...", "( CARDINAL ) No compensation claim under paragraph CARDINAL exists if", "NORP the publication at issue is based on a truthful report on a public session of ORG or ORG , ORG , a regional diet or a committee of CARDINAL of these general representative bodies ;", "NORP the publication is true and has a direct connection to public life ;", "in the circumstances it could have been assumed that the person concerned had agreed to the publication ;", "it is a direct broadcast on radio or television ( live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence ;", "the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence . ”", "Section CARDINAL of LAW which has the title “ protection against divulging a person ’s identity in special cases ” ( “ FAC in besonderen NORP ” ) , reads as follows :", "“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who", "NORP has been the victim of an offence punishable by the courts , or", "NORP is suspected of having committed , or has been convicted of , a punishable offence ,", "and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’s position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . The award of damages shall not exceed QUANTITY ; additionally , section CARDINAL ) , second sentence , shall apply .", "( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication", "NORP in the case of subsection ( CARDINAL)CARDINAL , is such as to give rise to an interference with the victim ’s strictly private life or to his or her exposure ,", "NORP in the case of subsection ( CARDINAL , relates to a juvenile or merely to a lesser indictable offence ( PERSON ) or may disproportionately prejudice the advancement of the person concerned .", "( CARDINAL ) No compensation claim under paragraph CARDINAL exists if", "NORP the publication at issue is based on a truthful report on a public session of ORG or ORG , ORG , a regional diet or a committee of CARDINAL of these general representative bodies ;", "NORP the publication of the information on the person has been decided officially , in particular for the purposes of criminal justice or public security ;", "NORP the person concerned has agreed to the publication or if the publication is based on information given by that person to the media ;", "it is a direct broadcast on radio or television ( live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence ;", "the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence . ”", "Section CARDINAL(CARDINAL ) second sentence of LAW , to which reference has been made above , reads as follows :", "“ The amount of compensation shall be fixed according to the extent of the publication , its impact and , in particular , the type of media and how broadly it is disseminated ; the compensation must not endanger the economic existence of the media owner . ”", "DATE of ORG on ORG of DATE , PERSON No . CARDINAL , in so far as relevant reads as follows :", "“ DATE General measures of protection", "( CARDINAL ) Each party shall take the necessary legislative or other measures to protect the rights and interests of victims , including their special needs as witnesses , at all stages of investigations and criminal proceedings , in particular by :", "...", "( e ) protecting their privacy , their identity and their image and by taking measures in accordance with international law to prevent the public dissemination of any information that could lead to their identification ; ”", "In the Explanatory Report to ORG , paragraph CARDINAL gives the following comment on LAW :", "“ The article goes on to list a number of procedural rules designed to implement the general principles set out in LAW the possibility for victims of being heard , of supplying evidence , of having their privacy , particularly their identity and image protected , and of being protected against any risk of retaliation and repeat victimisation . The negotiators wished to stress that the protection of the victim ’s identity , image and privacy extends to the risk of “ public ” disclosure , and that these requirements should not prevent this information being revealed in the context of the actual proceedings , in order to respect the principles that both parties must be heard and the inherent rights of the defence during a criminal prosecution . ”", "On DATE ORG adopted Recommendation Rec(CARDINAL)CARDINAL on the position of the victim in the framework of criminal law and procedure . In section F ( Protection of privacy ) point CARDINAL reads as follows :", "“ Information and public relations policy in connection with the investigation and trial of offences should give due consideration to the need to protect the victim from any publicity which will unduly affect his private life and dignity . If the type of offence or the particular status or personal situation and safety of the victim make such a special protection necessary , either the trial before the judgment should be held in camera or disclosure or publication of personal information should be restricted to whatever extent is appropriate ; ”", "On DATE ORG LAW on the protection of children against sexual exploitation . In LAW law , procedure and coercive measures in general ) point CARDINAL reads as follows :", "“ Ensure throughout judicial , mediation or administrative proceedings the confidentiality of records and respect for the privacy of children who have been victims of sexual exploitation . ”", "On DATE ORG Recommendation Rec(CARDINAL)CARDINAL on the provision of information through the media in relation to criminal proceedings . The Appendix to that Recommendation contains the following principles :", "“ Principle CARDINAL - Information of the public via the media", "The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal justice system , subject only to the limitations provided for under the following principles .", "...", "Principle CARDINAL - Protection of privacy in the context of ongoing criminal proceedings", "The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW .", "An even stronger protection is recommended to parties who are minors , to victims of criminal offences , to witnesses and to the families of suspects , the accused and convicted persons . ... ”" ]

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[ "10" ]

[ "10-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant inherited a house in LOC from Ms B.M. in her will . On an unspecified date he moved into it .", "NORP In DATE GPE , the stepson of PERSON , brought an action against the applicant for recovery of the property in issue , claiming that his inheritance rights had been breached and that the will was illegal .", "NORP The matter was considered repeatedly by the courts and on CARDINAL DATE ORG ( “ the ORG ” ) granted ORG claims . The applicant lodged a supervisory - review complaint .", "On DATE the ORG of ORG quashed the judgment of DATE for breach of procedural law and remitted the matter for fresh consideration . It appears the property was subject to an interim injunction which was still maintained by the court .", "Three hearings fixed for DATE and DATE , were adjourned owing to both the applicant ’s and plaintiff ’s failure to appear .", "Hearings scheduled for DATE and DATE were postponed owing to the applicant ’s failure to appear .", "Seven hearings fixed for DATE and DATE were adjourned owing to the third parties’ and the plaintiff ’s failure to appear , and the need to collect additional evidence .", "On DATE ORG dismissed the applicant ’s applications for the civil proceedings to be discontinued and the interim injunction lifted . The applicant lodged an appeal against that decision which was upheld on DATE .", "On DATE ORG dismissed ORG claims .", "On DATE ORG ( “ the ORG ” ) quashed the judgment of CARDINAL DATE on appeal and remitted the matter for fresh consideration .", "Three hearings fixed for DATE did not take place owing to the applicant ’s failure to appear , and one was held as planned .", "A hearing scheduled for DATE was adjourned until DATE owing to the applicant ’s failure to appear .", "A hearing scheduled for DATE was postponed until DATE owing to the judge ’s involvement in other proceedings .", "A hearing was held as planned on DATE . The court rejected the applicant ’s application for the discontinuation of the proceedings .", "Of QUANTITY hearings fixed for DATE and DATE , CARDINAL were adjourned owing to the applicant ’s failure to appear .", "On DATE the trial court held a hearing in the applicant ’s absence and granted ORG ’s claims . According to the applicant , he had not been duly summoned to that hearing .", "On DATE ORG upheld the judgment of DATE on appeal . The applicant brought a supervisoryreview complaint .", "On DATE the ORG of ORG quashed the judgments of DATE and DATE by way of supervisory review for breach of material and procedural law , and remitted the matter for fresh consideration . The hearing was listed for DATE .", "The hearing of CARDINAL DATE was adjourned owing to the third parties’ failure to appear .", "A hearing scheduled for DATE was postponed until DATE as the plaintiff was ill .", "On DATE ORG held a hearing and left ORG ’s action without examination owing to his failure to appear without valid reasons .", "On DATE the applicant requested the trial court to lift the injunction . On DATE his request was granted .", "On DATE B.S. informed ORG that he had failed to attend the hearing because of illness and asked it to quash the decision of DATE .", "Of CARDINAL hearings fixed for DATE , CARDINAL were postponed owing to the applicant ’s failure to appear and CARDINAL were held in his absence . According to the applicant , he was not duly summoned to those hearings .", "On DATE ORG quashed the decision of CARDINAL DATE .", "On DATE ORG decided to discontinue the civil proceedings . The court found that ORG had no legal standing under domestic law to challenge the legality of PERSON ’s will because his rights and interests had not been affected by the impugned will : he was not related by kinship to PERSON and was not listed in her will .", "On DATE ORG upheld that decision on appeal ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Regen .", "The applicant was the owner of several plots of land near ORG . ORG planned the construction of DATE houses , sport and play grounds and a restaurant on this site which was composed of marshes and wetland . On DATE ORG decided that the intended development did not comply with the objectives of spatial planning . CARDINAL of the main grounds for that refusal was that the site was located in a nature preserve . There was also the danger of dissection of landscape by secondary residences and of an undesirable effect on the promotion of tourism .", "On DATE and DATE , when purchasing further plots of land ( parcels nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) located in this area , the applicant was informed by ORG ( PERSON ) that the land in question was part of a natural habitat intended to be designated as a nature conservation area .", "On DATE the Regen Municipality published a development plan despite the objections of ORG .", "By decisions of DATE , DATE and CARDINAL DATE ORG prohibited the applicant from altering the natural condition of the land ( parcels nos . CARDINAL , CARDINAL and CARDINAL ) , ordered him to refill the drainage ditches and informed him that the decisions would be implemented by the administrative authority at his own expense if he failed to carry out the expected activity within the time - limits fixed at DATE and DATE respectively . On CARDINAL and CARDINAL DATE ORG proceeded to refill the ditches on CARDINAL of the land parcels concerned ( no . CARDINAL ) .", "After a suspension for DATE of appeal proceedings brought by the applicant , ORG ( Bayerisches Verwaltungsgericht ) , by a judgment of DATE , found that the limitation periods were too short and that the implementation of the decisions was unlawful .", "On DATE ORG refused to grant the applicant a planning permission for the development of the land . This decision became final .", "By a decree of DATE the Government of ORG designated the area , including in part the applicant ’s land ( parcels nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) , as a nature conservation area .", "On DATE ORG transferred , as requested by the applicant , his real property situated in this area to the ORG of GPE fixing the compensation to be awarded to him at MONEY ( ORG ) . It refused to purchase parcel number CARDINAL on the ground that the use for agriculture on this respective plot of land remained unaffected by LAW of DATE . It also refused to purchase the other remaining plots of the applicant ’s land .", "By a judgment of DATE ORG dismissed the appeals lodged by the applicant and the State of GPE against this decision . The judgment became final , the parties having withdrawn their respective appeals .", "In DATE the applicant sold the land not included in the area covered by the nature conservation decree ( parcels nos . CARDINAL , CARDINAL and CARDINAL ) as pasture respectively forest land .", "On DATE ORG supplemented its decision of DATE , taking into account changes brought about in respect of the applicant ’s land , such as the construction of a new road . No appeal was filed against this decision by the applicant . It accordingly became final .", "By a judgment of CARDINAL DATE ORG ( ORG ) quashed a judgment of ORG ( Landgericht ) of CARDINAL DATE and increased the amount of compensation initially awarded to the applicant from DEM CARDINAL,CARDINAL to DEM CARDINAL,CARDINAL . It refused to grant compensation in respect of parcel number CARDINAL , having regard to the binding effect of the judgment of ORG of DATE . On DATE the ORG ( ORG ) dismissed the applicant ’s appeal on points of law . In DATE ORG ( Bundesverfassungsgericht ) , sitting as a bench of CARDINAL judges , refused to admit the applicant ’s constitutional complaint lodged against these decisions for adjudication .", "On DATE the applicant requested that the proceedings be re - opened and he be awarded compensation .", "By a judgment of DATE ORG dismissed the applicant ’s application for the re - opening of the proceedings . It ordered , however , the administrative authorities to decide on the applicant ’s compensation claim in respect of the remaining plots of land ( parcels nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL and CARDINAL ) .", "On DATE ORG dismissed the applicant ’s compensation claim . It found that the land was situated outside the nature conservation area and was thus not affected by restrictions of the land use . The development plan for the DATE residences had never been validated , nor had the applicant ever been the owner of building land . Furthermore , with the exception of parcel number CARDINAL he had sold the plots of land ( parcels nos . CARDINAL , CARDINAL and CARDINAL ) in DATE . At the time of filing the compensation claim with ORG in DATE he did not own the land any longer . In any event , his compensation claim had not been filed within DATE after the date on which the nature protection decree had been issued .", "The applicant appealed against this decision claiming to be entitled to be awarded by ORG Bavaria an adequate compensation for all the parcels of his land .", "By a judgment of DATE ORG dismissed the applicant ’s claim .", "The applicant appealed against this judgment .", "By a judgment of DATE ORG dismissed the appeal . It found that ORG , by a final judgment of DATE , had confirmed the decision of ORG of DATE concerning the question of the transfer of the applicant ’s land . The question of compensation in respect of that land had been definitively settled by the judgment of ORG of DATE following the dismissal of the applicant ’s appeal on points of law by ORG on DATE .", "According to ORG , the same reasoning applied to the applicant ’s request to re - open the proceedings with a view to being granted a higher compensation under the compensation provisions of LAW ( Bundesbaugesetz ) . By a final judgment of DATE the applicant ’s appeal on points of law had been dismissed by ORG ( ORG ) on DATE – ORG had refused to re - open the proceedings with a view to reassessing the amount of compensation in respect of the land whose property had been transferred to ORG .", "The remaining plots of land ( parcels nos . CARDINAL/CARDINAL , CARDINAL and CARDINAL ) were situated outside the area originally zoned for development and were thus neither adversely affected by the nature conservation decree nor by the decisions of ORG of DATE and DATE and DATE DATE prohibiting the applicant from altering the natural conditions of this land ( parcels nos . CARDINAL , CARDINAL and CARDINAL ) .", "According to ORG , important considerations of nature conservation made the proposed development incompatible with the preservation of the valuable wetland in the area concerned . The applicant had never enjoyed a right to develop the land in question nor had he ever had a legitimate expectation of carrying out the proposed development since the development plan had been invalid from the beginning . Furthermore the applicant was not entitled to compensation because agricultural use of the land was not prohibited . ORG advised the applicant to accept the numerous court decisions given in his case which confirmed that the development plan had no legally binding effect and that the land in question was never designated for construction purposes .", "On DATE ORG ( ORG ) dismissed the applicant ’s appeal against the decision refusing him leave to appeal on the ground that the case raised no issue of principle .", "On DATE ORG , sitting as a bench of CARDINAL judges , refused to admit the applicant ’s constitutional complaint for adjudication .", "In the meantime , by notices of DATE and DATE , ORG ( PERSON ) had assessed the applicant ’s income tax taking into account the compensation paid to him by ORG . The applicant ’s appeals lodged against these decisions were dismissed by ORG on DATE , ORG ( ORG ) on DATE and ORG ( GPE ) on DATE . On DATE ORG , sitting as a bench of CARDINAL judges , refused to admit the applicant ’s constitutional complaint for adjudication .", "On DATE ORG issued a new revised tax assessment claiming payment of income tax for DATE . The appeals lodged by the applicant were dismissed by ORG on DATE and ORG on DATE . On DATE ORG rejected the applicant ’s appeal against the decision refusing him leave to appeal on points of law . It found that the applicant ’s grounds of appeal did not satisfy the procedural requirements of the relevant provisions of LAW ( GPE ) . It noted in particular that the complaints concerning the fairness of the proceedings and the interpretation of the facts allegedly in contrast to the clear contents of the files had not been submitted within the statutory time - limit .", "On DATE ORG notified the applicant an enforcement decision of DATE in respect of his tax liability relating to the period from DATE to DATE in an amount of ORG CARDINAL,CARDINAL.CARDINAL , including interests , penalties for late payment and costs of the proceedings .", "On DATE ORG , sitting as a bench of CARDINAL judges , refused to admit the applicant ’s constitutional complaint for adjudication .", "Simultaneously the ORG claimed from the applicant the payment of court costs . On DATE ORG ( ORG ) issued a warrant of arrest against the applicant because he did not make an affidavit ( eidesstattliche ORG ) as to his assets .", "On DATE the ORG assessed the value of the applicant ’s real estate at ORG and fixed the date for its compulsory sale at DATE ." ]

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[ "The applicant was born in DATE and lives in GPE . He was the director of a diamond manufacturing and export company ( “ the company ” ) .", "On DATE a criminal case ( no . DATE ) was opened against the applicant . He was suspected of having smuggled diamonds by using forged export contracts , an offence under LAW .", "On DATE the applicant was arrested . On DATE a prosecutor remanded him in custody .", "On DATE the Preobrazhenskiy District Court of GPE dismissed the applicant ’s request for release on bail . On DATE ORG upheld the refusal on appeal .", "On DATE a deputy Prosecutor General extended the applicant ’s detention until DATE . On DATE ORG dismissed the applicant ’s challenge to the extension order because , in the court ’s view , the applicant ’s “ character ” justified the detention . On DATE ORG upheld that decision on appeal .", "On DATE a deputy Prosecutor General extended the applicant ’s detention until DATE . On DATE ORG dismissed the applicant ’s appeal against the extension order , finding that the order had been “ lawful and justified ” , but without giving further grounds in support of this finding .", "On DATE a deputy Prosecutor General extended the applicant ’s detention until DATE . On DATE ORG dismissed the applicant ’s challenge to the extension order , finding that it had been lawful and justified . On DATE ORG upheld that decision on appeal .", "On DATE and DATE the acting Deputy Prosecutor General extended the applicant ’s detention until DATE and DATE respectively . On DATE the ORG of GPE dismissed the applicant ’s challenge to the extension orders , finding that they had been justified on account of the applicant ’s “ character ” and the absence of “ gross violations ” of the criminal - procedure laws . On DATE ORG upheld that decision on appeal , referring to the applicant ’s “ character ” and the gravity of the charges against him .", "On DATE the Prosecutor General extended the applicant ’s detention until DATE . On DATE the ORG of GPE dismissed the applicant ’s challenge to the extension order , finding that the applicant ’s “ character ” and the gravity of the charge rendered his detention lawful and justified . On DATE ORG upheld that decision on appeal .", "On DATE the applicant was additionally charged with offences under ORG CARDINAL § CARDINAL ( smuggling ) , CARDINAL § CARDINAL ( unlawful trade in precious stones ) , and CARDINAL ( forgery of official documents ) of LAW .", "On DATE counts of smuggling , unlawful export of precious stones and forgery of documents were severed into a new criminal case , which was given the number DATE .", "On DATE the investigation into the remaining charges in the framework of case no . DATE was stayed . On DATE the investigation resumed and has since been pending .", "On DATE the applicant was given access to the case file . Further to the prosecution ’s requests , on DATE and DATE ORG extended the applicant ’s detention until DATE and DATE respectively . On each occasion the court noted that there were no grounds to vary the preventive measure imposed on the applicant , in spite of the arguments advanced by the defence and the personal sureties offered on the applicant ’s behalf by a Member of ORG and a member of ORG . It also referred to the gravity of the charges and to the applicant ’s “ character ” . On DATE and DATE ORG upheld ORG decisions on appeal , finding that there were “ no sufficient grounds to vary the preventive measure ” .", "According to the Government , the applicant ’s counsel , PERSON and PERSON , were deliberately dilatory in dealing with the case - file materials . On DATE the investigator asked the president of the GPE bar to ensure counsel ’s regular attendance . On DATE and DATE the investigator ’s superior repeated that request . The Government produced CARDINAL reports of CARDINAL , DATE and DATE . In these reports investigation officers described private conversations with the applicant ’s representatives , who allegedly stated that they would procrastinate until the maximum period of the applicant ’s detention had expired .", "On DATE case no . DATE was submitted for trial before ORG of GPE .", "On DATE ORG remitted the case for further investigation . On DATE that decision was set aside by ORG , and the trial resumed .", "On DATE ORG fixed a hearing for DATE but then adjourned it to DATE because the applicant ’s counsel had gone on holiday .", "On DATE ORG refused the applicant ’s petition for release . On DATE ORG upheld that decision on appeal .", "On DATE ORG extended the applicant ’s detention until DATE , finding that his release would hinder “ a thorough , comprehensive , and objective examination of the case ” .", "On DATE ORG remitted case no . DATE for further investigation . It found that the charges were formulated vaguely , that the applicant had not been questioned as a suspect , that his access to the file had been unlawfully restricted , and that the severing of certain charges had not been justified . These defects were to be remedied by the investigation . The court authorised the applicant ’s further detention .", "On DATE the ORG released the applicant on bail .", "The hearing fixed for DATE had to be adjourned until DATE because CARDINAL lawyer was involved in concurrent proceedings and the other was on leave .", "On DATE the hearing was adjourned on account of the prosecutor ’s illness . On DATE and CARDINAL DATE the hearings were postponed at the applicant ’s request .", "On DATE the ORG found the applicant guilty of smuggling and unlawfully trading in diamonds . The applicant was sentenced to DATE and CARDINAL months’ imprisonment , suspended for DATE . On DATE ORG upheld that judgment on appeal .", "On DATE the investigator refused leave for a visit by the applicant ’s mother and his wife . She stated that the investigator had discretion to authorise visits , but was not obliged to do so .", "According to the Government , on unspecified dates in DATE the applicant was allowed to see his wife on “ humanitarian grounds ” .", "On DATE the investigator refused counsel ’s request of CARDINAL DATE to allow the applicant to see his wife . The investigator indicated that the applicant ’s wife was aware “ of certain circumstances that [ were ] relevant to the matters under investigation ” and also had “ an interest in the outcome [ of the case ] ” . As “ family visits [ could ] be used to establish contact with other members of the organised criminal group or obstruct the establishment of the truth ” , the wife ’s visit would be “ inopportune ” .", "On DATE the investigator refused a visit by the applicant ’s DATE daughter , stating that the applicant could use the visit to obstruct the investigation .", "On DATE , DATE , DATE , DATE , DATE , DATE and DATE the investigator allowed the applicant to see his mother and/or daughter . According to the ORG , in DATE and DATE the applicant was granted CARDINAL family visits .", "On DATE the applicant sent a complaint about the refusal to allow family visits and interference with his correspondence to ORG of GPE . On DATE the head of the correspondence department of the remand centre refused to post the complaint , citing the following reasons :", "“ The court will not accept the complaint for examination in its present form . I also consider it necessary to explain that , under LAW :", "( a ) the investigator may approve CARDINAL visits per month but by law he is not obliged to do so ( section CARDINAL § CARDINAL ) ;", "( b ) pursuant to section CARDINAL § CARDINAL , all correspondence is subject to censorship , including by the investigator who is in charge of the criminal case .", "The complaint has no prospects of success ( жалоба бесперспективна ) . ”", "On DATE the applicant complained to ORG and ORG that his complaint had not been posted . On DATE the applicant ’s complaint to ORG was returned to him . No reply from ORG was received .", "On DATE the investigator refused to post the applicant ’s letters to his wife and mother . She returned them to the director of the remand centre with the following note :", "“ I am returning you the letters by PERSON , the defendant in criminal case no . DATE , addressed to PERSON and dated DATE , DATE and DATE , and to PERSON , of DATE and DATE .", "On the basis of section CARDINAL LAW of LAW these letters may not be sent to the addressees . ”", "The applicant submitted to the ORG copies of handwritten letters to his mother , dated CARDINAL , DATE and DATE .", "On DATE the applicant issued forms of authority to his counsel , Mr GPE and ORG . By a letter of DATE , the first deputy director of ORG of ORG returned the forms to the director of the remand centre , advising him as follows :", "“ I would ask you to explain to Mr PERSON , the defendant in criminal case no . DATE , that , pursuant to section CARDINAL of LAW and paragraph CARDINAL of ORG ( approved by order no . CARDINAL of DATE ) , detainees may enter into civil transactions on the basis of a form of authority certified by the head of the remand centre .", "Since the forms of authority issued by PERSON to Mr GPE and ORG list actions which , under the civil legislation currently in force , are not civil transactions , there are no grounds for forwarding these forms to Mr GPE . ”", "On DATE the applicant ’s counsel submitted to the investigator a series of documents concerning the customs proceedings to which the applicant ’s company was a party . On DATE the investigator refused to transmit these to the applicant and appended them to the case - file , indicating that the applicant would be able to read them only after the investigation had been completed .", "According to the Government , in DATE the applicant sent no letters to his relatives . His letters to public authorities were not subject to censorship and were posted without delay . Incoming letters were handed over to him on DATE of receipt .", "On DATE counsel for the applicant asked for permission to pass to his client ( i ) a copy of a complaint to ORG , and ( ii ) a book “ International instruments on human rights ” . The director of the remand centre made a handwritten note on the petition : “ I agree to accept a copy of the complaint ” .", "On DATE and CARDINAL DATE the applicant complained to ORG of GPE about the interception of the authority forms and commercial documents . By decisions of DATE and DATE , ORG disallowed the applicant ’s complaints , finding that the law did not provide for judicial review of the investigator ’s decisions concerning restrictions on family visits , correspondence or exchange of documents . On DATE the ORG confirmed on appeal that the applicant ’s complaints were not amenable to judicial review .", "On DATE and CARDINAL September CARDINAL the applicant complained to ORG of GPE about the restrictions on family visits and correspondence imposed by the investigator . On DATE ORG , by a non - procedural communication , informed him that these complaints could not be examined by a court .", "The applicant complained to ORG that he had not been able to obtain judicial review of restrictions on family visits , correspondence and exchange of documents .", "By a decision of DATE ( no . CARDINAL ) , ORG confirmed its constant case - law to the effect that all decisions by an investigator or prosecutor which affected an interested party ’s constitutional rights and were not related to the merits of the criminal charge were amenable to judicial review ( see paragraph CARDINAL below ) . It emphasised that this approach was fully applicable to the investigator ’s decision concerning restrictions on family visits , correspondence or exchange of documents . ORG held that the judicial decisions refusing examination of the applicant ’s complaints were to be reviewed in accordance with the established procedure .", "On DATE the Presnenskiy District Court of GPE re - examined many of the complaints lodged by the applicant in course of the criminal proceedings in DATE and DATE , including those concerning restrictions on correspondence , exchange of documents and family visits . ORG dismissed those complaints for the following reasons .", "ORG found that the refusal to transmit customs documents from the lawyer to the applicant had been justified because the former had indicated that the documents were related to the criminal case . On that basis the documents had been included in the case file as evidence , in accordance with LAW . The applicant had been advised that he would be able to study the documents in question when examining the case file following completion of the preliminary investigation .", "With regard to the refusal to pass the power of attorney of DATE , ORG held that ORG ( those issued both by ORG and by ORG ) prohibited detainees from authorising their representatives to carry out any actions other than civil transactions . As the scope of the applicant ’s power of attorney had not been confined to civil transactions , the refusal had been lawful . ORG did not refer to a specific provision of ORG .", "As to the restrictions on family visits , ORG referred to the relevant provisions of LAW and LAW . It noted that the decision on whether or not to allow a family visit was to be taken by the investigator in the light of the The decisions made by the investigator in the applicant ’s case had subsequently been reviewed and approved by ORG and by ORG . Accordingly , ORG concluded that the decisions had been lawful and justified .", "Finally , ORG found that CARDINAL of the applicant ’s letters to his relatives had been intercepted by the investigator because they either contained information on the criminal case , revealing secret information from the preliminary investigation , or expressed contempt for the law - enforcement authorities , which might foster a negative attitude among his relatives towards the law - enforcement bodies and thus obstruct the establishment of the truth in the criminal case . ORG held that the interception of those letters had been compatible with the domestic law and with international treaties , including LAW .", "On DATE ORG endorsed , in a summary fashion , the findings of ORG .", "From DATE until his release on DATE the applicant was held in special - purpose remand centre no . IZ-CARDINAL/CARDINAL ( formerly no . IZ-CARDINAL/CARDINAL , commonly known as “ PERSON ” ) .", "The applicant was held in CARDINAL different cells that measured either QUANTITY . m and had CARDINAL sleeping places , or QUANTITY . m and contained QUANTITY . The design capacity of the cells was not exceeded .", "The window frames were bricked in with semi - transparent glass cubes . In addition , there was a layer of thick bars with so - called “ eyelashes ” , that is , slanted plates , QUANTITY apart , welded to a metal screen . This construction gave no access to natural air or light . The Government submitted that the “ eyelashes ” had been removed on DATE . The applicant indicated that DATE private fans had been prohibited in the cells , but that ventilation was on during DATE .", "The lavatory pan was placed in the corner of the cell . The Government produced a photo of the pan showing that it was separated from the living area by an QUANTITY tiled brick partition and shower curtains above it . The applicant responded that the partition and curtains had apparently been a recent development ; during the period of his detention there had been no tiles and the hanging of curtains of any kind had been prohibited . Furthermore , until DATE the walls had been covered with so - called shuba , a sort of abrasive concrete lining , designed to prevent detainees from leaning on the walls or writing on them .", "Open - air exercise was permitted for TIME a day and a shower could be taken for TIME once a week .", "The cells were constantly lit with fluorescent lighting . The applicant claimed that insufficient lighting had impaired his eyesight , which had fallen by CARDINAL dioptres . On DATE he asked to see an ophthalmologist and repeated his request CARDINAL times DATE and DATE . The ORG explained that no consultation had been arranged because the medical unit of the remand centre had no resident ophthalmologist and because the applicant had often been absent for court hearings . The applicant responded that the hearings had not started until DATE , that is , DATE after he had asked for consultation .", "Finally , the applicant submitted that he had been the only non - smoker in his cells and had suffered from passive smoking . The Government indicated that the separation of non - smokers from smokers had been materially impossible .", "NORP In support of his submissions the applicant produced affidavits by his former cellmates , PERSON , PERSON . and PERSON .", "The applicant was transported from the remand centre to the courthouse and back CARDINAL times . Transport was arranged by officers of ORG of ORG ( конвойный полк ORG г. GPE ) .", "NORP The prison vans ( Gaz-CARDINAL and Gaz-CARDINAL ) in which the applicant was transported had a passenger cabin which was QUANTITY long , QUANTITY wide , and QUANTITY high . The cabin was divided into CARDINAL multi - occupancy cubicles , designed for CARDINAL inmates each , and CARDINAL single - occupancy cubicle . The cubicles were equipped with benches . On DATE , in response to the applicant ’s complaints , the officer - in - command of ORG ordered that he be transported in a separate van . The applicant specified that a separate van had been made available to him CARDINAL times .", "The Government submitted that the prison - van heaters and interior lights had been powered by the van engine . The vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow . The Government asserted that the applicant had received breakfast and dinner at the remand prison and that he had been allowed to bring his own food to court . It follows from the certificate issued by the head of remand centre no . IZ-CARDINAL/CARDINAL that dry rations had been given to detainees from DATE onwards .", "In their post - admissibility submissions the Government enclosed CARDINAL reports prepared by the officer - in - command of ORG on DATE and DATE . According to these reports , the design capacity of prison vans had never been exceeded in DATE and the travel time from remand centre no . CARDINAL to ORG had been in the range of TIME , depending on traffic .", "The applicant denied that the van had been heated or sufficiently ventilated . He indicated that the travel time between the remand centre and the court had been excessively long , and sometimes as long as TIME . During the entire journey he had been kept in the locked van without food or drink or access to a toilet .", "The applicant produced a detailed table which listed the time he had spent before departure in the “ waiting cubicle ” at the remand centre , the time on the way to the courthouse and the time on the way back . The table covered the period from DATE to CARDINAL DATE , in which he had been transported on DATE . Of those CARDINAL times , on CARDINAL occasions the aggregate travel time on DATE had ranged from TIME and on a further CARDINAL occasions it had been TIME , with a maximum of TIME on DATE . The table also indicated that on DATE the design capacity of the prison van had been exceeded by CARDINAL additional persons .", "DATE and DATE the applicant sent CARDINAL complaints about the “ torturous ” conditions of transport to many officials , including the director of the remand centre , ORG and the officer - in - command of ORG . According to the Government , the officer - in - command of ORG had acknowledged that there had been “ some irregularities ” in the transport of detainees and ordered that the applicant be transported by a separate van . A copy of that report was not made available to the ORG .", "DATE . LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) . At the material time , a decision ordering pre - trial detention could be taken by a prosecutor or a court ( Articles CARDINAL , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure , the “ CCrP ” ) .", "Before DATE , pre - trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment ( LAW CCrP ) . The amendments of DATE repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed .", "After his or her arrest the suspect was placed in custody “ pending investigation ” for an initial DATE period ( LAW of the ORG ) . Further extensions could be granted by prosecutors at ascending levels of jurisdiction .", "Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file , the file was submitted to a trial court . From that date a defendant ’s detention was “ before the court ” ( or “ pending trial ” ) . Until DATE LAW set no time - limit for detention “ pending trial ” . On DATE a new LAW was inserted , which established that the period of detention “ during trial ” could not normally exceed DATE from the date the court received the file .", "LAW ( Federal Law on ORG and Defendants , no . CARDINAL of DATE ) provides as follows :", "“ Suspects and defendants have the right :", "...", "( CARDINAL ) to meet with relatives and other persons listed in section CARDINAL ;", "( CARDINAL ) to keep documents and records relating to the criminal case or to exercise of their rights and lawful interests ...", "...", "( CARDINAL) to maintain correspondence and to use writing utensils ;", "...", "( CARDINAL ) to enter into civil transactions . ”", "“ Upon written consent of the official or authority in charge of the criminal case , a suspect or defendant may have up to CARDINAL meetings per month with relatives and other persons , each visit to last for TIME ... ”", "“ Suspects and defendants may correspond with relatives and other persons , without any limitation on the number of incoming and outgoing letters or telegrams ...", "Correspondence by suspects and defendants is to be carried out through the administration of the remand prison and is subject to censorship . Censorship is carried out by the administration of the remand prison and , if necessary , by the official or authority in charge of the criminal case .", "Letters that contain information which may obstruct the establishment of the truth in a criminal case or facilitate the commission of a crime , are drafted with use of cryptography or cipher , or contain ORG or other secrets protected by law , may not be sent to the addressee or returned to the suspect or defendant . Instead , they are remitted to the official or authority in charge of the criminal case ... ”", "The Internal Rules for Remand Centres of ORG ( order no . CARDINAL of DATE , in force until CARDINAL DATE ) provided as follows :", "“ CARDINAL.CARDINAL Suspects and defendants may send and receive any number of letters or telegrams .", "CARDINAL Letters and telegrams are sent and received through the administration of the remand centre . Correspondence by suspects and defendants is subject to censorship .", "CARDINAL Letters and telegrams addressed to victims or witnesses , as well as those containing any information whatsoever in respect of the criminal case [ in issue ] , insults , threats , calls to violence , commission of crimes or other offences , information on security measures in the remand centre , its employees , ways of transmission of prohibited items , and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities ... are not dispatched to the addressee ... and [ are ] handed over to the official or authority in charge of the criminal case .", "CARDINAL A suspect or defendant may draft a power of attorney authorising another person to carry out a civil transaction . The power of attorney must be drafted in an established form and certified by the head of the remand centre in accordance with LAW of LAW .", "The administration of the remand centre must supply a blank power of attorney to a suspect or defendant , at his or her request and at his or her own expense , and , if necessary , explain the procedure for filling it out . The power of attorney is passed or sent to the person whose is named therein , through the official or authority in charge of the criminal case .", "CARDINAL A suspect or defendant may be allowed a family visit on the basis of a written consent issued by the official or authority in charge of the criminal case . The consent is valid for CARDINAL visit only . ”", "The Internal Rules for Remand Centres of ORG ( order no . CARDINAL of CARDINAL DATE ) provided as follows :", "“ CARDINAL . Letters ... are received and dispatched through the administration of the remand centre . Correspondence of detainees is subject to censorship .", "Letters and telegrams addressed to suspects and defendants who are at large , victims , witnesses , as well as those containing any information whatsoever in respect of the criminal case [ in issue ] , insults , threats , calls to violence , commission of crimes or other offences , information on security measures in the remand centre , its employees , ways of transmission of prohibited items , and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities ... are not dispatched to the addressee ... and [ are ] handed over to the authority in charge of the criminal case .", "All correspondence by the detainees shall be recorded in a special register in which the dates of receipt and dispatch are noted ...", "NORP By consent of the official or authority who is in charge of the criminal case , a suspect or defendant may issue a power of attorney to his or her representative for conducting a civil transaction . The power of attorney must be certified by the head of the remand centre , in accordance with LAW of LAW . ”", "On DATE ORG issued Ruling no . DATE on the constitutional compatibility of those provisions of LAW which restricted the possibility of lodging appeals against an investigator ’s decisions to certain procedural actions . ORG considered that the constitutional right to judicial protection against actions or decisions impairing ORG rights and freedoms could not be restricted and that the interested party should therefore have the right to lodge a complaint with a court . It held that all decisions by the investigative authorities affecting constitutional rights and freedoms should be amenable to judicial review , provided that examination of their lawfulness and justification would not prejudge the merits of the criminal case ." ]

[ "13", "3", "5", "6", "8" ]

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

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[ "The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by PERSON PERSON , a lawyer practising in GPE .", "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant and his family lived in the GPE village of the LOC district attached to the NORP province .", "On DATE the applicant and his family left their village taking their belongings as a result of pressure from security forces and terrorist organisations . The applicant sold his animals at a very cheap price prior to their departure . He and his family settled in GPE .", "On DATE security forces carried out an operation in the region including the applicant ’s village . During the operation the security forces burned down the applicant ’s house and dairy farm .", "On DATE the applicant learned of the destruction of his property via a press conference held by ORG and ORG in GPE .", "On DATE the applicant filed petitions with the NORP Governor ’s office , the Prime Minister ’s office and the President of the GPE ’s office and on DATE with the ORG Minister ’s office . He complained to the authorities that he and his fellow villagers had been forced to leave their village as a result of pressure and that his house and dairy farm had been burned down by security forces .", "On DATE an investigation was carried out into the applicant ’s allegations on the orders of the NORP Governor . The investigation concluded that the applicant and his fellow villagers had left their village as a result of the pressure from ORG terrorists and that the houses in the village had been destroyed due to bad DATE conditions .", "On DATE and DATE the NORP Deputy Governor sent letters in reply to the applicant stating that his house and dairy farm had not been destroyed by the security forces but because of DATE conditions .", "In DATE the NORP Governor ’s office carried out another investigation in the applicant ’s village GPE . The authorities found that there was no trace of burning of the applicant ’s house and that the only damage seen on the house was a hole on the roof which have been caused as a result of the DATE conditions , namely heavy snow .", "According to the official records kept by the military authorities , State security forces did not carry out any operation around the applicant ’s village , GPE .", "B. Relevant domestic law and practice", "Administrative liability", "Article CARDINAL of LAW provides as follows :", "“ 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 section CARDINAL of Law no . CARDINAL of DATE on ORG , which provides :", "“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . ”", "Criminal responsibility", "LAW makes it a criminal offence :", "( a ) to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil 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 ( Articles CARDINAL and CARDINAL ) ,", "( e ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ,", "( f ) to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) , or", "( g ) to damage another ’s property intentionally ( Articles ORG ) .", "For all these offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , with the public prosecutor or the local administrative authorities . ORG 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 ORG 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 LAW . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected ORG 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 ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .", "Provisions on compensation", "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 ." ]

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[ "The applicants were born in DATE and DATE and are currently in custody in GPE . They are members of the PERSON ( “ NORP ” ) ORG of GPE ( PERSON ) , an opposition party in GPE .", "On DATE the applicant arrived in GPE from LOC ) , on a tourist visa . He was arrested by NORP police at FAC ( GPE ) under an international arrest warrant and taken into police custody on suspicion of homicide , causing injuries by the explosion of a bomb in GPE and an attempted terrorist attack on the President of GPE .", "GPE requested the applicant 's extradition under a bilateral treaty with GPE .", "On DATE ORG made an application to the investigating judge for the applicant to be remanded in custody . The applicant , who was assisted by his lawyer , was brought before the judge DATE and remanded in custody for DATE , in accordance with LAW , which was opened for signature on DATE .", "On DATE the first applicant was interviewed by the judge of ORG . In an order made on DATE under the expedited - applications procedure the judge referred to the charges against the first applicant and noted that the offences concerned were not political or military in nature but “ ordinary criminal ” offences . The judge also made an order remanding the first applicant in custody pending his extradition . The applicant , who was assisted by his lawyer and an interpreter , denied the charges and protested his innocence .", "In written pleadings that were lodged at a hearing on DATE , the first applicant 's representative argued that the applicant was working for the democratisation of his country and that political dissidents in GPE were arrested by the authorities and subjected to torture in prison . He added that the first applicant had been in GPE at the material time and had asked the NORP authorities for political asylum as his life was at risk . He argued that his client had been prosecuted for an offence of a political nature and , relying on LAW , asked ORG to refuse GPE request for extradition .", "On DATE the applicant appealed to ORG against the order made under the expedited - applications procedure on DATE . ORG examined the file that had been produced to it and dismissed the applicant 's appeal on DATE .", "The applicant entered GPE on DATE on a false passport . On DATE , acting on a request for his extradition by GPE , the NORP police arrested him and took him into police custody . He was suspected of homicide , causing injuries to others by the explosion of a bomb in GPE and an attempted terrorist attack on the President of GPE .", "On DATE ORG made an application to the investigating judge for the applicant to be remanded in custody . On DATE the applicant was brought before a judge , who remanded him in custody .", "NORP In a letter of CARDINAL DATE the Fatih Public Prosecutor applied to ORG for a determination of the applicant 's nationality and of the nature of the alleged offence .", "In a decision of DATE , after hearing the applicant , ORG determined his nationality and the nature of the offence pursuant to LAW . It held that the offences with which he had been charged were not political or military in nature but “ ordinary criminal ” offences . It also made an order remanding the applicant in custody pending his extradition .", "At a hearing on DATE the applicant 's representative submitted that the offence with which the applicant had been charged was political in nature and that political dissidents in GPE were arrested by the authorities and subjected to torture in prison . He added that the applicant had been in GPE at the material time on a false passport .", "On DATE the applicant appealed to ORG against the judgment of DATE . ORG examined the file that had been produced to it and dismissed the applicant 's appeal on DATE .", "On DATE the President of the ORG decided to “ indicate to the Government , pursuant to Rule CARDINAL of ORG , that it was desirable in the interest of the parties and the proper conduct of the proceedings before the ORG not to extradite the applicants to GPE until the ORG has had an opportunity to examine the application further at its forthcoming session on DATE ” .", "On DATE ORG issued a decree for the applicants ' extradition .", "On DATE the ORG decided to extend the interim measure indicated pursuant to Rule CARDINAL until further notice .", "On DATE the applicants were handed over to the NORP authorities .", "In a letter of DATE the Government informed the ORG that it had received the following assurances about the CARDINAL applicants from the NORP authorities :", "( i ) On DATE and DATE the Ambassador of GPE transmitted CARDINAL notes from ORG to which were appended CARDINAL letters from ORG , stating : “ The applicants ' property will not be liable to general confiscation , and the applicants will not be subjected to acts of torture or sentenced to capital punishment ” ;", "( ii ) NORP The NORP authorities added “ GPE is a party to ORG Convention against Torture and accepts and reaffirms its obligations to comply with the requirements of the provisions of that ORG both as regards GPE and the international community as a whole ” .", "On DATE the Government transmitted to the ORG a diplomatic note dated DATE from ORG of GPE setting out the following points :", "“ It appears from investigations conducted by the NORP judicial authorities that PERSON and PERSON have played an active role in planning and organising terrorist acts against the leaders of GPE and its people since DATE , as members of a criminal organisation led by GPE and GPE , who are notorious religious extremists .", "It appears from information obtained through cooperation with the intelligence services of foreign countries that PERSON and PERSON have committed offences in GPE and GPE .", "Their indictment , which was drawn up on the basis of previously obtained evidence , contains a number of counts : setting up a criminal organisation , terrorism , a terrorist attack on the President , seizing power by the use of force or by the overthrow of the constitutional order , arson , uttering forged documents and voluntary homicide .", "All the investigations have been conducted with the participation of their lawyers . The defendants have made statements of their own free will on the activities of the criminal organisation and their role within it . That information has been corroborated by the other evidence that has been obtained .", "The assurances given by ORG concerning PERSON and PERSON comply with GPE 's obligations under ORG Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment of DATE .", "The defendants and their lawyers have examined the prosecution evidence relating to the investigation and the proceedings and a copy of the indictment transmitted to ORG has been served on them .", "Arrangements for the accused 's security during the investigation and trial have been made through the use of secure LOC ( with cells specially equipped for that purpose ) and appropriate measures have been taken to prevent them being attacked .", "The defendant 's trial in ORG has recently begun with hearings in public . The hearings are attended by members of the local and foreign press . Members of diplomatic missions and representative of human - rights organisations also attend the hearings .", "Officials from ORG may also attend . ”", "In a letter of DATE , the Government informed the ORG that by a judgment of CARDINAL DATE ORG had found the applicants guilty of the offences charged and had sentenced them to terms of imprisonment .", "In a letter of DATE , the applicants ' representatives said that they were unable to contact the applicants . They said that conditions in NORP prisons were bad and that prisoners were subjected to torture . They noted , inter alia :", "“ ...", "The applicants did not have a fair trial in GPE . The rule requiring trials to be held in public was not complied with . Our only information about the applicants ' trial comes from the NORP authorities .", "We wrote to ORG in GPE on DATE requesting permission to attend the trial as observers in our capacity as lawyers , but have received no reply .", "As to the allegation that the applicants ' trial was followed by ' national and international journalists and representatives from human - rights organisations ' , the only non - governmental organisation present in GPE that was able to follow the trial was ORG . Although we have made express requests to that organisation , we have not been able to obtain any detailed information about the hearings and events at the trial .", "Since the applicants ' extradition , we have been unable to contact them either by letter or by telephone . We still have no means of contacting them . This state of affairs serves to reinforce our suspicions that the applicants are not being held in proper prison conditions .", "According to the letter sent by ORG [ ORG ] on DATE and information published in the press , the applicant PERSON has been sentenced to DATE imprisonment . That is the heaviest sentence that can be handed down under LAW . Furthermore , if account is taken of the conditions of detention in NORP prisons , and in particular of the use of torture , it is very difficult for prisoners to serve their sentences in the prisons in proper conditions . Moreover , it is generally believed that certain prisoners , in particular those convicted for offences pertaining to freedom of expression , are given additional sentences . ”", "On DATE ORG for GPE forwarded the following information to ORG :", "“ On DATE ORG found PERSON and PERSON guilty of the charges listed below and sentenced them to DATE and DATE imprisonment respectively :", "PERSON", "( a ) DATE imprisonment pursuant to LAW and CARDINAL of LAW ( homicide with aggravating circumstances , namely :", "( i ) murder of CARDINAL or more people ,", "( ii ) NORP murder of a person on official duty or of a close relative of such a person ,", "( iii ) use of means endangering the lives of others ,", "( iv ) use of cruel means ,", "( v ) offence committed in the defendant 's own interests ,", "( vi ) offence committed on the basis of religious beliefs ,", "( vii ) offence committed with the aim of concealing another offence or of facilitating its commission ,", "( viii ) offence committed by a group of people or a criminal organisation in the interests of that organisation ,", "( ix ) repeat offence ) ;", "( b ) DATE imprisonment pursuant to LAW ( a ) and ( b ) of LAW ( terrorist offence ) ;", "( c ) DATE imprisonment pursuant to LAW ( incitement to hatred and hostility giving rise to discrimination on grounds of race and religion ) ;", "( d ) DATE imprisonment pursuant to LAW ( attempted terrorist attack on the President of GPE ) ;", "( e ) DATE imprisonment pursuant to LAW ( attempt to undermine the constitutional regime of GPE , conspiracy to take power or overthrow the constitutional regime of GPE ) ;", "( f ) DATE imprisonment pursuant to LAW ( attempt to destroy property or to damage peoples ' health , massacres committed with the intention of harming the activities of ORG bodies and undermining social , political and economic stability ) ;", "( g ) DATE imprisonment pursuant to LAW ( a ) and ( b ) of LAW ( fraud , obtaining the property of others by fraud or deception , by or in the interests of a group of individuals ) ;", "( h ) DATE imprisonment pursuant to LAW ( b ) ( entering or leaving NORP territory illegally and with premeditation ) ;", "( i ) DATE community service pursuant to LAW ( manufacture , use and sale of false documents : seal , stamp , headed notepaper ) ;", "( j ) DATE imprisonment pursuant to LAW forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang ) .", "Is sentenced to DATE imprisonment pursuant to LAW ( aggregation of sentences for several offences ) to be served in ' strict - regime ' penal institutions .", "PERSON is currently serving his sentence in FAC , which is under the authority of ORG GPE PERSON . He is in good health and is entitled to receive visits from close relatives . He did not receive an amnesty under the ' Amnesty Decree ' of DATE .", "PERSON", "( a ) DATE imprisonment pursuant to LAW ( aggravated with aggravating circumstances , namely :", "( i ) murder of CARDINAL or more people ,", "( ii ) NORP murder of a person on official duty or of a close relative of such a person ,", "( iii ) use of means endangering the lives of others ,", "( iv ) use of cruel means ,", "( v ) offence committed in the defendant 's own interests ,", "( vi ) offence committed on the basis of religious beliefs ,", "( vii ) offence committed with the aim of concealing another offence or of facilitating its commission ,", "( viii ) offence committed by a group of people or a criminal organisation in the interests of that organisation ,", "( ix ) repeat offence ) ;", "( b ) DATE imprisonment pursuant to LAW ( a ) and ( b ) of LAW ( terrorist offence , causing another 's death ) ;", "( c ) DATE imprisonment pursuant to LAW ( incitement to hatred and hostility giving rise to discrimination on grounds of race and religion ) ;", "( d ) DATE imprisonment pursuant to LAW ( attempted terrorist attack on the President of GPE ) ;", "( e ) DATE imprisonment pursuant to LAW ( attempt to undermine the constitutional regime of GPE , conspiracy to take power or overthrow the constitutional regime of GPE ) ;", "( f ) DATE imprisonment pursuant to LAW ( attempt to destroy property or to damage peoples ' health , massacres committed with the intention of harming the activities of ORG bodies and undermining social , political and economic stability ) ;", "( g ) DATE imprisonment pursuant to LAW ( b ) ( destruction of or intentional damage to property belonging to others by or in the interests of a group of individuals ) ;", "( h ) DATE imprisonment pursuant to LAW ( b ) ( entering or leaving NORP territory illegally and with premeditation ) ;", "( i ) DATE community service pursuant to LAW ( manufacture , use and sale of false documents : seal , stamp , headed notepaper ) ;", "( j ) DATE imprisonment pursuant to LAW forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang ) .", "Is sentenced to DATE imprisonment pursuant to LAW ( aggregation of sentences for several offences ) to be served in ' strict regime ' penal institutions .", "PERSON is currently serving his sentence in ORG , which is under the authority of ORG GPE . He is in good health and is entitled to receive visits from close relatives . He did not receive an amnesty under LAW DATE .", "At the hearing on DATE , the Government informed the ORG that on DATE , CARDINAL officials from ORG had visited the applicants in FAC and FAC , which are respectively CARDINAL and QUANTITY from GPE . According to the ORG officials , the applicants were in good health and had not complained about their prison conditions either before or after trial .", "On DATE the NORP authorities communicated to the Government medical certificates that had been drawn up by military doctors in the prisons in which the applicants were being held . The doctors made the following findings :", "“ ... PERSON was imprisoned on DATE . He did not present any health problems on arrival . Examinations on DATE and DATE did not reveal any symptoms of pathology .", "On DATE the prisoner attended the prison medical centre complaining of general weakness and a bout of coughing . ... on examination he was diagnosed as suffering from acute bronchitis and was prescribed medication ... ”", "... Mr PERSON was imprisoned on DATE . He did not complain of any health problems on arrival . Examinations conducted on DATE , CARDINAL DATE and DATE did not reveal any symptoms of pathology ... ”", "To date , the applicants ' representatives have been unable to contact the applicants .", "Article CARDINAL of LAW reads as follows :", "“ The NORP State shall not accede to a request for the extradition of an alien by a foreign country for offences that are political in nature or related thereto .", "When called upon to deal with a request by a foreign ORG for the extradition of an alien , the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person 's nationality and the nature of the offence .", "No request for extradition may be granted if the criminal court finds that the person concerned is a NORP national or that the offence is political or military in nature or related to such an offence .", "If the criminal court finds that the person whose extradition is requested is an alien and that the offence is an ordinary criminal offence the request for extradition may be granted by the Government ... ”", "Extradition between GPE and GPE is governed by LAW between GPE and GPE ” , which entered into force on DATE . Under the relevant provisions of that agreement , “ each ORG undertakes to extradite to the other , in the circumstances and subject to the conditions set out in this agreement , anyone found in its territory who is accused or has been found guilty of an offence committed within the jurisdiction of the other ORG ” .", "Rule CARDINAL of the Rules of Procedure provides :", "“ The ORG may , prior to forwarding its views on the communication to the ORG party concerned , inform that ORG of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation . In doing so , the ORG shall inform the ORG party concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication . ”", "Rule CARDINAL § CARDINAL of LAW enables interim measures to be adopted in proceedings brought by individuals alleging a violation of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment . It reads as follows :", "“ In the course of the consideration of the question of the admissibility of a communication , the ORG or the working group or a special rapporteur designated under rule CARDINAL , paragraph CARDINAL , may request ORG to take steps to avoid possible irreparable damage to the person or persons who claim to be victim(s ) of the alleged violation . Such a request addressed to ORG does not imply that any decision has been reached on the question of the admissibility of the communication . ”", "Article CARDINAL provides :", "“ CARDINAL . The ORG shall have the power to indicate , if it considers that circumstances so require , any provisional measures which ought to be taken to preserve the respective rights of either party .", "Pending the final decision , notice of the measures suggested shall forthwith be given to the parties and to ORG . ”", "CARDINAL Article CARDINAL § CARDINAL of the LAW states :", "“ In cases of extreme gravity and urgency , and when necessary to avoid irreparable damage to persons , the ORG shall adopt such provisional measures as it deems pertinent in matters it has under consideration . With respect to a case not yet submitted to the ORG , it may act at the request of the Commission . ”", "Rule CARDINAL provides :", "“ CARDINAL . At any stage of the proceedings involving cases of extreme gravity and urgency , and when necessary to avoid irreparable damage to persons , the ORG may , at the request of a party or on its own motion , order such provisional measures as it deems pertinent , pursuant to LAW .", "With respect to matters not yet submitted to it , the ORG may act at the request of the Commission .", "The request may be made to the President , to any judge of the ORG , or to the ORG , by any means of communication . In every case , the recipient of the request shall immediately bring it to the President 's attention .", "NORP If the Court is not sitting , the President , in consultation with ORG and , if possible , with the other judges , shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectiveness of any provisional measures that may be ordered by ORG at its next session .", "The ORG , or its President if the ORG is not sitting , may convoke the parties to a public hearing on provisional measures .", "In its DATE Report to ORG , the ORG shall include a statement concerning the provisional measures ordered during the period covered by the report . If those measures have not been duly implemented , the ORG shall make such recommendations as it deems appropriate . ”", "Rule DATE provides :", "NORP In serious and urgent cases , and whenever necessary according to the information available , the Commission may , on its own initiative or at the request of a party , request that the ORG concerned adopt precautionary measures to prevent irreparable harm to persons .", "NORP If the Commission is not in session , the President , or , in his or her absence , one of the Vice - Presidents , shall consult with the other members , through ORG , on the application of the provision in the previous paragraph . If it is not possible to consult within a reasonable period of time under the circumstances , the President or , where appropriate , one of the Vice - Presidents shall take the decision on behalf of the Commission and shall so inform its members .", "The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures .", "The granting of such measures and their adoption by the ORG shall not constitute a prejudgment on the merits of a case . ”", "In its decision of CARDINAL DATE ( PERSON v. GPE and GPE ) , ORG dealt with the first case of a refusal by a ORG to comply with interim measures requesting it to stay execution of the death penalty . It pointed out that by ratifying LAW , ORG had undertaken to cooperate with the ORG in proceedings under the LAW , and that it had not discharged its obligations under LAW and LAW , Volume I ) .", "In its decision of DATE ( NORP et al v. The GPE , ORG . CARDINAL/CARDINAL ( DATE ) , PERSON . ORG ) , ORG said :", "“ CARDINAL By adhering to LAW , a State party to the LAW recognizes the competence of ORG to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in LAW ( Preamble and LAW . Implicit in a ORG 's adherence to the LAW is an undertaking to cooperate with the ORG in good faith so as to permit and enable it to consider such communications , and after examination to forward its views to ORG and to the individual ( LAW . It is incompatible with these obligations for a ORG party to take any action that would prevent or frustrate the ORG in its consideration and examination of the communication , and in the expression of its Views .", "CARDINAL NORP Quite apart , then , from any violation of the LAW charged to a ORG party in a communication , a ORG party commits grave breaches of its obligations under LAW if it acts to prevent or frustrate consideration by ORG alleging a violation of the LAW , or to render examination by the ORG moot and the expression of its Views nugatory and futile ...", "CARDINAL Interim measures pursuant to rule CARDINAL of the ORG 's rules adopted in conformity with article CARDINAL of the LAW , are essential to the ORG 's role under LAW . Flouting of the Rule , especially by irreversible measures such as the execution of the alleged victim or his / her deportation from the country , undermines the protection of LAW rights through LAW . ”", "In the case of a NORP citizen resident in GPE who was extradited to GPE despite the fact that interim measures had been indicated requesting a stay of extradition ( PERSON v. GPE , DATE , ORG . CARDINAL/CARDINAL , § CARDINAL) , ORG expressed the view that the ORG had failed to “ comply with the spirit of the Convention ” . It noted :", "“ ... ORG , in ratifying the LAW and voluntarily accepting the ORG 's competence under LAW , undertook to cooperate with it in good faith in applying the procedure . Compliance with the provisional measures called for by ORG in cases it considers reasonable is essential in order to protect the person in question from irreparable harm , which could , moreover , nullify the end result of the proceedings before ORG . ”", "In another decision that concerned the extradition to GPE of an ORG resident in GPE ( decision of CARDINAL DATE , ORG v. GPE , ORG . CARDINAL ) despite the indication of interim measures requesting GPE to stay the extradition , ORG reiterated that failure to comply with the requested interim measures “ ... could ... nullify the end result of the proceedings before ORG ( § CARDINAL ) .", "Provision is made for provisional measures to be ordered under the judicial settlement procedure in cases in which ORG has jurisdiction and for precautionary measures under the procedure of individual petition to ORG . ORG power to order provisional measures is derived from ORG power to adopt precautionary measures from its Rules of Procedure ( see paragraphs CARDINAL above ) . ORG has stated on several occasions that compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits ( see , among other authorities , the following orders : CARDINAL DATE , PERSON GPE ; DATE , CARDINAL DATE , CARDINAL DATE , DATE , PERSON v. GPE ; CARDINAL DATE and DATE , DATE and DATE , DATE , PERSON and Others v. GPE and GPE ; CARDINAL and DATE , CARDINAL DATE , NORP and NORP nationals of NORP Origin in GPE v. GPE ; CARDINAL DATE , DATE , DATE , PERSON GPE ; judgment of DATE , PERSON , PERSON , PERSON and Others v. GPE and GPE ) .", "As regards the scope of its precautionary measures , ORG is bound by the recommendations it has adopted on individual petition . In its judgment of DATE in the case of PERSON v. GPE , ( ORG . Ct . ORG . C ) No . DATE ) ) ORG considered that the ORG “ ha[d ] the obligation to make every effort to apply the recommendations of a protection organ such as ORG , which [ was ] , indeed , one of the principal organs of ORG , whose function [ was ] ' to promote the observance and defense of human rights ' ... ” .", "In CARDINAL orders requiring provisional measures , ORG ruled that GPE Parties to ORG must fully comply in good faith ( pacta sunt servanda ) with all of the provisions of the LAW , including those relative to the operation of the CARDINAL supervisory organs of ORG [ the Court and the Commission ] ; and , that in view of the ORG 's fundamental objective of guaranteeing the effective protection of human rights ( Articles CARDINAL(CARDINAL ) , CARDINAL , DATE and CARDINAL ) ) , GPE Parties must refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims ” ( see the Orders of DATE and DATE , in the case of PERSON . v. GPE and GPE ) .", "Article CARDINAL the Statute of the International Court of Justice provides for the adoption of provisional measures ( see paragraph CARDINAL above ) .", "ORG has pointed out in a number of cases that the purpose of provisional measures is to preserve the respective rights of the parties to the dispute ( see , among other authorities , the judgment of DATE , in the case of GPE v. ORG ) . In an order of CARDINAL DATE in the case concerning ORG ( GPE v. GPE ) , ORG said ( § CARDINAL ) that the power of the ORG to indicate provisional measures :", "“ ... has as its object to preserve the respective rights of the parties pending the decision of the ORG , and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings ; and ... the ORG must be concerned to preserve by such measures the rights which may subsequently be adjudged by the ORG to belong either to the PERSON or to the Respondent . ”", "In its judgment of DATE in the PERSON case ( GPE v. ORG ) , ORG noted :", "“ CARDINAL . ... The object and purpose of the Statute is to enable the ORG to fulfil the functions provided for therein , and in particular , the basic function of judicial settlement of international disputes by binding decisions in accordance with LAW . The context in which LAW has to be seen within the Statute is to prevent the ORG from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the ORG are not preserved . It follows from the object and purpose of the LAW , as well as from the terms of LAW when read in their context , that the power to indicate provisional measures entails that such measures should be binding , inasmuch as the power in question is based on the necessity , when the circumstances call for it , to safeguard , and to avoid prejudice to , the rights of the parties as determined by the final judgment of the ORG . The contention that provisional measures indicated under LAW might not be binding would be contrary to the object and purpose of that Article .", "A related reason which points to the binding character of orders made under LAW and to which the ORG attaches importance , is the existence of a principle which has already been recognized by ORG when it spoke of ' the principle universally accepted by international tribunals and likewise laid down in many conventions ... to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given , and , in general , not allow any step of any kind to be taken which might aggravate or extend the dispute ' ( Electricity Company of GPE and GPE , Order of DATE , PERSON , Series A / B , No . CARDINAL , p. CARDINAL ) .", "DATE of LAW of DATE , which is headed “ General rule of interpretation ” , provides :", "“ CARDINAL . A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose .", "NORP The context for the purpose of the interpretation of a treaty shall comprise , in addition to the text , including its preamble and annexes :", "( a ) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty ;", "( b ) any instrument which was made by CARDINAL or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty .", "There shall be taken into account , together with the context :", "( a ) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions ;", "( b ) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation ;", "( c ) any relevant rules of international law applicable in the relations between the parties .", "A special meaning shall be given to a term if it is established that the parties so intended . ”", "In a briefing for ORG that was made public in DATE , ORG stated :", "“ ... ORG remains concerned that GPE has failed to implement its treaty obligations fully despite numerous , wide - ranging and officially endorsed national initiatives in the fields of human rights education and democratization and judicial and legislative reforms aimed at bringing national legislation into line with international standards .", "Since DATE , when several murders of law enforcement officials in the GPE region sparked a wave of mass detentions and arrests , the organization has received a growing number of reports of ill - treatment and torture by law enforcement officials of people perceived to be members of independent NORP congregations or followers of independent imams ( NORP leaders ) . CARDINAL of these so - called ' Wahhabists ' were sentenced to long terms of imprisonment in trials that fell far short of international fair trial standards . The organization 's concern was heightened in DATE when CARDINAL of people , men and women , were detained following a reported CARDINAL bomb explosions in the capital GPE . This time the list of those reported to have been arrested , ill - treated and tortured included suspected supporters of the banned political opposition parties and movements PERSON and GPE , including family members and independent human rights monitors , as well as alleged supporters of banned NORP opposition parties and movements , such as ORG - ut - GPE . In the majority of these cases , if not all , that have come to the attention of ORG , those detained were denied prompt access to a lawyer of their choice , to their families and to medical assistance . The responsible authorities , from procurators to courts at all levels and the parliamentary ombudsman , persistently failed to launch timely , full and independent investigations into widespread allegations of torture and ill - treatment . According to independent and credible sources , self - incriminating evidence reportedly extracted by torture was routinely included in trial proceedings and served in many of the cases reviewed by ORG as the basis for a guilty verdict . ORG was disturbed by public statements by NORP officials , including the President of GPE , in the wake of both the ORG murders and the GPE bombings , which , if not directly sanctioning the use of violence by state agents against certain sections of the population , could be perceived at the very least to condone the use of unlawful methods such as torture and ill - treatment . In DATE , for example , President PERSON , portrayed as the guarantor of democracy and human rights , stated publicly that he was prepared to tear off the heads of CARDINAL people in order to protect GPE 's freedom and stability ... ORG is concerned that such statements together with the authorities ' persistent failure to initiate impartial and thorough investigations into allegations of torture and ill - treatment , may create an impression that torture and ill - treatment by law enforcement officials is acceptable , and even necessary conduct , and that they can engage in such conduct with impunity .", "This briefing does not attempt to be a comprehensive study of torture and ill - treatment in GPE . Instead it concentrates on those articles of the ORG which are most relevant to ORG current and most pressing concerns .", "Failure to ensure that all acts of torture are offences under the criminal law ( Article CARDINAL )", "GPE fails to fully meet the requirements under LAW to ensure that all acts of torture are offences under its criminal law and that such offences are punishable by appropriate penalties which take into account their grave nature .", "Neither the constitution nor the criminal code , although respectively prohibiting and punishing acts of torture , contain a definition of torture as set out in LAW . LAW guarantees under point CARDINAL that no one may be subject to torture , force , or other treatment which is cruel or demeaning to the dignity of the person .", "Article CARDINAL of the criminal code criminalizes obtaining a confession by coercion . Although explicit in its description of prohibited methods of coercion ( beatings , inflicting grievous or less grievous bodily harm , torture ) and specific in naming the perpetrators ( investigating and interrogating officers , procurators ) the article is still far more narrow in its definition of torture than LAW . The maximum penalty prescribed under this article is DATE imprisonment .", "Other articles , including LAW , punish various assaults but do not relate specifically to agents of the state ... The NORP press has reported that law enforcement officers have been prosecuted for using unlawful methods in detaining and interrogating suspects . However , to ORG knowledge , in the period under review , none of the law enforcement officials identified as perpetrators of acts of torture by victims of human rights violations whose cases the organization has taken up has been charged under the above articles of the criminal code ...", "ORG and again ORG has received credible reports that suspects were denied access to a lawyer of their choice . Often the lawyers are only given access by law enforcement officials after the suspect has been held in custody for DATE , which is when the risk of torture or ill - treatment is the greatest . In many cases law enforcement officials will only grant access to the lawyer after the suspect has signed a confession . Meetings between lawyers and clients , when they are granted , are generally infrequent , because unlimited access to a client as prescribed by the law is difficult for lawyers to obtain . Defence lawyers are rarely allowed to be present at all stages of the investigation ...", "LAW explicitly prohibits the use of torture and obliges judges , procurators , investigators and interrogators to respect a person 's honour and dignity at every stage of legal proceedings . Nevertheless , ORG has received countless reports from different sources – former prisoners , relatives of prisoners , defence lawyers , human rights monitors , international human rights organizations , diplomats , copies of court documents DATE that law enforcement officials continue to routinely violate legal obligations not to subject any person to torture or cruel , inhuman or degrading treatment .", "...", "Prison conditions", "Conditions under which detainees are held pre - trial are reportedly so poor as to amount to cruel , inhuman and degrading treatment . In DATE the NORP authorities admitted that conditions of detention fall far short of the ORG basic minimum standards for the treatment of prisoners . Overcrowding is the norm , with CARDINAL inmates to a bunk bed , sleeping in turns . Inadequate sanitation , shortages of food and basic medication exacerbate the risk of disease , such as tuberculosis . Former prisoners have described punishment cells as underground ' holes ' , QUANTITY with standing room only near the door . The rest of the cell is said to be QUANTITY in height , allowing the prisoner only to crouch or sit . Cells are also said to be overrun with vermin . As with the conditions on death row , these allegations are difficult to verify independently given the NORP authorities ' refusal to allow access to independent monitors . ”", "In its DATE Report of CARDINAL DATE , ORG noted with respect to GPE :", "“ Reports of ill - treatment and torture by law enforcement officials of alleged supporters of banned NORP opposition parties and movements , such as ORG - ut - GPE , continued unabated . CARDINAL of devout NORP and CARDINAL of members or supporters of the banned secular political opposition parties and movements PERSON and LOC were serving long prison sentences , convicted after unfair trials of membership of an illegal party , distribution of illegal religious literature and anti - state activities . Reports continued to be received that devout NORP prisoners were singled out for particularly cruel , inhuman and degrading treatment in places of detention , particularly prison camps . Several prisoners , among them a prominent human rights defender , died in custody , allegedly as a result of torture . There were CARDINAL death sentences , reportedly imposed after unfair trials , and CARDINAL executions were carried out .", "...", "In DATE PERSON , the exiled leader of the banned opposition ORG , was detained by NORP police at GPE airport , GPE . He was remanded in custody while an extradition request from GPE was being examined . In DATE he was released and returned to GPE , where he had received refugee status in DATE , after ORG ruled against extradition to GPE .", "In DATE President PERSON publicly stated that CARDINAL people were executed DATE . In DATE the number of offences punishable by death was reduced to CARDINAL .", "Allegations of torture and ill - treatment", "Reports of ill - treatment and torture by law enforcement officials of alleged supporters of banned NORP opposition parties and movements , including women , continued unabated . CARDINAL of devout NORP and CARDINAL of members or supporters of the banned secular political opposition parties and movements PERSON and LOC were serving long prison sentences , convicted after unfair trials of membership of an illegal party , distribution of illegal religious literature and anti - state activities . The courts were reported to have systematically failed to investigate or take into account the defendants ' allegations of torture . Defendants accused of non - political criminal activities were also reported to have been tortured and ill - treated in detention in attempts to coerce confessions .", "Reports continued to be received that devout NORP prisoners were singled out for particularly cruel , inhuman and degrading treatment in places of detention , especially in strict regime prison camps ...", "...", "In DATE , CARDINAL ethnic NORP mountain villagers were found guilty of collaborating with the IMU during their incursion into GPE in DATE and sentenced to CARDINAL imprisonment in CARDINAL separate closed trials . This was despite earlier government assurances to ORG that the action to evacuate the villagers was taken in order to improve the living conditions of the people concerned and that no criminal cases would be opened against these forcibly displaced villagers . The group trials , which opened simultaneously and without prior notice at DATE in GPE , were held in separate court buildings cordoned off by armed police . Relatives trying to gain access to the court proceedings were reportedly intimidated and attempts were made to force them to leave the city .", "CARDINAL foreign observer , representing the non - governmental organization ORG , obtained access to CARDINAL of the trials . All others , including foreign diplomats , local human rights monitors and the media , were barred .", "According to ORG observer , the prosecution failed to provide any substantive evidence to prove the defendants ' guilt . All the defendants had allegedly been held incommunicado until their trial and had not been granted the right to be represented by a lawyer of their own choice . In court the defendants reportedly withdrew their confessions and alleged that they had been tortured in order to force them to confess to fabricated charges . They alleged that they had been forced to memorize and recite prepared confessions on film . Some of the men showed the court marks on their bodies allegedly caused by torture . The court , however , failed to take any of these allegations into consideration .", "... ”", "Rule CARDINAL of the Rules of Court empowers a ORG or , where appropriate , its President , to indicate interim measures which it considers should be adopted . Past practice shows that in principle requests for interim measures under LAW are made in cases in which there is an imminent danger to the applicant 's life or of torture , or inhuman or degrading treatment or punishment . Such requests generally refer to ORG and CARDINAL of the LAW and concern a person 's deportation , extradition or repatriation to his or her country of origin ( whether it be ORG or another ORG ) by the ORG against which the complaint has been lodged .", "Rule CARDINAL of ORG Procedure provided :", "“ The ORG , or when it is not in session , the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it . ”" ]

[ "34" ]

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[ "3", "6" ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE .", "The applicants claimed to be the owners of a building in GPE , GPE . The Government contested this claim , stating that it appeared from the relevant records and from a letter written by the applicants themselves on DATE that the premises had simply been acquired by the ORG late father , Mr PERSON , under a public deed of DATE . The property had been transferred in perpetual emphyteusis ( a contract granting a tenement for a stated yearly rent or ground rent to be paid in money or in kind ) with effect from DATE . The deed in question included a clause stating as follows :", "“ As the said house has been requisitioned by the government it is hereby agreed that the period of CARDINAL ( DATE mentioned in this condition ( an obligation to carry out improvements ) will run from the date on which the keys of the said house shall have been given back by the government to the said PERSON . ”", "Having taken note of the disagreement between the parties on this point , the ORG will nevertheless refer in the present judgment to the building in issue as “ the applicants’ building ” or “ the applicants’ property ” .", "On DATE the authorities requisitioned the applicants’ building . They allocated the property first to ORG and then to ORG . The building was used as public offices .", "According to ORG , the yearly rent due at the time of the requisitioning was CARDINAL Maltese liras ( MTL – MONEY ( ORG ) ) . In DATE ORG decided that it should be increased to ORG CARDINAL ( approximately ORG CARDINAL ) per year . The applicants received this rent regularly and it was still being paid to them at the time the application was lodged ( DATE ) .", "On DATE the applicants brought constitutional proceedings before ORG . They argued that the requisitioning and continued occupation of their building amounted to a de facto expropriation . Furthermore , they observed that , even assuming that the measure complained of could be considered to be aimed at controlling the use of property , the authorities should nevertheless have been subject to the ordinary laws governing landlords and tenants . However , when a forced tenancy was established with the authorities , the usual remedies available to ordinary landlords against tenants were excluded , and the landlord - tenant relationship could not be terminated under the usual conditions . Hence , for example , whereas a lease in favour of an individual or a family might terminate in the absence of descendants or relatives entitled to succeed , a government , while its composition might change , remained a government and hence a lessee in perpetuity . In view of the above , the applicants alleged a breach of LAW No . CARDINAL taken alone or in conjunction with LAW .", "In a judgment of CARDINAL DATE , ORG rejected the ORG claim . It observed that , according to the caselaw of ORG , a deprivation of property could be said to have occurred only where all the legal rights of the owner had been extinguished . In the present case , the applicants were still receiving the rent due and had not been deprived of their right of ownership . Therefore , the requisition of their building could not be considered an expropriation .", "In ORG view , the measure complained of was aimed at controlling the use of property . The authorities had the power to interfere with the right of property in accordance with the general interest provided that their actions satisfied a “ fair balance ” test .", "According to the findings of ORG in GPE v. GPE ( no . CARDINAL , Commission decision of CARDINAL DATE , Decisions and Reports ( GPE ) DATE ) , in the implementation of policies of a socioeconomic nature , the margin of appreciation of the ORG was very wide . ORG found that in the present case the occupation of the property by the authorities could properly be said to be in the public interest .", "With regard to the claim of discrimination , ORG acknowledged that the applicants were burdened with a perpetual tenant and that the authorities could no longer issue requisition orders after DATE . However , referring to the Case “ relating to certain aspects of the laws on the use of languages in education in GPE ” ( DATE , Series A no . CARDINAL ) , ORG held that these facts did not amount to a violation of LAW , since the difference in treatment was proportionate and based on reasonable and objective grounds . In addition , it noted that the fact that no further requisitions could be carried out did not mean that those in force should not be maintained , especially since the public interest justifying them had not ceased to exist .", "The applicants appealed to ORG . They claimed that the requisition constituted a de facto expropriation rather than a measure to control the use of property . Moreover , it had not been carried out in the general interest , since the applicants’ building was being used by the government as offices and had not been allocated to private individuals needing subsidised housing . The measure complained of was therefore disproportionate and the authorities had abused their powers for their own benefit .", "The applicants further observed that they were being discriminated against , since the authorities were abusing their power and frustrating the applicants’ right to seek a remedy . They relied on LAW taken in conjunction with LAW No . CARDINAL .", "In a judgment of DATE , ORG dismissed the ORG appeal and upheld ORG judgment .", "The Constitutional Court reiterated that , since the applicants had retained their right of ownership and were still receiving rent , the measure complained of could not be considered a de facto expropriation , but was aimed at controlling the use of property .", "ORG noted that LAW , as in force at the time of the issuing of the requisition order , authorised requisitions either in the general interest or to meet the need for affordable housing . In the present case , the use of the building as a government department was clearly in accordance with the public interest .", "The Constitutional Court further pointed out that in GPE and Others v. GPE ( DATE , Series A no . CARDINAL ) , ORG had held that any interference with the right of property must strike a fair balance and be proportionate to the aims pursued . The regular payment of rent to the applicants mitigated the effects of the requisition and sufficed to achieve this balance . Moreover , during the constitutional proceedings the applicants had never complained that the amount of rent was unfair or unjust compared to the value of the requisitioned property . It was true that the authorities would probably continue using the building for an indefinite period of time ; however , this was lawful as long as the building was being used in the general interest .", "Lastly , ORG observed that the applicants had never claimed that they needed their property urgently for themselves or for their families . Hence , no “ individual and excessive burden ” had been imposed on them within the meaning of the GPE case - law .", "As to the ORG complaint under LAW , ORG noted that it was unclear what form of discrimination the applicants were claiming to have suffered . They had not clarified , either , what kind of remedies they had been unable to use . In any case , the authorities and the applicants were not “ persons in relevantly similar situations ” . ORG referred on this point to the case in GPE and LANGUAGE v. GPE ( DATE , Series A no . CARDINAL-B ) .", "According to section CARDINAL of LAW , requisition means", "“ ... to take possession of a building or require the building to be placed at the disposal of the requisitioning authority ” .", "Until DATE the ORG Secretary could issue a requisition order if he was satisfied that such a step was necessary in the public interest or in order to provide living accommodation to certain persons or ensure a fair distribution of living accommodation . Section CARDINAL(CARDINAL ) of LAW , as in force at the time of the requisitioning of the applicants’ building , read as follows :", "“ The Secretary , if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation , may requisition any building , and may give such directions as appear to him to be necessary or expedient in order that the requisition may be put into effect or complied with . ”", "After DATE authority to issue requisition orders was transferred to ORG . In section CARDINAL(CARDINAL ) of LAW , after the words “ public interest ” , the conjunction “ or ” was deleted and replaced by the words “ but only ” .", "A requisition order imposes a landlord - tenant relationship on the owner of the requisitioned LOC . According to LAW , the owner of the LOC has a right to compensation , which is calculated and payable pursuant to the criteria established in LAW . This provision , in so far as relevant , reads as follows :", "“ ( CARDINAL ) Subject as hereinafter provided , the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums , that is to say –", "( a ) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this LAW , under a letting granted immediately before the beginning of that period :", "Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of LAW , the rent shall not exceed the fair rent as defined in LAW ;", "( b ) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained ( except in so far as the damage has been made good during that period by the occupant of the requisitioned LOC or by a person acting on behalf of ORG ) , no account being taken of damage which , under the provisions of this LAW , is the responsibility of the requisitionee ;", "( c ) a sum equal to the amount of expenses reasonably incurred , otherwise than on behalf of the Director , for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking possession of the building ... ”", "According to LAW , “ fair rent ” means :", "“ ( i ) in respect of an old house the rent which might reasonably be expected in respect of an old house , regard being had to the average rents prevalent on DATE , as shown on the registers of ORG in respect of comparable dwelling houses in the same or in comparable localities :", "Provided that where , after DATE , structural alterations or additions in a house , whether old or new , have been carried out which , in the opinion of ORG , have enhanced the rental value of the house and in respect of which or , as the case may be , of a part of which , no compensation has been paid or is payable under the provisions of the War Damage Ordinance , DATE , and no amount has been paid or is payable by way of a grant by ORG of GPE , the rent shall be increased by an amount which , in the opinion of ORG , corresponds to the enhancement of the rental value and which shall in no case exceed a return of DATE a year on the capital outlay on the alterations or additions ( excluding any interest on loans or in respect of idle capital ) or , as the case may be , on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance , DATE , and no amount has been paid or is payable by way of grant by ORG of GPE , in every case as proven by the landlord to the satisfaction of ORG or , in default , as assessed by ORG ; and", "( ii ) in respect of a new house , a sum equivalent to a return of CARDINAL per centum a year on the freehold value of the site and of CARDINAL per centum on the capital outlay on construction ( excluding any sum which has been paid or is payable by way of a grant by the Government of GPE and any interest on loans or in respect of idle capital ) as proven by the landlord to the satisfaction of ORG or , in default , as assessed by ORG :", "Provided that where a payment under LAW , DATE , is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part , for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed DATE fair rent of the former building as on DATE , or CARDINAL per centum for DATE on that part of the capital outlay , whichever is the less ;", "( iii ) in respect of a scheme house , an DATE sum to be determined by agreement ... ”" ]

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[ "The applicant was born in DATE and lives in the village of GPE , GPE .", "The applicant worked at the ORG - owned ORG company ( Державна будівельно-промислова компанія « PERSON ) .", "On an unspecified date the applicant instituted proceedings against the above company in the Novograd - Volynskyy Town Court ( “ the ORG ” ) claiming CARDINAL NORP hryvnias ( ORG ) in salary arrears .", "By an order of ORG dated DATE , the company was liquidated and a liquidation commission established .", "On DATE ORG terminated the proceedings in the case because the company was in liquidation .", "By a letter of DATE the liquidation commission acknowledged the applicant 's claim of ORG CARDINAL,CARDINAL.CARDINAL . The applicant was included in the register of creditors of the company .", "On DATE the applicant was paid the full amount of the outstanding debt .", "The relevant domestic law is summarised in the judgment of ORG and Others v. GPE ( nos . CARDINAL , and the following , § § CARDINAL , ORG CARDINALXII ) ." ]

[ "P1" ]

[ "P1-1" ]

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[ "The first applicant , Mr PERSON is a NORP citizen , born in DATE , and lives at GPE , GPE . The second applicant , Mr Tomm Berntsen , also a NORP citizen , was born in DATE and lives in GPE , GPE . The first applicant is represented by PERSON Ole PERSON , a lawyer practising in GPE , GPE . The second applicant is represented by PERSON , a lawyer practising in GPE , and by PERSON , a lawyer practising in GPE , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "Background", "In DATE the applicants , together with CARDINAL other persons , founded a limited liability company , ORG , which in DATE was renamed ORG ( hereinafter referred to as VIP ) . The first applicant was Chairman of the company board during most of the period DATE and DATE ; DATE he was a board member and the managing director . The second applicant was the managing director and a board member during a large part of the period between the DATE of DATE and DATE . In addition , the applicants were major shareholders in VIP .", "The company 's trade consisted of acquiring media rights within television and home video industry . It developed into becoming a large - scale holder of film rights for television , cinemas and hotels in various countries . Until DATE , its business was largely concentrated on this kind of activities . While the company experienced a considerable expansion in its trade , its share capital increased from ORG CARDINAL,CARDINAL in DATE to ORG CARDINAL in DATE . To a large extent , new emissions of shares were used as a means to acquire capital for the purchase of other firms and to cover the running of the company and its financial costs . CARDINAL emissions of shares took place from DATE to DATE .", "In DATE , VIP merged with the company ORG , increasing the number of employees from CARDINAL . From being a relatively small company VIP became a mother company of a large diversified corporation with CARDINAL subsidiary companies involved in a number of different types of activities .", "In DATE , VIP failed to present within the prescribed time - limit the accounts for DATE . Following the discovery of a large unexpected deficit , debt settlement proceedings were opened in DATE .", "Criminal Investigation", "On DATE ORG ordered the GPE police to open an investigation into alleged criminal activity within VIP and certain other companies involved . On DATE , the police interrogated the applicants for the first time . The investigations , which lasted DATE , concerned suspicion that the applicants were guilty of serious fraud ( Articles CARDINAL and CARDINAL of LAW ) and of serious breach of trust ( Articles CARDINAL and CARDINAL ) inter alia in relation to the issuing and sales on the ORG stock market of CARDINAL invalid VIP shares in order to meet the company 's financial needs ; the issuing of CARDINAL invalid VIP shares and their transfer to a bank , subsequently replaced as security by CARDINAL equally invalid shares ; partial implementation of an agreement to the effect that CARDINAL of the applicants ' own VIP shares were sold to ORG illegally at a fixed and too high a price . Furthermore , they were suspected of serious embezzlement ( Article CARDINAL and CARDINAL ) in relation to ORG CARDINAL profits derived from an agreement concluded by the applicants without the board 's knowledge giving them a right to repurchase VIP shares at a fixed price . The applicants were moreover suspected of a number of other offences , including various violations of the accounting legislation , insider trading ( second applicant only ) and tax evasion ,", "ORG began to acquaint himself with the case as soon as he received the first recommendation from the police in DATE . Only when he received the last such recommendation in DATE could he gain a complete picture of the case . He then decided that it was too complex to be dealt with by his office and in DATE transferred the case to ORG ( ORG in GPE ) . This is a separate central police and prosecuting authority , set up in DATE - in order to bring together a broad range of expertise for the investigation of complex cases of economic crime - and fully operative since DATE .", "In the course of the investigations , the police heard CARDINAL witnesses and collected some CARDINAL-shelf metres of documents , in part by seizure , in part by voluntary means . The official case documents extended to QUANTITY . Altogether CARDINAL persons were charged ; of whom CARDINAL were finally indicted . At the time , the VIP case was the most extensive case of economic crime ever investigated by the NORP police .", "Criminal Proceedings", "On DATE an indictment was served on the applicants . In DATE the charges concerning insider trading were dropped . A second indictment was served on DATE . In DATE it was decided not to pursue charges relating to tax evasion and violation of accounting legislation . Those concerning serious embezzlement were also dropped . According to the Government , in some instances this was motivated by the state of the evidence , but in most instances it was done in order to simplify and expedite the proceedings . The indictments were replaced by other indictments on DATE by which the applicants were charged inter alia with fraud contrary to Articles CARDINAL and CARDINAL of the Penal Code .", "On DATE ORG ( PERSON ) scheduled the case to be examined as from DATE . The main hearing opened on CARDINAL DATE and involved a total of CARDINAL court DATE . The applicants were heard as well as CARDINAL witnesses .", "In decisions of various dates between DATE and CARDINAL DATE ORG , ORG and ORG refused the second applicant 's requests for reimbursement of his travel and subsistence expenses - amounting to ORG CARDINAL,CARDINAL in connection with travelling from GPE to GPE . Moreover , ORG refused his requests for photocopies of the case documents being sent to his address in GPE .", "By judgment of CARDINAL DATE ORG acquitted the applicants with respect to some of the charges against them but convicted them of violations of Articles CARDINAL and CARDINAL of LAW and of various provisions of LAW DATE ( LAW of DATE no . CARDINAL ) on account of the issuing and sales of shares without the required authority from the company 's governing board . Pursuant to LAW it deferred the issue of sentencing pending a probationary period of DATE . The latter conclusion , which meant that no sentence would be imposed provided that the applicants did not re - offend within the prescribed period , was based on ORG finding of violation of LAW . It observed that , since the entire case had lasted from DATE until DATE , approximately a period of DATE , the requirement in DATE that proceedings be concluded within a \" reasonable time \" had been violated . The applicants were not ordered to pay any costs .", "The Prosecution appealed against ORG judgment , contesting principally its findings as to sentencing and , in the alternative , the ORG acquittals on certain charges . In their cross - appeal the applicants challenged their convictions by ORG .", "By judgment of DATE , ORG ( lagmannsrett ) , sitting with Mr Justice PERSON , PERSON Justice PERSON and ORG , together with CARDINAL lay judges , acquitted the applicants of the charges of serious breach of confidence under LAW , cf . CARDINAL , of the Penal Code but convicted them of various charges under Articles CARDINAL and CARDINAL and a number of provisions of ORG . It sentenced them to CARDINAL and a half years’ imprisonment of which DATE were suspended with a probationary period of DATE . They were not ordered to pay costs .", "As regards sentencing , ORG judgment included the following reasons :", "“ ORG has concluded that the time elapsed - approximately DATE before a final judgment can be expected - is too long , and that the time spent prior to the date in DATE when the summary of evidence was made available and the final indictment of DATE must essentially be attributed to the prosecution . In view of the complexity of the case , - owing , inter alia , to the extensive documentation resulting from investigations of a large number of companies - it must be accepted that the police investigations were planned from the outset to have considerable scope . The amount of time spent at this stage must therefore be viewed against the background of the whole complex of cases . ORG has therefore no particular comment to make on the time spent DATE , when the charge was transmitted to ORG . However , in ORG view , the prosecuting authority has not been able to establish the existence of special circumstances that could justify the excessive lapse of time until the summary of evidence and the final indictment were made available . Had the case been processed with reasonable expediency , it should have been possible to set the case down for trial by DATE , at the latest .", "The final indictment and the summary of evidence were not available until DATE . In the view of ORG it seems reasonably clear that the case should have been tried by ORG by DATE . A period of DATE must be regarded as sufficient for the defence lawyers’ preparation of the case . ORG has an independent responsibility for ensuring that the case be tried within a reasonable time . ORG nevertheless places reliance on the fact that ORG had to give due consideration to the defence lawyers’ requests for time for preparation of the case . All factors taken into consideration , the defence lawyers’ many initiatives in relation to the attempts by the prosecuting authority to set a date for the trial must also be seen as reflecting a wish to delay the trial by making exaggerated demands for preparation time . The additional period of DATE that elapsed before the case came before ORG must therefore be attributed to the indicted persons . For the sake of the record , it should be mentioned in this connection that ORG was able to offer an DATE that was not convenient to the defence lawyers .", "Taken as a whole , the High Court finds that CARDINAL of the CARDINAL½ years that have now been spent on the case can not be regarded as part of ‘ reasonable time’ , and that the indicted persons could not be held directly responsible for this . This fact must have major consequences for the sentence .", "...", "… Had the case been tried within a reasonable time , a longer custodial sentence would have been appropriate . The High Court finds , with reference to the long time that has elapsed , that a considerable part of the sentence must be made conditional , but ORG will not make the sentence wholly conditional or grant a conditional deferral of sentence , as was done by ORG . The general deterrent effects are considered to be of major importance in this regard . ”", "The applicants sought to appeal against ORG judgment to ORG . They maintained that , in view of the excessive duration of the criminal proceedings against them , the issue of sentencing could be deferred or , at least , they should be given suspended sentences . In any event , they considered that , in view of the nature of the offences , their sentences to CARDINAL½ PERSON imprisonment were too severe . The prosecution requested ORG to reject the appeal . ORG of ORG ( Høyesteretts kjæremålsutvalg ) allowed the appeal in as far as it concerned the issue of sentencing .", "In its judgment of DATE , ORG , by CARDINAL votes to CARDINAL , decided to modify the sentence ordered by ORG to a suspended sentence with DATE , in accordance with the ORG CARDINAL of LAW .", "PERSON , with whom the majority agreed , stated :", "“ I have reached the conclusion that the appeal must be upheld so that the whole prison sentence be suspended .", "By way of introduction , I should like to point out that even though ORG has been vested with full powers to review the evidence concerning the question of guilt , the factual basis for ORG will in ORG such an extensive case as this one not be as good as that of ORG . In this connection I mention that the case was heard DATE and that CARDINAL witnesses were heard . The state of the evidence warrants giving the assessments made by ORG considerable weight with respect to the contentious issues of importance to sentencing . In the present case this is of particular importance for the assessment of the questions related to the duration of proceedings .", "The case concerns particularly serious matters and very large amounts of money . Even though no economic loss has arisen directly as a result of the offences , there must have been a considerable risk of such loss being incurred by the injured parties and by others . The central provisions in ORG concerning the expansion of capital have been neglected . Had it been known that invalid shares had been issued in a company registered on ORG , it could have had important repercussions on confidence in the company , irrespective of whether the formal requirements were subsequently fulfilled and its shares were then considered valid . Both the ORG shareholders and its creditors could have suffered losses .", "...", "Even though those convicted were acquitted of the charges of breach of trust , the breach of confidence which they committed vis - à - vis the company by abusing their positions must be taken into account in sentencing .", "Those convicted have strongly emphasised that they did not act in order to obtain a personal gain . ORG has not considered this as an adequate description of the situation , something to which I agree . They had considerable share - holding positions in the company and occupied prominent posts . Were the company to have had a financial crisis this would undoubtedly have strongly affected them financially and would have had a great importance for their reputation .", "As regards offences of the kind for which [ the applicants ] have been found guilty , the starting - point must be that a long and unconditional prison sentence should be imposed . I find no reason for departing from the assessment made by ORG that they should receive the same sentence and I refer to ORG statements at this point . The length of the prison sentence , on which ORG unanimously has decided , can not be seen as disproportionate and should in my view be maintained . On the other hand , as already mentioned , I have reached the conclusion that the sentence as a whole should be suspended .", "This is exclusively due to the long period which has elapsed . As regards the relationships between NORP criminal law and Articles CARDINAL § CARDINAL and CARDINAL of the Convention , I here refer to the decision in GPE ( ‘ NRt’ ) DATE , p. CARDINAL . As in that case , I find no reason to consider in more detail whether the length of the proceedings must be deemed incompatible with LAW .", "The parties agree that DATE is the starting - point for the period to be taken into consideration in the assessment of the length of time . It has taken DATE to bring the case to the point of a legally enforceable judgment . This in itself is a very long period . In the above - mentioned decision of DATE , it is stated that , in as far as the duration of the proceedings in an extensive case of economic crime is necessary , the length can not be given particular importance in sentencing . Nevertheless , I suppose that this must be subject to qualification in cases of particularly long periods , save if the length is mainly caused by the convicted person ’s own conduct , for instance where s / he has been evasive and where for this reason it has not been possible to hear the case within a reasonable time .", "The duration of proceedings in our case is due to several factors . ORG has made an extensive assessment of this question and has concluded that CARDINAL of the CARDINAL½ years which the case at that time had taken , could not be regarded as ‘ reasonable time’ and could not be attributed to the conduct of those convicted . But it was also stated that a part of the time used was caused by the defence 's own conduct , notably steps which apparently were attempts to delay the decision to set the case down for trial . DATE of the time spent was attributed to the defendants .", "CARDINAL point which was disputed during the proceedings before ORG was how one should consider the time spent on matters which did not lead to indictment before the ORG . When the police , in a case concerning economic crime , have received a report from the trustees in bankruptcy or , as here , from a debt settlement board , pointing to suspicious circumstances in several matters , the police must be given a reasonable time to investigate the case as a whole , without the accused being able to invoke , as a rule , unreasonable length of time solely on the basis that some of the matters of which they were suspected did not lead to formal indictment . In the case before us the investigations were carried out , inter alia , into the ORG accounting and those investigations were time - consuming . I find it clear that the time spent on such investigations in principle can not have any impact on sentencing in a situation where the company was insolvent and where there was suspicion relating to several offences . I note that the indictment of CARDINAL DATE concerned extensive breaches of Article CARDINAL , second sentence , cf . first sentences , cf . LAW ( CARDINAL ) and other provisions , charges which were later dropped in the interest of economy of the procedure . Even though the assessment obviously can not be based on the assumption that those convicted were guilty with respect to matters which were not adjudicated , one would have to take into account in the assessment of the duration of the proceedings that it concerned investigations of a large business corporation and that it inevitably took time to identify the criminal offences in question .", "It thus clearly appears that an extensive and time - consuming investigation was necessary and that , when this was finalised , there remained a considerable task for the prosecution in connection with the preparation of the indictment and for the defence lawyers . In any event , even the prosecution agrees that the duration of the proceedings has been too long and that this must carry weight in sentencing . The delay , which was caused by the fact that the case was taken over by ORG in DATE , must be to the benefit of the accused . Otherwise , I see no reason to deal with the particular matters which have or may have delayed the proceedings .", "Those convicted have been found guilty of particularly serious offences , but in my view there are no penal policy considerations which suggest that , DATE after the investigations started , they should serve a prison sentence . ”", "In his dissenting opinion Mr ORG stated :", "“ I share the [ above ] views as regards the offences committed by those convicted . I further agree that the duration of the proceedings must be given considerable importance in sentencing . ORG has in my view done so to the extent required when it decided that CARDINAL of the CARDINAL½ DATE of the prison - sentences should be suspended . In my opinion there is moreover reason to consider that the defence must be deemed responsible for a greater share of the unnecessary time consumption than considered by ORG . ”", "Compensation proceedings", "On DATE the first applicant submitted a request to ORG for compensation of pecuniary and non - pecuniary damage under ORG CARDINAL and CARDINAL of LAW . In the first place , he claimed ORG CARDINAL in compensation for incurred and future legal costs in connection with his application to ORG concerning the length of the criminal proceedings against him . Secondly , he sought ORG CARDINAL in compensation for non - pecuniary damage .", "In a decision of DATE , ORG , sitting with Mr Justice PERSON , PERSON Justice PERSON and ORG , rejected the entirity of the claim .", "The first applicant subsequently challenged the High Court ’s decision before ORG of ORG . By decision of DATE , the ORG rejected the appeal .", "As regards the claim for compensation of legal costs , ORG unanimously agreed with ORG that the application to GPE was not necessary in order to expedite the national proceedings and that , accordingly , the conditions for compensation under LAW were not fulfilled .", "As to the claim for compensation for non - pecuniary damage caused by the length of the criminal proceedings , ORG found , by CARDINAL votes to CARDINAL , that there were no grounds for upholding this claim . Mr Justice Gjølstad and Mr Justice Tjomsland voted in favour of rejection , while Mr Justice PERSON voted against .", "The majority quoted from passages in ORG judgment of DATE dealing with the reasons why the proceedings had lasted for DATE . Bearing this in mind , the majority based its assessment of the compensation issue on ORG finding that the criminal proceedings had exceeded by DATE what could be considered a reasonable time . The majority first considered that the protraction of the proceedings of DATE must have caused great inconvenience to PERSON . In this connection , the majority emphasised the ORG 's responsibility for ensuring that criminal proceedings be concluded within a reasonable time . On the other hand , the majority considered that a significant factor in the case at hand was that the prison sentence , because of the excessive duration of the proceedings , had been suspended . Had the case been investigated and adjudicated within a reasonable time it could be presumed , on the basis of ORG judgment , that they still would have to serve a prison sentence of GPE DATE . As a consequence of the fact that the proceedings had lasted DATE beyond what would have been reasonable , he had been released from a great burden of having to serve a very long prison sentence .", "The majority further stated :", "“ [ I]t would not be correct , when making the very broad assessment foreseen by the statutory provisions , to disregard the penal - law consequences of the duration of the proceedings in the determination of a claim for compensation of nonpecuniary damage . Apart from the claim with respect to costs , no claim has been made for compensation of pecuniary damage in relation to the length of the proceedings . Also in previous cases where ORG has found that the requirement of reasonable length of criminal proceedings has been violated , it has attached significance to whether the length has been taken into account in sentencing in making its assessment of whether non - pecuniary compensation should be award as ‘ a ORG in accordance with LAW ( see the above - mentioned decision reported in NRt DATE , p. CARDINAL ) .", "In the light of this , the majority , like ORG , finds that given the importance attached to the duration of the proceedings in the sentencing , there were no special circumstances in the present case suggesting that it would be reasonable to make an award for compensation of non - pecuniary damage . ”", "The minority , Mr Justice PERSON , observed that it was primarily the general interest of penal policy , which justified reducing the sentence on the ground of excessive duration of criminal proceedings . The rules on compensation for non - pecuniary damage in LAW were based on different considerations . It was , as was also stated in the provision , a tool for providing the person , who had suffered a disproportionate damage as a result of prosecution , economic compensation for the injury or other non - pecuniary damage which the person had suffered . The rule was related to other statutory provisions on compensation for non - pecuniary damage , in particular LAW . Under LAW it was nevertheless a condition that such compensation from the ORG appeared reasonable in the particular circumstances ( Article CARDINAL ) and that there were particular reasons for the ORG to grant such compensation ( Article CARDINAL ) . Mr Justice PERSON noted that the majority was of the view that the special burden , which PERSON had suffered , was sufficiently compensated by his being released from his duty to serve the prison sentence . However , in Mr Justice PERSON ’s opinion , penal policy considerations and the justifications for compensation for nonpecuniary damage should be kept apart .", "Revision proceedings", "On DATE the first applicant requested that his compensation claim , rejected by ORG of ORG on DATE , be given a fresh examination by ORG so as to amend the earlier decision . He submitted that Mr Justice Tjomsland , because of his previous participation and views expressed in the appeal on sentencing , should have withdrawn from taking part in the ensuing compensation case . The first applicant invoked Sections CARDINAL and CARDINAL , subsection CARDINAL , of ORG and LAW . Considering that there was no legal basis for amendment , the ORG proposed to examine the request as CARDINAL for revision , to which the applicant did not object .", "On DATE , ORG , sitting in a different composition than in the compensation proceedings , refused to grant revision of the decision of DATE . It recalled that , as a rule , the same judges who examined the question of guilt should determine compensation claims of the kind in issue . While the preparatory works for LAW did not contain any justifications for this arrangement , the latter could not as such be deemed incompatible with LAW . Thus , under the relevant law , a judge 's previous participation in the criminal case against a person claiming compensation was not of its own an obstacle to the judge 's taking part in the compensation case . Under LAW of ORG , the purpose of which provision was to secure the confidence of the public in the impartiality of the judiciary , a judge would not be prevented from taking part solely on the ground that he or she had adjudicated a case concerning the same parties ( NRt DATE , p. CARDINAL ) . The same applied where the new case arose from the same factual background ( NRt ORG had not been required under LAW to withdraw from consideration of the compensation case .", "b. Relevant domestic law", "Article CARDINAL of the Penal Code provides :", "“ A person shall be liable for punishment if he by intent seeks to obtain for himself an unjust enrichment", "by causing , strengthening or exploiting a delusion , unlawfully delude someone into an action resulting in damage or a risk of damage for him or the one on whose behalf he is acting , or", "The penalty for fraud is fines or imprisonment of DATE . The same applies to aiding and abetting such conduct . ”", "Under LAW , a person who is found guilty of serious fraud shall be punished by up to DATE imprisonment and may also be liable to pay fines . The same applies to the aiding and abetting of such an offence .", "Article CARDINAL of the Code of Criminal Procedure reads :", "“ Even though the conditions in LAW are not fulfilled , the court may award the accused compensation for particular or disproportionate damage occasioned by the criminal proceedings if this would be reasonable in the circumstances . ”", "Article CARDINAL states :", "“ If the conditions for compensation under LAW are fulfilled , the court may , if it is warranted by particular reasons , award the accused a suitable sum in compensation for the infringement or other damage of non - pecuniary character which he has sustained in connection with the criminal proceedings . ”", "Article CARDINAL(CARDINAL ) , third sentence , provides :", "“ For the examination of a request for compensation , the court should in as far as possible be constituted with the judges who adjudicated the criminal case . ”", "The relevant provision of Section CARDINAL of ORG ( domstolloven - PERSON of CARDINAL DATE no . CARDINAL ) reads :", "“ No one shall sit as a judge or lay judge", "…", "if he has previously been involved in the case as arbitrator or as a lower - court judge , lay judge or clerk . ”", "Section CARDINAL provides :", "“ Nor may a person sit as a judge or a lay judge if there are other particular circumstances which are liable to weaken the confidence in his impartiality . This applies in particular if a party requests that he withdraws on this ground . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant and ORG were arrested by police officers GPE and GPE in the act of committing a theft . The applicant had a hammer in his hand at the time of arrest . Later he was charged with attempted theft and violent resistance to a public official ( virkamiehen väkivaltainen vastustaminen , våldsamt motstånd mot tjänsteman ) .", "At the trial hearing before the GPE ORG ( käräjäoikeus , tingsrätten ) the applicant admitted the attempted theft but denied the charge of violent resistance to a public official . Both the applicant and police officer GPE were heard . GPE testified , inter alia , that the applicant had threatened him and his colleague PERSON with a hammer by waving it above his head when the police officers had interrupted the attempted theft . The applicant , for his part , said that he had seen the police arrive and that he had raised the hammer above his head while leaving the building , before the police officers had ordered him to drop it . He denied any intention to threaten the police officers . ORG testified that the applicant had tried to escape . ORG was not heard as a witness .", "On DATE ORG convicted the applicant of attempted theft and violent resistance to a public official , finding GPE ’s statement reliable . The applicant was sentenced to an aggregate punishment of CARDINAL months’ imprisonment .", "On DATE the applicant appealed to ORG ( hovioikeus , hovrätten ) requesting an oral hearing in which he , ORG , GPE and ORG should be heard in order to clarify his behaviour outside the building where he was arrested and the alleged threatening of the police officers . He did not specify why NORP in particular should be called as a witness .", "On DATE ORG upheld the conviction , reducing the sentence to CARDINAL months’ imprisonment . It found an oral hearing manifestly unnecessary , holding that the applicant ’s account before ORG - which he had not contested - and his writ of appeal indisputably proved that he had seen the police officers outside the building . He had then left the building with a hammer raised in the air and had taken some steps towards the police officers . His intention had been to escape . Having seen one of the police officers draw a handgun , he obeyed their orders to drop the hammer when QUANTITY away from them . ORG held that the question whether the applicant had violently resisted a public official could be reliably resolved on the basis of these undisputed facts without hearing witnesses .", "As to the merits , it ruled that “ the applicant must have understood that he had threatened the police officer with violence by , as he had stated himself , stepping towards him with a hammer in the air . The intention to escape mentioned by the applicant proves that he also intended to threaten the police officer with violence in order to escape from the scene of the crime . ”", "On DATE the applicant sought leave to appeal to ORG ( korkein oikeus , högsta domstolen ) . He claimed that according to the domestic legislation ( LAW , sections DATE of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) , see paragraphs CARDINAL and CARDINAL below ) ORG should have held an oral hearing and heard the witnesses . He stressed that the matter turned on the credibility of the oral evidence .", "On DATE ORG , by a majority , refused the applicant leave to appeal .", "Chapter CARDINAL , section CARDINAL of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ; Act no . PERSON ) provides that ORG shall hold an oral hearing if the defendant in a criminal case so requests . An oral hearing may however be dispensed with if the appeal is manifestly ill - founded or if a hearing would be manifestly unnecessary for another reason .", "Under LAW , LAW CARDINAL of the Code , ORG shall hold an oral hearing regardless of whether one has been requested , if the decision on the matter turns on the credibility of the testimony admitted in ORG or on new testimony to be admitted in ORG . In that event , the evidence admitted in the ORG shall be readmitted at the hearing before ORG unless there is an impediment to doing so .", "Under LAW , section CARDINAL of the said LAW no . DATE ) if a piece of evidence that a party wishes to adduce pertains to a fact that is not material to the case or has already been proved , or if the fact can be proved in another manner with considerably less inconvenience or cost , the court may decide not to admit this piece of evidence ." ]

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[ "The applicant is a GPE national , born in DATE and currently residing in GPE .", "", "A.", "In DATE the applicant opened a clothes shop in GPE and in DATE she engaged a certain PERSON as a trainee sales assistant . In DATE PERSON was employed as a full time shop assistant .", "In DATE the applicant informed PERSON that she no longer required her services as she had sold the shop and was moving to GPE . The applicant left GPE on DATE . She returned to GPE on CARDINAL occasions , in DATE , DATE and DATE .", "On DATE PERSON summoned the applicant to appear before ORG . She claimed , inter alia , that the training contract was null and void and that she was entitled to a higher severance payment . PERSON requested the bailiff to serve the summons at the applicant ’s address in GPE . As the applicant was absent , the bailiff , acting in accordance with LAW ( hereinafter referred to as the “ ORG ” ) , left a notice on her letterbox and sent her a registered letter , informing her that a copy of the summons had been deposited at ORG registry .", "A number of witnesses were heard before FAC on CARDINAL and DATE . Neither the applicant nor her lawyer took part in these hearings .", "In a judgment of DATE , filed with the registry on DATE , the PERSON accepted PERSON claim and ordered the applicant to pay to her former employee the total sum of CARDINAL ORG ( CARDINAL ORG ) . This judgment was served on the applicant on DATE at her address in GPE in accordance with Rule CARDINAL of the ORG .", "The applicant took cognisance of this judgment only on DATE , when she was on holiday in GPE .", "On DATE the applicant lodged an appeal with ORG , challenging the lawfulness of the serving of the summons and of the first - instance judgment . She alleged , inter alia , that as she had moved to GPE in DATE , the summons should have been served on her at her address in GPE . In this respect , the applicant requested the examination of a number of witnesses who could testify that PERSON knew her new address and telephone number in GPE . Observing that she had been unaware of the action brought against her and had taken cognisance of the Magistrate ’s judgment only on DATE , the applicant requested ORG to declare that the first - instance proceedings were null and void .", "In a judgment of DATE , ORG held that the first - instance decision had became final on DATE and rejected the applicant ’s appeal as being out of time . It observed that , as appeared from the certificates issued by ORG and ORG , at the relevant time and at least until DATE the applicant had her official address in GPE . Even assuming that PERSON was aware that the applicant had left ORG , nothing suggested that this moving had a definitive character . As the applicant ’s name was still written on the letterbox placed in front of her house , the serving of the summons and of the ORG judgment was valid and lawful .", "On an unspecified date , the applicant appealed on points of law , reiterating the objections raised before ORG . In a memorial of DATE , she recalled that the competent authorities had refused to hear the witnesses who could have testified that she had sold her business and that PERSON knew her address and telephone number in GPE .", "In a judgment of CARDINAL DATE , filed with the registry on DATE , ORG , considering that the lower court ’s decision was logical and well - reasoned , rejected the applicant ’s claim . It recalled that a person was presumed to reside in the place of his or her official residence and that this presumption could be overruled only by very substantial elements . The relevant parts of this judgment read as follows :", "“ ... the allegations of the applicant , aimed at obtaining a declaration that the serving ex LAW ORG was null and void , are based on CARDINAL assertions :", "a. that PERSON moved to GPE ;", "b. that this moving had a definitive character ;", "c. that it is up to PERSON to show that her moving was not definitive ...", "ORG just considered the fact that the applicant ’s residence was still in GPE , via PERSON no . CARDINAL , as this was evident not only from the bell and the letterbox , but also from the documents issued by ORG and ORG . The applicant ’s official address after her ( alleged ) moving remained unchanged ...", "Even assuming that there had been a moving , it is not clear why it should be up to PERSON to prove that this moving “ was not definitive ” . The objection has been raised by PERSON GPE . It is up to her to prove the facts on which her objection is based ... ” .", "ORG noted that PERSON did not produce any relevant document proving her moving to GPE , then continued as follows :", "“ In her appeal , PERSON requested ORG to examine a number of witnesses who should have testified that PERSON was aware of her moving to GPE ... On this point , the ORG shares ORG finding that “ even assuming that [ PERSON ] was aware that PERSON had left GPE ... this does not mean that she should have inferred that this moving was a definitive one ... ” . ORG reasoning is clear : CARDINAL facts should be proved , the moving and its definitive character . This second element has not been proved and could not have been proved by the witnesses sought by the applicant ... This confirms that ... no moving has been proved , neither temporary , nor definitive . Therefore , the serving of the summons and of the first - instance judgment is lawful and the decision of ORG has now become final ... ”", "B. Relevant national law", "Article CARDINAL of the ORG reads as follows : “ If the actual delivery of the act is not possible because of the absence , lack of capacity or refusal of the persons indicated in LAW [ the consignee , a member of his or her family , a person charged of his or her house or business ] , the bailiff deposits a copy of the act to be served at ORG ... , puts a notice ... on the front door of the consignee ’s house or office and informs him or her by means of a registered letter ” ." ]

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[ "On DATE the applicant was brought before ORG ( Prokurator Wojewódzki ) , charged with fraud and forgery and detained on remand . Since the applicant reported to the prosecutor that he was suffering from various ailments – in particular , depression – the authorities ordered that he be examined by a doctor . After the examination , which was carried out DATE , the applicant was found fit to be detained in prison . He was placed in FAC ) .", "Later , on an unspecified date , the applicant appealed against the detention order . On DATE ORG ( Sąd Wojewódzki ) dismissed his appeal , finding that there were strong indications that he had committed the offences with which he had been charged . Referring to the results of his medical examination , the court found no circumstances which would justify his release on health grounds .", "From DATE to DATE the applicant filed CARDINAL applications for release and appeals against decisions refusing to release him .", "In the meantime , in DATE , the applicant had attempted to commit suicide in prison . From CARDINAL DATE he went on hunger strike for an unspecified period .", "NORP In DATE the authorities ordered that the applicant be examined by doctors . The relevant report was made by experts of ORG of ORG on DATE . The doctors considered that the applicant was not fit to be detained in an ordinary prison and recommended that , if his detention was to be continued , he should be confined in the psychiatric ward of a prison hospital . The applicant was subsequently taken to ORG , where he was placed in a ward for internal diseases and given treatment for his mental condition . The applicant stayed in the hospital for an unknown period . He was then transferred back to FAC .", "On DATE and DATE the applicant was examined by specialists in forensic medicine . They considered that he needed psychiatric treatment in prison but that it was not necessary to place him in the psychiatric ward of a prison hospital .", "On DATE a bill of indictment against the applicant was lodged with ORG . In all , CARDINAL charges were brought against him and his CARDINAL co - defendants . The case file comprised CARDINAL volumes . The prosecution requested the court to hear evidence from CARDINAL witnesses .", "On DATE , at the court ’s request , doctors from ORG and ORG of ORG reported on the applicant ’s psychological state . Their report stated , inter alia :", "“ The patient shows persistent suicidal tendencies . Following the medical examination , we find that he is suffering from a deep syndrome of depression accompanied by thoughts of suicide . In the light of the intensity of the suicidal thoughts and of the fact that he has already attempted to commit suicide , he should receive psychiatric treatment . His detention seriously endangers his life ( a grave risk of a further suicide attempt ) ... ”", "On DATE ORG quashed the detention order .", "On DATE , DATE and DATE and on DATE and DATE the court held hearings in the applicant ’s case . A hearing listed for DATE was cancelled because the applicant failed to appear . His lawyer submitted a certificate to the effect that the applicant was on CARDINAL days’ sick - leave ; however , the court ordered that the applicant should , within DATE , submit a medical certificate issued by a forensic expert , “ failing which preventive measures [ środki zapobiegawcze ] to ensure his presence at the trial [ will ] be imposed on him ” . The applicant did not submit the required certificate but , on DATE , informed the court that he was undergoing climatic treatment in Świnoujście and was to stay there until DATE . On DATE , since the applicant had not informed the court of the address at which summonses could be served on him , the court ordered that a “ wanted ” notice be issued with a view to locating and redetaining him on the ground that he had failed to attend hearings . The next hearing scheduled for DATE was cancelled due to the applicant ’s absence .", "NORP The detention order of DATE had not been enforced by DATE , when the applicant was arrested by the police in connection with a traffic offence . He was placed in FAC .", "ORG listed hearings for DATE and DATE but cancelled all of them because the applicant ’s mental state ( in particular , his difficulties in concentrating ) did not allow him to participate properly in the trial . In a prison doctor ’s note made on DATE his state was described as follows :", "“ Is able to take part in DATE ’s proceedings ( with limited active participation on account of [ illegible words ] difficulty in concentrating ) . ”", "According to a further expert report ( obtained by the court at DATE ) the applicant was “ not suffering from mental illness ” at that time and his mental state was “ not an obstacle to keeping him in detention ” .", "Meanwhile , on DATE , the applicant ’s lawyer had unsuccessfully appealed against the detention order , arguing that the applicant , after his release on DATE , had received continuous treatment for his severe depression and that his failure to appear before the trial court had been due to his psychological state .", "DATE and DATE the applicant made CARDINAL further unsuccessful applications for release and appealed , likewise unsuccessfully , against each refusal .", "On CARDINAL , DATE and DATE the court held hearings . Hearings scheduled for DATE were cancelled as , on DATE , the applicant had attempted to commit suicide by taking an overdose ( see paragraphs QUANTITY below ) .", "The trial continued on CARDINAL , DATE and DATE . The hearings listed for DATE were cancelled because the presiding judge was ill . Subsequent hearings took place on CARDINAL , DATE and DATE . In the meantime the applicant had undergone psychiatric observation in FAC ( see paragraph CARDINAL below ) .", "The next hearing took place on DATE . The hearings listed for CARDINAL and DATE were cancelled because the applicant had withdrawn the power of attorney granted to his defence counsel . The trial continued on DATE and DATE , DATE and DATE , and DATE and DATE . The hearings listed for CARDINAL , DATE and DATE were cancelled because CARDINAL of the applicant ’s co - defendants was admitted to hospital at that time .", "In the meantime , on CARDINAL DATE , the applicant had complained to the President of ORG about the length of his detention and the conduct of the proceedings in his case . He complained , in particular , that all of his CARDINAL co - defendants had been released , whereas he was still being detained despite the fact that the overall length of his detention had now exceeded DATE . He asserted that TIME of the hearings had not reflected witnesses’ testimony , that the court had failed to enter in the record his and his lawyer ’s submissions and had not allowed him to express his version of the facts of the case freely . The criminal proceedings against him , which had to date lasted DATE , were , to use his term , a “ nightmare ” .", "On DATE the applicant complained to the court about his psychiatric treatment in prison . The presiding judge asked the prison authorities for explanations . They informed him of the number of medical examinations undergone by the applicant , gave details of them and produced copies of the relevant medical records .", "At about the same time , the applicant again requested the court to release him on health grounds . He also referred to his family situation , maintaining that his lengthy detention was putting a severe strain on his family . On DATE ORG dismissed the application .", "On DATE , on an appeal by the applicant , ORG ( Sąd Apelacyjny ) upheld ORG decision and held that his detention should continue in view of the reasonable suspicion that he had committed the offences in question and the fact that he had been detained on the ground of the risk that he would abscond . The court also found that the situation of the applicant ’s family , although difficult , was not a circumstance that could militate in favour of his release .", "On DATE the applicant ’s lawyer applied to ORG to have the detention order quashed and the applicant released under police supervision . He stressed that on DATE the applicant had again tried to commit suicide in prison , by attempting to hang himself ( see paragraphs CARDINAL - CARDINAL below ) . This event , taken together with his chronic depression , had been a clear warning that continuing detention could jeopardise his life . He further pointed out that the applicant had been redetained only because of his absence from hearings . That ground could not warrant his detention any longer because evidence against him had already been heard and keeping the applicant in detention did not serve the purpose of ensuring the proper conduct of the trial .", "On DATE ORG dismissed that application . It held that , according to a report from the prison authorities , the applicant ’s suicide attempt had been of an attention - seeking nature and that the original grounds for his detention were still valid . The relevant report , dated DATE , reads :", "“ Further to the [ Regional ] ORG ’s request regarding the accused , we confirm that PERSON , who remains at your disposal , ... at TIME on DATE , attempted suicide in order to attract attention to his case .", "On the basis of information from , and the conclusions of , the duty doctor , psychiatrist and psychologist , it was established that the prisoner suffered from personality disorders manifesting themselves as reactive depression . The result of the prisoner ’s action was a slight abrasion of the skin on his neck in the form of a stripe made by the rope after hanging ; no neurological changes were observed .", "The prisoner carried out this demonstration as he considers that the criminal proceedings are taking a very long time and because he is distancing himself from the charges laid against him .", "Despite his emotional problems , he is in control of the situation and is putting pressure on the [ prison authorities ] .", "By decision of the Governor , he did not receive disciplinary punishment for his behaviour . Psycho - corrective discussions [ were held with him ] , aimed at explaining the real threats to the prisoner ’s health and life arising from his behaviour .", "In a subsequent psychiatric consultation ( carried out after the suicide attempt ) a regression of the symptoms of reactive depression was noted .", "He continues to be held in a cell with others because of the possibility of his self - destructive behaviour arising from a subjective feeling of suffering . He is classed as a difficult prisoner and therefore remains under constant observation and under the control of the prison security and medical staff .", "[ Stamp and signature illegible ] ”", "On DATE the applicant ’s lawyer appealed against ORG decision , submitting that the applicant ’s mental health had significantly deteriorated and that he was constantly suffering from depression . He requested the court to appoint psychiatric and other medical experts to assess the applicant ’s state of health , instead of relying on the assessment made by the prison authorities . He also maintained that the length of the proceedings was inordinate and stressed that the applicant had already spent DATE and DATE in detention .", "On DATE ORG dismissed the appeal . The court considered that it was not necessary to call medical experts and that the applicant ’s detention should continue in order to ensure the proper conduct of the proceedings . Later , DATE and DATE , the applicant made CARDINAL further unsuccessful applications for release and lodged similarly ineffective appeals against decisions to keep him in detention .", "On DATE , DATE and DATE , CARDINAL , DATE and DATE , and CARDINAL , DATE , DATE and CARDINAL DATE ORG held hearings and heard evidence from witnesses . Certain witnesses , who had previously failed to appear , were brought to the court by the police .", "On DATE ORG convicted the applicant of fraud and forgery and sentenced him to DATE imprisonment and a fine of MONEY ( ORG ) . On DATE both the applicant and his lawyer filed a notice of appeal .", "On DATE the applicant complained to the Minister of ORG that the trial court had not prepared the statement of reasons for its judgment within the statutory time - limit of DATE . He submitted that the delay had already amounted to DATE .", "At DATE the applicant requested to be released , arguing that his prolonged detention had had very harmful effects on his health and on the well - being of his family . On DATE ORG dismissed his application . On DATE , on an appeal by the applicant , ORG upheld that decision and observed that his detention was warranted by the severity of the sentence imposed .", "On another unspecified date the applicant complained to the Minister of ORG about the length of the proceedings in his case , pointing out that ORG had failed to provide him with the statement of reasons for its judgment within the statutory time - limit . That had significantly prolonged the appellate proceedings . On DATE the Head of ORG , in reply to that complaint , informed him that it was likely that the statement of reasons for the judgment would exceed CARDINAL pages and that the failure to comply with the statutory time - limit was due to the fact that the judge rapporteur had been on leave .", "On DATE , at ORG request , the applicant was examined by forensic psychiatrists from the Collegium ORG of ORG in GPE . The relevant part of their report reads :", "“ ... As can be seen in the file , and in accordance with the findings of the medical experts , the defendant underwent observation in the psychiatric ward of ORG . In the course of the hospital observation , attempts at suicide and lengthy , vague losses of consciousness were observed . The comprehensive conclusions ... of the report by the psychiatric experts in ORG showed that the defendant exhibited personality disorders and a predisposition to situational reactions , which do not militate decisively against him being in prison , provided there is guaranteed outpatient psychiatric care .", "[ The applicant ] explained that he was still in the remand centre and felt very ill , he had a permanent headache located in the apex , radiating to the nape . He very often became breathless and had difficulty breathing , particularly at TIME . On those occasions he asked the officers for help and they took him to the medical ward . On most occasions the doctor prescribed PERSON [ diazepam ] , which did not relieve his suffering . He claimed that he continued to take ORG at doses of DATE at TIME and QUANTITY mg during DATE . This medicine ‘ organised him’ , as he said , and he could not function without it . He felt constantly tired , did not sleep at TIME and was annoyed by his continued stay in prison . He considered this preposterous , as he had already ‘ overserved’ any sentence he could be given . During a conversation with the defendant , it was observed that he had an abrasion of the epidermis at the base of the neck . When his shirt collar was opened , it was found to be a linear abrasion of the epidermis around the front section of the neck , corresponding to the furrows found on a hanging victim . The defendant explained that ... he had tried to hang himself with a sheet , but had been resuscitated . This was his second attempt at suicide and he could not explain why he behaved in this way . He maintained that he had moments when he felt as if his consciousness was interrupted and that at these times he tried to take his own life , mainly by hanging but also by taking drugs and slashing himself with a razor . He claimed that there was also an occasion when he left home after a family dispute and woke up DATE in a boarding house in Świnoujście . He did not understand how he came to be there or what had happened to him during DATE .", "The person under examination is currently making good verbal contact , is oriented , his mood is somewhat subdued , he is tense , irritable and experiences a strong sense of injustice . He states that he is being treated inappropriately . He receives some medicines which do not improve his state of mind and he considers that this treatment only ‘ subjects him to psychotropic ORG .", "After the psychiatric examination , the defendant was sent to the ORG department to undergo a specialist examination .", "The results of that examination are attached to the report .", "Report", "The examination of the defendant PERSON , male , DATE , and the analysis of the results of previous examinations and medical and psychological observations performed during hospitalisation lasting DATE show that his current mental state is the result of his personality disorders and predisposition to decompensation in difficult situations . These disorders are not psychotic in nature but further suicide attempts will prove to be a real threat to his health . For this reason , we also consider that if the legal proceedings require that the defendant spend a further period in prison , he should be sent to a hospital ward and be supervised by specialist staff . He should also be guaranteed access to a psychiatrist and a psychologist .", "Expert Expert", "PERSON Dr PERSON ”", "On DATE the applicant received the statement of the reasons for the judgment and , at some date thereafter , lodged an appeal . The case file was transferred to ORG on DATE .", "On DATE ORG quashed the conviction and ordered a retrial on the ground that the trial court had been incorrectly constituted and that there had been numerous breaches of procedural provisions . During the appellate hearing the applicant ’s lawyer had asked the court to quash the detention order , but without success .", "On DATE the case file was sent to ORG . ORG subsequently made a severance order and thereafter the applicant was tried separately from several other defendants .", "On DATE the applicant requested that the preventive measure imposed on him be lifted or varied . On DATE ORG gave a decision in which it stated , inter alia :", "“ ... At the present stage of the case , proper conduct of the proceedings can be ensured by imposing preventive measures other than detention . ... The ORG therefore quashes the detention order on condition that the applicant puts up bail of PLN MONEY within DATE from the date on which this decision is served on him . ... ”", "The applicant appealed against that decision and requested that the bail be reduced and set in the light of his financial circumstances or , alternatively , that the court secure proper conduct of the trial by ordering him to submit to police supervision .", "On DATE the trial court received a report from a psychiatric expert it had appointed . The expert found that the applicant was in a state of chronic depression accompanied by suicidal thoughts . He considered that the applicant was able to participate in hearings but that continuing detention could jeopardise his life because of the likelihood that he would attempt to commit suicide .", "On DATE ORG dismissed the applicant ’s appeal against the decision of CARDINAL DATE , holding that the sum set for bail was not excessive , given the cost of the damage resulting from the commission of the offences with which he had been charged and the serious nature of those offences . The court attached considerable importance to the fact that after the first order for his detention had been quashed in DATE , the applicant had absconded and had been redetained on that ground . Bail , the court added , was designed to secure his presence at the trial and to prevent him from committing any further acts aimed at obstructing the proper course of the proceedings . Having regard to all the circumstances of his case , bail had therefore been set at an appropriate level .", "Shortly afterwards , the applicant complained to the ORG ( PERSON ) that the overall length of his detention had now exceeded DATE . The complaint was referred to the President of ORG , who on DATE sent a letter to the applicant . The relevant part of that letter reads :", "“ ... You were indicted for fraud and forgery on DATE . The bill of indictment concerned CARDINAL co - defendants and evidence from CARDINAL witnesses was to be obtained . The proceedings were delayed because you had been in hiding until your subsequent detention in DATE . You have also made numerous applications for release . ... The delay in the proceedings between the date of the trial court ’s judgment and the date on which the case file was sent to ORG was justified by the size of your case file and the length of the statement of reasons for the judgment ( CARDINAL volumes and CARDINAL pages respectively ) . ... The statement of reasons was ready before DATE and was sent out on DATE because the judge rapporteur was on leave . The only delay occurred in respect of handling your application for release of DATE [ ; ] it was examined on CARDINAL DATE since from DATE to CARDINAL DATE there had been a public holiday . ... ”", "Meanwhile , the applicant had again applied to ORG to release him under police supervision or to reduce the bail set by the court on DATE . On DATE the court refused the application . The applicant ’s lawyer appealed against that decision and argued that in the light of the psychiatric report of CARDINAL DATE the applicant should be released because his life was in danger .", "On DATE ORG dismissed the appeal , pointing out that the danger to the applicant ’s life was “ not absolute ” because he could obtain psychiatric treatment in prison . The court considered that , given the applicant ’s behaviour after his release in DATE , his detention should continue in order to secure the proper course of the trial unless he put up bail of PLN CARDINAL .", "On DATE the applicant again requested ORG to reduce the amount of security or to release him under police supervision . He submitted that he did not have sufficient financial resources to pay such a substantial sum of money . On DATE the court dismissed his application as manifestly ill - founded . It observed that the applicant ’s arguments concerning the question of bail had been an “ unjustified dispute with the institutions of justice ” and that bail could be put up not only by the applicant himself but also by third parties .", "Later , the applicant requested ORG to release him so that he could provide the required security . On DATE the court dismissed this request , holding , inter alia :", "“ ... It is logical that [ the applicant ] should be released after bail is paid . The accused ’s request to reverse the sequence of events is against the rules of procedure and common sense and must therefore be dismissed . ... ”", "The retrial was to start on DATE but was postponed because CARDINAL of the applicant ’s co - defendants had meanwhile been detained in connection with other criminal proceedings against him .", "On DATE ORG quashed the detention order after the applicant ’s family had paid bail of PLN CARDINAL,CARDINAL to the court .", "The next CARDINAL hearings were listed for DATE and DATE but the trial was again postponed as another co - defendant was ill . Subsequent hearing dates were set for CARDINAL , DATE and DATE . ORG later listed hearings for the following dates in DATE : DATE , DATE , DATE , CARDINAL and DATE , CARDINAL , DATE and DATE , CARDINAL DATE , DATE , CARDINAL and DATE , and CARDINAL and DATE . On DATE the court gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment .", "He appealed on DATE . On DATE ORG varied the trial court ’s judgment and reduced the applicant ’s sentence to DATE imprisonment .", "Subsequently the applicant lodged a cassation appeal ( kasacja ) . On DATE ORG , having found that the applicant had complied with the relevant formal requirements for such appeals , forwarded his appeal to ORG ( Sąd Najwyższy ) . The proceedings in ORG are still pending .", "The applicant was held at FAC from DATE to CARDINAL DATE , with CARDINAL interruption : on DATE he was transferred to ORG where , until DATE , he underwent psychiatric observation ordered in other criminal proceedings against him .", "The medical register shows that the applicant was examined by a doctor shortly after being detained . On DATE the applicant asked to be examined by a psychiatrist . The examination took place on DATE . The applicant was diagnosed as suffering from reactio situatione ( situational reaction ) . He had been examined by or had consulted a prison doctor on CARDINAL previous occasions .", "NORP In DATE the applicant was examined by prison doctors CARDINAL times . It was recorded that he was suffering from chronic insomnia and lack of appetite and , subsequently , from recurring headaches , dizziness and difficulty in concentrating .", "On DATE the applicant was examined by a psychiatrist . He was diagnosed as suffering from personality disorder and depressive reaction . During DATE , on CARDINAL further occasions , he consulted or was examined by doctors in the prison outpatient ward . He complained of insomnia and requested a change of medicine . On DATE a doctor recommended that he be examined by a psychiatrist .", "On DATE the applicant started to complain about darkness in front of his eyes and headaches .", "On DATE the applicant attempted suicide by taking an overdose . The doctor on duty made the following entry :", "“ Patient unconscious , no verbal contact . ... From the report given by [ his cell - mates ] it transpires that DATE he took TIME dose of medication ... nobody saw him taking any other medication .", "Diagnosis : intoxicatio medicamentosa acuta per os susp . [ suspected acute drug poisoning by mouth ] .", "Medical recommendations : hospital observation and urgent psychiatric treatment . ”", "The applicant was admitted to the prison hospital and stayed there from CARDINAL to CARDINAL DATE , the diagnosis being “ status post intoxicationem medicamentosam ” . He underwent several medical tests ( blood - cell morphology , toxicological examination of urine , electrocardiography ) .", "On DATE the applicant was examined by a psychiatrist and diagnosed as suffering from neurotic disorder .", "From CARDINAL DATE ( DATE of his return from ORG ) to DATE the applicant consulted the prison outpatient doctors on CARDINAL occasions . He complained mainly about difficulty in getting to sleep and recurring headaches lasting DATE but also about cold and skin ailments . In DATE he asked several times for an appointment with a psychiatrist . He was examined by a psychiatrist on DATE and diagnosed as having neurotic disorder .", "In the meantime , on DATE , the prison doctor on duty had asked for a further appointment with a psychiatrist for the applicant . The psychiatrist examined the applicant on DATE and confirmed his previous diagnosis . The register records that the applicant complained about dizziness and sleep disorder .", "DATE . On DATE the doctor on duty requested a follow - up appointment with a psychiatrist for the applicant . On CARDINAL and DATE the doctor noted that the applicant had not reported back to him . On DATE the applicant was given an unspecified medicine .", "On DATE the applicant attempted to commit suicide by hanging himself . On DATE doctors made CARDINAL notes in the medical register . The relevant part of the first note , written by the doctor on duty , reads :", "“ At TIME he made a conspicuous attempt to commit suicide by hanging himself on a sanitary appliance on the wall . Blood pressure CARDINAL/CARDINAL ... In the left nostril was a small amount of foaming blood . Abrasions of the epidermis were found on the neck consistent with the scars of a hanging victim . ... He does not want to communicate orally . ...", "Diagnosis : conspicuous attempt to commit suicide by hanging .", "Medical recommendations : psychiatric test ... ”", "The second note , made by a specialist in internal medicine , reads as follows :", "“ General condition good . ... Able to communicate logically . He stated that this had not been his first attempt at suicide .", "Diagnosis : condition following attempted suicide .", "Medical recommendations : psychiatric test . Admission to hospital for treatment not required . ”", "On DATE the applicant was examined by a psychiatrist , who made the following report :", "“ Good verbal communication , emotions satisfactory . ... He was in the psychiatric ward of ORG ... to DATE . Attempted suicide : ‘ I ca n’t take any more.’ He is anxious . Disturbed sleep , loss of appetite , nausea , vomiting . The case has lasted DATE without a judgment , he had no previous convictions . He was frightened by his actions : ‘ I do n’t know what came over me.’", "Diagnosis : condition following attempted suicide by hanging . Situational depressive reaction . ”", "On DATE the applicant was again examined by a psychiatrist . The doctor ’s note reads :", "“ Good contact . Full orientation , balanced mood . No psychotic symptoms . Complains : ‘ I feel unwell , I have had enough of this , I do not sleep well , I will hang myself.’", "Diagnosis : personality disorder ; auto - aggressive reaction . ”", "In DATE the applicant was examined by doctors CARDINAL times . CARDINAL of those examinations were carried out by psychiatrists . The relevant part of a medical certificate issued after the first examination reads :", "“ GPE , DATE", "Medical Certificate", "As to the state of health of the prisoner", "Prisoner ’s complaints , previous illnesses and operations : He is currently submitting the following complaint : difficulty concentrating , psychomotor agitation , feelings of inner tension , recurring pain in the epigastric region . Medical history shows frequent attempts at suicide , including by hanging and drug overdose . He is under regular psychiatric supervision . ...", "Psychiatric consultation DATE . Situational reaction with depressive features . Fit to take part in court proceedings . ... ”", "After the second examination , carried out on DATE , a doctor noted :", "“ Good contact , full orientation , dysphoric mood . Complaints – tension ... sleep disorder , difficulty in concentrating .", "Diagnosis : neurotic disorder . ”", "From DATE to DATE the applicant , either at his own request or at the request of prison doctors , was examined by psychiatrists at least once DATE . Apart from that , he received treatment for other ailments . As regards the applicant ’s mental state , it appears from the medical register that he repeatedly complained of depression , sleep disturbances , tension , difficulty in concentrating , irritation and lack of improvement of his condition .", "In the period from DATE to DATE the applicant was examined by doctors on CARDINAL occasions ; CARDINAL examinations were carried out by psychiatrists .", "At the material time the rules governing detention on remand were contained in LAW of the Law of DATE – Code of Criminal Procedure ( Kodeks postępowania karnego ) – entitled “ Preventive measures ” ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE .", "DATE . The Code listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .", "Article CARDINAL set out the general grounds justifying imposition of the preventive measures . This provision read :", "“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”", "Article CARDINAL § CARDINAL defined grounds for detention on remand . The relevant part of this provision , in the version applicable until DATE , provided :", "“ CARDINAL . Detention on remand may be imposed if :", "( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when he has no fixed residence [ in GPE ] or his identity can not be established ; or", "( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ; or", "( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or", "( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society .", "... ”", "On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL § CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :", "“ ( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent abode [ in GPE ] ; or", "( CARDINAL ) [ as it stood before DATE ] . ”", "Paragraph CARDINAL of Article CARDINAL provided :", "“ If an accused has been charged with a serious offence or an intentional offence [ for the commission of which he may be ] liable to a sentence of a statutory maximum of CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE imprisonment , the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . ”", "The Code set out the margin of discretion in maintaining a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate .", "Article CARDINAL § CARDINAL provided :", "“ A preventive measure [ including detention on remand ] shall be immediately lifted or varied if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one . ”", "Article CARDINAL stated :", "“ Detention on remand shall be imposed only when it is mandatory ; this measure shall not be imposed if bail or police supervision , or both of those measures , are considered adequate . ”", "The provisions for “ mandatory detention ” ( for instance , detention pending an appeal against a sentence of imprisonment exceeding DATE ) were repealed on DATE by the PERSON of DATE on LAW to LAW and Other Criminal Statutes .", "Finally , Article CARDINAL stipulated :", "“ If there are no special reasons to the contrary , detention on remand should be lifted , in particular , if :", "( CARDINAL ) it may seriously jeopardise the life or health of the accused ; or", "( CARDINAL ) it would entail excessively burdensome effects for the accused or his family . ”", "Under NORP law “ release on bail ” does not mean release on condition that a detainee undertakes to pay a specified sum to the court if he fails to appear before it , but release on condition that the required security is paid to the court by either the detainee himself or sureties before the detainee is released .", "DATE Code dealt with medical treatment of an accused during detention on remand . It provided the following :", "“ If the state of health of an accused requires treatment in a medical establishment , he can not be further detained except in such an establishment . ”", "Article CARDINAL of the Code of Criminal Procedure provided that an accused could at any time lodge an application for release . It read :", "“ An accused may at any time apply to have a preventive measure lifted or varied .", "Such an application shall be decided by the prosecutor or , after the bill of indictment has been lodged , by the court competent to deal with the case , within a period not exceeding DATE . ”", "Article CARDINAL § CARDINAL of the Code laid down a time - limit for preparing the statement of reasons for the judgment of the trial court where an appeal had been brought . The relevant provision read :", "“ The statement of the reasons for the judgment shall be prepared within DATE from the date on which a notice of appeal has been lodged ; in a complex case , when it is impossible to prepare it within the prescribed time , the president of the court may extend that time for a specified period ... ”", "The Code set out CARDINAL principal appellate remedies , called “ appellate measures ” : an appeal , which , under Articles CARDINAL et seq . , could be brought solely against judgments and an interlocutory appeal which , under Articles CARDINAL et seq . , could be brought against decisions other than judgments and against orders for preventive measures . There was ( and still is ) no specific provision expressly providing for remedies against inactivity on the part of the judiciary in the course of criminal proceedings ." ]

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

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

[]

[ "3" ]

[]

[]

[ "The applicant is a GPE national , born in DATE and , as far as the ORG is aware , living in GPE ( GPE ) . He is represented before the ORG by Ms PERSON , a lawyer practising in GPE ( GPE ) , and PERSON , a lawyer practising in GPE .", "A.", "Background to the case", "On DATE an ORG car belonging to CARDINAL PERSON was searched by the police . Inside it were found a sum of money , mostly in foreign currency , to an amount equivalent to MONEY NLG ( GPE guilders ) , a baseball cap , a forged driving license bearing the applicant 's picture but another person 's name , an unopened letter addressed to the applicant , some keys and a mobile telephone .", "In DATE , the exact date is not known , an informant whose identity was never disclosed stated to a police officer called PERSON , head of the GPE section of ORG ( NORP Criminele Inlichtingen ORG , “ RCID ” ) , that the applicant was using a house located at FAC in GPE to store firearms . A consignment of weapons had recently been delivered there by a CARDINAL - wheel - drive off - road vehicle in which the applicant had been a passenger and another person the driver .", "The Newtonstraat house was inhabited by CARDINAL PERSON , a close friend of the applicant from childhood ; the applicant had at CARDINAL time lived there too . At another period of his life he had lived in the house next door and his mother still lived there .", "On DATE the police raided the Newtonstraat house . According to the official report of the event later drawn up , they found QUANTITY of cocaine , CARDINAL sub - machine guns , a gun silencer , CARDINAL bayonets , QUANTITY live hand grenades , QUANTITY of NORP high explosive , CARDINAL bolt - action rifles , CARDINAL automatic pistols , CARDINAL revolvers , CARDINAL sawn - off shotguns and CARDINAL rounds of live ammunition . These items were packaged in sports bags and in dustbin liners wrapped with adhesive tape . A second mobile telephone was also found .", "It appears from a police report dated DATE that CARDINAL of the keys found in the Audi car fitted the door of the Newtonstraat house . Another fitted the door of the applicant 's residence .", "The applicant was arrested on DATE in an GPE coffee shop . According to the official police report later drawn up of this event , he was carrying a pistol loaded with CARDINAL rounds of live ammunition .", "In the case against PERSON , which had begun before the applicant 's case , a hearing was held before ORG on DATE . Police Officer PERSON was heard as a witness with regard to the character and reliability of the anonymous informant . He stated that the informant was considered very reliable , having provided reliable information in the past , but refused to give any other information at DATE not even the precise date on which the weapons were delivered – so as not to place the informant 's life in danger . The date of delivery was given as “ after DATE ” . The official record of this hearing , including Police Officer PERSON 's statement , made its way into the file of the applicant 's case .", "On DATE CARDINAL PERSON 's father was questioned by the NORP police ( GPE ) . He stated that he had been tricked by his son into unwittingly overseeing the transport by air of QUANTITY of cocaine from GPE to GPE , from there to GPE and on to GPE . The cocaine had been intercepted at GPE ( GPE ) FAC on DATE .", "On DATE police officers drew up a telephone metering report from which it appeared that the mobile telephone found in the ORG car had been used on several occasions to call the telephone found in the Newtonstraat house , most recently shortly before the Audi car was searched . Other information , such as the mention ( in an address list belonging to another person ) of the applicant 's first name next to the number of the telephone found in the ORG car and a statement of a ( named ) informant that the applicant had used that car , suggested that the telephone found in the car had been used by the applicant .", "Criminal proceedings against the applicant", "Proceedings in ORG", "On DATE , DATE following his arrest , the applicant was taken into police custody ( inverzekeringstelling ) on charges of taking part in a criminal organisation , possession of the QUANTITY of cocaine and the arms , ammunition and high explosive found in the ORG , and possession of the pistol and ammunition he had been carrying at the time of his arrest .", "On DATE the Investigating Judge ( rechter - commissaris ) ordered the applicant taken into initial detention on remand ( inbewaringstelling ) .", "On DATE , after a hearing in camera , ORG ( Arrondissementsrechtbank ) of GPE ordered the applicant taken into extended detention on remand ( gevangenhouding ) .", "The applicant appealed against the decision of ORG . On DATE , after a hearing in camera , ORG of PERSON ( ORG ) of GPE overturned the decision of ORG and ordered the applicant 's release .", "The trial hearing opened on DATE . The applicant denied all charges .", "The occupant of ORG , PERSON , was heard as a witness . He stated that it was incorrect that the applicant had delivered weapons to his house using a ORG Land Cruiser . The applicant had nothing to do with the weapons . CARDINAL other individuals , whom he refused to name ( being himself accused in connection with these dealings ) , had delivered the weapons , using a delivery van ( bestelbus ) . The applicant had visited the house to retrieve some diving equipment , which he had left there , before going on holiday ; it was possible that he might have touched some other items in the process , leaving his fingerprints .", "The owner of the ORG car , PERSON , was also heard as a witness . He stated that his wife owned a ORG Land Cruiser , registered in her name since DATE , and denied that it had been lent to anyone after that date . He denied knowing the applicant and denied having seen him in the aeroplane on the way to GPE .", "At the request of ORG drew up a separate record of the statements of PERSON and PERSON to support a possible later prosecution on perjury charges . The ORG has not been informed of any further proceedings in this matter .", "Also at the request of ORG ordered the applicant arrested in court and detained on remand . The reasons given were that it appeared from information which had come to light since DATE , when ORG ordered his release , that there was a prima facie case against the applicant , that he was likely to abscond and that he might reoffend .", "ORG then referred the case back to the Investigating Judge in order to have the anonymous informant heard as a witness .", "On DATE ORG lodged an application to the Investigating Judge to interrogate a threatened witness and keep his / her identity concealed . A copy of this document , which refers in general terms to ORG – CARDINALf of LAW ( PERSON ) but does not give any indication concerning the witness him / herself , was made available to the defence .", "On DATE the Investigating Judge , Judge PERSON , heard the applicant and ORG before coming to a decision . The applicant 's counsel was invited to be heard but did not turn up . The applicant himself submitted a handwritten statement . He denied that there was any threat to the witness , stating that he had not threatened anyone and that he had never been convicted of any crimes involving violence .", "The same day Investigating Judge PERSON ordered that the witness 's identity remain concealed . Her finding that the witness was in fact threatened was phrased as follows :", "“ Considering that in view of the statements made by the witness to [ the police ] , as related to the Investigating Judge by [ Police Officer ] ORG , and the statement made by the witness to the Investigating Judge , as related in my ... official record of my findings ( proces - verbaal van bevindingen ) , it is not unlikely that the witness has reason to fear for the life , the health or the safety of the witness or his / her immediate surroundings ; ”", "Investigating Judge PERSON 's official record of her findings , referred to in her decision , includes the following :", "“ I informed this person of the matters on which I wished to interrogate him / her and asked him / her why he / she wished to remain anonymous .", "The person answered that he / she has heard stories about the accused [ i.e. the applicant ] and his circle of friends , from which it would appear that the accused and his circle of friends are involved in shady business ( duistere praktijken ) . The accused reportedly moves in criminal circles . These things which the person has heard , in combination with what he / she has seen and will make a statement about , namely persons including the accused carrying a large number of large firearms , puts the person in great fear . In addition , the person also gave an explanation of his / her situation , in which he / she feels vulnerable . The person is afraid of a drastic interference with his / her personal life if his / her identity becomes known to the accused and his circle of friends .", "The person informed me that he / she definitely did not want to testify under his / her own name .", "I , Investigating Judge , have discussed with the person whether he / she has a criminal record ( strafrechtelijke antecedenten ) and whether there was any relationship between the person and the accused , and also the person 's reputation and family situation .", "The person made a reliable and balanced impression on me , Investigating Judge . When asked , the registrar expressed the same opinion .", "After my conversation with the above - mentioned person [ police officer ] ORG ... informed me of the above - mentioned person 's situation . What I was told by PERSON corresponds to what the person told me him / herself and confirmed the vulnerability of the person 's situation . ”", "The applicant 's counsel appealed against the Investigating Judge 's decision on DATE , as did the applicant himself DATE .", "Also on DATE Investigating Judge PERSON wrote to the applicant 's counsel informing him of her intention to interrogate the anonymous witness on DATE . The actual interrogation would be held in a room in which the registrar and Police Officer PERSON would be present in addition to the witness and herself ; Police Officer PERSON would be able to help her decide which questions to prevent in the interest of the witness 's safety .", "On DATE the applicant 's counsel wrote to the Investigating Judge objecting against the presence of Police Officer PERSON in the same room as the anonymous witness and asked her not to allow any other person into the presence of the witness , the registrar and herself .", "A CARDINAL - judge chamber of ORG held a hearing in camera on DATE . The applicant was present in person , assisted by his counsel . He asked for an adjournment , as he had only been informed of the date of the hearing DATE and had had no time to discuss matters with his counsel . This was denied on the ground that the applicant had had the time since lodging his appeal , DATE before , to consult his counsel ; the hearing then proceeded .", "The same day ORG dismissed the appeal . Its reasoning included the following :", "“ Counsel argued in camera that , contrary to decisions in similar cases of ORG and ORG of GPE , not only the reasonableness , but also the merits of the decision of the Investigating Judge should be examined ( niet alleen marginaal , doch ook inhoudelijk dient te worden getoetst ) .", "In the present case ORG does not consider it necessary to go into the merits of the decision of the Investigating Judge . In the opinion of ORG the Investigating Judge has sufficiently checked the reasons for granting the witness anonymity . ORG considers in this regard that it appears from ORG official report of her findings that the witness 's situation is one of vulnerability , a circumstance for which ORG has accounted by obtaining information from [ Police Officer ] ORG . Counsel 's request will therefore be refused .", "ORG considers it credible ( aannemelijk ) on the basis of ORG official report of her findings , the content of the statement of ORG made at the public hearing of ORG of GPE on DATE , and the nature and importance of the crimes with which the accused is charged , that the witness has reason to fear for the life , health and safety of the witness him / herself and his / her direct surroundings .", "The witness has therefore rightly been granted the status of threatened witness , which means that the appeal against the decision of the Investigating Judge must be dismissed . ”", "The interrogation of the anonymous witness took place DATE . The witness was sworn in . It appears from ORG official record of the occasion that , in addition to ORG , the registrar , a police officer called GPE ( operating the sound link ) and another police officer , called ORG ( as listener - in , toehoorder ) , were present in the same room as the witness . ORG , the applicant 's counsel , a police officer operating the sound link and the Procurator General of ORG as listener - in were in another room . The sound link involved voice distortion . The witness 's answers were first heard by the Investigating Judge with the sound link switched off , then , if the Investigating Judge found that the answer did not jeopardise the witness 's safety , repeated through the sound link so that the persons in the other room could hear .", "The Investigating Judge 's official record includes the following :", "“ I , Investigating Judge , have spoken with the witness both within the framework of the proceedings under LAW § CARDINAL of LAW and prior to the interrogation , the registrar , PERSON , being present . On these occasions the reasons why the witness wished to make a statement were discussed . On the first occasion the witness appeared worried about the risk of his / heir identity being disclosed . Prior to the interrogation the witness appeared reassured about the measures taken to prevent this from happening .", "The witness made on us , Investigating Judge and registrar , a direct , frank and sober impression .", "In view of the witness 's answers during the CARDINAL above - mentioned conversations , the way the witness behaved and the way the subsequent interrogation went , we , Investigating Judge and PERSON , come to the conclusion that the witness gives us an impression of reliability . ”", "The applicant 's counsel had previously submitted CARDINAL questions by fax . ORG official record lists the questions which were not allowed , giving the reasons why not ( mostly irrelevance or concern for the witness 's safety ) .", "The witness described the applicant as “ a tall man , with fair , slightly curly hair , thin , DATE , normal hair , slightly balding above the temples ( een beetje inhammen ) , no spectacles or moustache ” . He / she had positively recognised the applicant when he was unloading weapons wrapped in dustbin liners , sports bags and a heavy box . The question whether the witness knew the applicant , put by the prosecution , was not allowed in the interests of ensuring the witness 's safety . The question , put by the defence , on what DATE the witness saw the applicant unload the weapons was not allowed either , for the same reason . The interrogation took from TIME until TIME During the interrogation the witness made an outline drawing of the vehicle used to transport the weapons , which was transmitted by fax to the room where the applicant 's counsel and the prosecutor were . The vehicle was a delivery van with an outline apparently different from that of a ORG Land Cruiser : it had a sloping front instead of a protruding bonnet , and no spare wheel at the back .", "On DATE PERSON 's counsel wrote to the applicant 's counsel stating that the anonymous witness , when interrogated by the police in the presence of the Procurator General and ORG in addition to himself , had specified the date on which the weapons were delivered as “ DATE ] ” . He / she had given this information after it had been pointed out that , according to the calendar , “ DATE ” in DATE was from CARDINAL until DATE .", "On DATE the applicant 's counsel wrote to ORG asking for further witnesses to be brought forward . These included the wife of PERSON , who was the owner of the ORG Land Cruiser allegedly used to transport the weapons , and Investigating Judge PERSON . The applicant 's counsel made it clear that it was intended to determine with greater precision the date on which the delivery had taken place so as to establish the applicant 's alibi .", "The hearing before ORG resumed on DATE . Investigating Judge PERSON was heard as a witness . She persisted in her refusal to mention the date on which the weapons were stated by the anonymous witness to have been delivered ( LAW Code of Criminal Procedure – Wetboek van Strafvordering ) . This was accepted by ORG on the ground that it was in the nature of things that only the Investigating Judge could decide whether such a refusal was necessary .", "PERSON was heard as a witness about the vehicle used for the delivery , which he stated to have been a ORG Land Cruiser . It had come into his wife 's possession no earlier than DATE .", "Police Officer PERSON was heard as a witness . He stated that he was aware that the anonymous witness had stated before the Investigating Judge that the weapons were delivered at DATE , but that the anonymous witness was mistaken as to the date . The President of ORG blocked a question relating to DATE on which the weapons were delivered . The registration number of the vehicle used was given by the anonymous witness to an unidentified RCID police officer , who gave it to Police Officer PERSON ; Police Officer PERSON refused to say who this police officer was , and was dispensed from so doing by the President of ORG .", "ORG viewed a video tape compiled from several tapes found in the house of PERSON . These showed a group of persons on various locations in the GPE , in the south of GPE and on a trip to GPE to attend the football world championship . Weapons were occasionally shown . Members of the group were frequently shown brandishing a pistol . The applicant appeared in some of the scenes wearing a baseball cap ; he was shown in the company of PERSON on the trip to GPE , and PERSON was at CARDINAL point shown laughing at a remark made by the applicant .", "The applicant stated , inter alia , that he had been in GPE at DATE , but had returned to the GPE by CARDINAL or DATE . He further admitted that he had been carrying a pistol and ammunition when he was arrested on DATE . However , he denied having had anything to do with the delivery of weapons at the Newtonstraat house . He had left some diving equipment with PERSON , which he had gone to pick up in DATE before going on holiday ; this explained the presence of his fingerprints on dustbin liners . He denied knowing PERSON .", "Witnesses were heard about the ORG Land Cruiser .", "Addressing ORG in the applicant 's defence , the applicant 's counsel stated that the only real indication that the anonymous witness was reliable was the statement of Police Officer PERSON and the subjective assessment of the Investigating Judge . He also protested against the refusal to allow the anonymous witness to give the date on which the weapons were delivered , which made it impossible to verify the applicants 's alibi . Much was made of the applicant 's alibi ; of the ORG Land Cruiser , which in counsel 's submission could not have been the vehicle used for delivering the weapons ; and of the description of the appearance of the man identified by the anonymous witness as the applicant – the description , counsel said , did not fit because the applicant was in fact quite bald . It was also denied that the applicant had anything to do with the cocaine or with the large sum of money found in the Audi .", "On DATE ORG gave judgment finding the applicant guilty of all the crimes charged . It sentenced him to DATE imprisonment . The pistol and ammunition found in his possession when he was arrested was withdrawn from circulation ( onttrokken aan het verkeer ) and the money found in the Audi car was declared forfeit ( verbeurd ) .", "Proceedings in ORG", "The applicant appealed to ORG of GPE .", "On DATE Dr PERSON , professor of experimental psychology ( psychologische functieleer ) at the university of GPE , transmitted to the applicant 's counsel a report which he had prepared after studying the video tape . He came to the conclusion that the interactions between the applicant and PERSON , as recorded , suggested that they might have known each other by sight ; however , it was also possible that they might have had no lasting memory of each other as the applicant claimed .", "The hearing of ORG opened on DATE . The used - car dealer who had sold the ORG Land Cruiser to PERSON 's wife was heard as a witness : he gave a date for its sale ( DATE ) . The applicant again denied having known PERSON before the trial . He also denied having had anything to do with the delivery of the weapons and the cocaine : on DATE he had visited PERSON 's house in the Newtonstraat to retrieve his diving equipment , after which he had gone on holiday . Police Officer PERSON , heard as a witness , confirmed the statement he had made earlier . When the defence protested against the absence from the case - file of the fingerprint report of the ORG Land Cruiser , the Procurator General stated that no usable fingerprints had been found . Parts of the compilation video tape were shown in open court . The defence also asked for inter alios Investigating Judge PERSON to be heard as a witness . ORG so ordered , adjourning the hearing until DATE .", "ORG ordered the applicant 's release , overturning the decision of ORG of DATE , on the ground that the new information relied on by ORG was not such as to justify the second order for his detention on remand .", "The hearing , having been adjourned , resumed on DATE . Investigating Judge PERSON did not appear . An ORG explosives expert was heard as a technical witness . A police officer , who had been present when the cocaine and the weapons were seized at the Newtonstraat house on DATE , showed some of the dustbin liners . These , according to the official record of the hearing as dictated by the President of ORG , were made of grey plastic . CARDINAL of them had borne the applicant 's fingerprints . Some still bore traces of adhesive tape . The police expert stated that the dustbin liners had all been wrapped around firearms , and that all objects that might have carried fingerprints had been checked for them . Diving equipment had also been found .", "The hearing was continued on DATE . Investigating Judge PERSON gave evidence . Her statement , as taken down in the official record of the hearing , included the following :", "“ You ask me how I came to the finding that this anonymous witness was reliable , as I indicated in the official record of the interrogation on DATE .", "I spoke with the witness at some length . The way in which the witness reacted showed integrity . I asked some control questions to check reliability .", "I noted during the interrogation that there is a certain amount of discrepancy between a delivery van and an “ all - terrain vehicle ” but this has not caused me to doubt the reliability of the witness . After all , I do not know in what terms a witness describes things .", "...", "I reply as follows to questions put by counsel for the accused :", "At the beginning of the interrogation session the witness did not know exactly when the delivery had taken place . DATE he / she was able to indicate that it had been during the period from DATE until DATE . On DATE the interrogations took place first in the case of the co - accused PERSON and then in the case of the present accused [ i.e. the applicant ] . I can not now remember exactly all the differences in nuance between the CARDINAL interrogations . Later that day the witness remembered a number of things more distinctly .", "Things happened the way I described them in the official record . I have tried to take everything down with as much precision as possible .", "...", "The witness was in my opinion reasonably positive on the date of the delivery . I can not remember having heard the date . The date has not been taken down in my handwritten notes ( klad ) .", "The reliability of the witness was assessed before the beginning of the interrogation .", "You now ask me why I stopped the question of [ the applicant 's counsel ] as to the date of the delivery for reasons of protecting the source . I decline to answer that question .", "... ”", "In their final address , counsel for the applicant referred in general terms to all the submissions made in the course of the first - instance proceedings . More specifically , they contested the veracity and accuracy of the statements made by the anonymous witness to the police and before the Investigating Judge . Reference was made to what the defence argued were inconsistencies , such as that between the vehicle described by the anonymous witness as a delivery van and the ORG Land Cruiser identified as the vehicle used , and that between the physical appearance of the applicant as described by the anonymous witness and the applicant 's actual physical appearance . Inconsistencies such as these ought , in the submission of the defence , to have inspired the Investigating Judge to greater caution when expressing herself on the subject of the witness 's reliability . Moreover , one of a set of photographs taken in the Newtonstraat house showed a gun - shaped object wrapped in blue dustbin liners – the grey ones shown in open court were not shown in the photographs at all . ORG was invited to express itself on these points . The defence also protested against the decision of the Investigating Judge to block certain questions , for example , that concerning DATE on which the anonymous witness had allegedly witnessed the events in question , which prevented the applicant from establishing his alibi .", "Although admittedly the applicant 's fingerprints had been found on some of the dustbin liners , they were , in the submission of the defence , capable of another explanation than the applicant 's involvement in the crimes charged : the applicant and PERSON were friends from childhood ; the applicant had lived in the same house with PERSON , his mother lived next door ; and he was still a frequent visitor there , so that his fingerprints were to be found all over the place ; the applicant had at some point had to shift some bags to get at some diving equipment ; the weapons could have been repackaged in different dustbin liners DATE and DATE .", "It was denied that the applicant had had anything to do with the items found in the ORG car on DATE . The letters addressed to the applicant had been unopened and had not yet been seen by the applicant . The mobile telephone found in the car was not traceable to the applicant : it had been used by PERSON .", "Finally , the video showing both PERSON and the applicant did not admit of the conclusion that these CARDINAL knew each other at all well .", "ORG gave judgment on DATE . It overturned the judgment of ORG on the formal ground that the defence had wrongly been prevented from putting any questions to Investigating Judge PERSON . It then found the applicant guilty as charged . The evidence relied on included , inter alia , the statement of the anonymous witness ; the findings of Investigating Judge PERSON as to the witness 's reliability ; the statement made on DATE by Police Officer PERSON ; the applicant 's fingerprints on the dustbin liners ; the fact that keys found in the Audi car fitted the doors of both the Newtonstraat house and the applicant 's residence ; metering reports from which it appeared that the mobile telephone had been used to make a call to the Newtonstraat house ; and the official police reports from which it appeared that the mobile telephone in question had been used by the applicant . The applicant 's statement that he did not know PERSON was dismissed as a transparent lie , in view of the video tape which showed PERSON laughing at a remark made by the applicant , and as such was considered corroborative of his guilt .", "With regard to the reliability of the anonymous witness , ORG considerations included the following :", "“ Counsel for the accused has argued that [ Investigating Judge PERSON ] , on the occasion of the interrogation of the anonymous witness , has insufficiently discharged her duty as laid down by Article PERSON of LAW to check the reliability of the threatened witness interrogated by her , so that this statement can not be used in evidence that the accused has committed the acts charged DATE , CARDINAL and DATE .", "ORG does not share this opinion of counsel , in view of what the Investigating Judge has recorded in her official record of the interrogation of CARDINAL DATE and the statement she made at the appeal hearing on DATE .", "In so far as counsel may have meant to argue that ORG is competent to judge whether the anonymous witness was properly granted the status of threatened witness , this argument must be rejected . In accordance with the procedure provided for in ORG and following of LAW the anonymous witness was considered to be a threatened witness and interrogated . Any renewed investigation by the trial court in light of the preconditions for granting the status of threatened witness is contrary to the procedure laid down by law and the closed system of legal remedies .", "ORG finds that the statement of the anonymous / threatened witness , which does not support the conviction to a decisive extent ( in overwegende mate ) and which ORG has used with due caution , is reliable and credible . The information of the witness as rendered by the [ police ] only differs on nonessential details from the statement made by the witness on oath DATE before the Investigating Judge , on which occasion the witness affirmed the accuracy of the statement made before the [ police ] . On that occasion also , the witness was interrogated by counsel for the accused . The statement is detailed and consistent and in accordance with what was found , based on the information supplied , in the house situated at Newtonstraat no . CARDINAL in GPE . ORG bases this finding also on the statements of ORG referred to [ above ] . This finding is not affected by the fact that the anonymous witness was dispensed from answering certain questions put by the defence , nor by the fact that the Investigating Judge , when heard as a witness , did not answer certain questions . The failure to answer these questions was , after all , legally permissible ( rechtens geoorloofd ) in each case and connected with , in particular , ensuring that the identity of the threatened witness was kept concealed .", "In so far as , during the interrogation before the Investigating Judge on CARDINAL DATE , the threatened witness did not answer certain questions , ORG finds that the answers to the questions concerned could disclose the identity of the threatened witness . The Investigating Judge therefore acted properly in blocking these questions .", "In so far as the witness [ Investigating Judge PERSON ] failed to answer certain questions at the hearing before ORG on DATE , she stated her reasons for so doing and relied on her right to excuse herself from so doing . The defence has argued that she did not have such a right to excuse herself , but wrongly so . After all , the Investigating Judge has a right to excuse herself from answering questions under Article CARDINALa , taken together with LAW of LAW . It is in principle for the person claiming such a right to decide whether or not to excuse herself in this respect . From the nature of the questions in respect of which this witness excused herself it appears incontrovertibly that the questions relate to the subject matter – the identity of the threatened witness – in relation to which the right to excuse herself from answering was provided for . ORG is of the opinion that the Investigating Judge , when appearing as a witness at the hearing of DATE , properly relied on her right to excuse herself .", "In so far as the Investigating Judge , at the interrogation of the threatened witness , blocked certain questions because the answers were irrelevant to the case , ORG finds that these questions were in fact irrelevant to the case in which the witness was being interrogated . The Investigating Judge therefore acted properly in blocking these questions .", "...", "ORG further finds that the statement of the anonymous / threatened witness may be used as evidence that the accused has committed the acts charged DATE , CARDINAL and DATE , since it concerns the statement of a witness with respect to whom a court has ordered that on the occasion of his / her interrogation his / her identity shall remain concealed and the witness has been interrogated as such by the Investigating Judge in the way provided for by ORG CARDINALc – CARDINALf of LAW , the facts charged and held proven concerning crimes as referred to in LAW § CARDINAL of the Code of Criminal Procedure which , given their nature and the organised context in which they were committed , constitute a serious violation of the legal order . ... ”", "ORG sentenced the applicant to , inter alia , a term of imprisonment of DATE and DATE , withdrew the pistol and ammunition found in the applicant 's possession when he was arrested from circulation and declared the money found in the Audi car forfeit . It did not , however , order the applicant arrested and detained there and then .", "Proceedings in ORG", "The applicant lodged an appeal on points of law to ORG ( PERSON ) , submitting an extensive statement of grounds of appeal .", "ORG gave judgment on DATE . It dismissed the appeal in its entirety . Its reasoning , in so far as relevant to the case before ORG , was as follows .", "In response to a complaint that ORG had failed itself to evaluate the alleged risk to the anonymous witness , ORG referred to the Explanatory Memorandum ( PERSON ) to the PERSON enacting the relevant provisions of LAW ( see below ) , from which it appeared that it had been the intention of the legislature to remove this responsibility from the trial court ; ORG had therefore properly refused to go into this question anew . It was noted obiter dictum that no circumstances were apparent in the present case from which it would follow that the fairness of the proceedings had been adversely affected .", "In response to a complaint that the defence had had insufficient opportunity adequately to question the witness and assess his / her reliability , it was noted that not only the defence but also ORG had been in a different room when the witness was interrogated ; that the Investigating Judge had based the interrogation on , amongst other things , a list of questions submitted beforehand by the defence ; that the applicant 's counsel had asked additional questions and that questions had been blocked only in order to ensure the anonymity of the witness or because of irrelevance ; and that the witness was apparently ( kennelijk ) not a police officer .", "In response to a complaint that the applicant 's conviction was based “ to a decisive extent ” on the results of the interrogation of the anonymous witness , ORG held that in view of the alternative evidence this was not the case .", "In response to a complaint that the Investigating Judge had wrongly blocked certain questions asked by the defence , ORG held that the Investigating Judge had been entitled to do so in order to prevent the witness 's identity from being disclosed or to prevent the asking of questions that were irrelevant to establishing the truth of the matter or the propriety of the criminal investigation .", "In response to a complaint that police officers had been present in the same room as the Investigating Judge and the anonymous witness , it was held that although it must be assumed that it was generally not permissible for police officers to be present ( except in so far as their presence was required for the purpose of technical assistance ) , no defence of this nature had been put forward before ORG . The latter court had therefore not been required to go into this question .", "CARDINAL complaints , including CARDINAL to the effect that ORG ought not to have held what it considered the applicant 's apparent lie that he did not know PERSON to be per se corroborative of his guilt and another relating to the difference in colour between the dustbin liners shown in court and that appearing on the photograph , were dismissed collectively on the following summary reasoning :", "“ These points of appeal do not provide ground to overturn the judgment of ORG ( kunnen niet tot cassatie leiden ) . In light of Article PERSON of ORG ( Wet op de rechterlijke organisatie ) , no further reasoning is called for , since these points of appeal do not require answers to questions of law in the interests of the unity or development of the law . ”", "However , as the mere possession ( as distinct from carrying ) of bayonets had in the meanwhile been decriminalised , ORG reduced the applicant 's prison sentence by DATE , to DATE .", "PERSON Relevant domestic law and practice", "The Code of Criminal Procedure", "The relevant provisions of LAW were enacted by LAW of DATE , ORG , no . CARDINAL , which entered into force on DATE . They provide as follows :", "Article CARDINALa", "A witness who has been involved in his official or professional capacity in the interrogation of a threatened witness or an earlier interrogation of that witness during the preparatory investigation may decline to answer a question put to him in so far as such is necessary in order to keep the identity of the threatened witness concealed .", "Article CARDINALa", "The Investigating Judge shall , either of his own motion or on the application of ORG or at the request of the accused or his counsel or of the witness , order that on the occasion of the interrogation of that witness his identity shall remain concealed , if :", "( a ) the witness or another person may , in view of the statement to be made by the witness , consider himself under such threat that it must in reason be assumed that there is legitimate reason to fear for the life , the health or the safety of the witness or other person , or to fear disruption of his family life or socio - economic existence ; and", "( b ) the witness has made it clear that due to this threat he is unwilling to make a statement . If these requirements are not met he shall reject the application or the request .", "ORG , the accused and his counsel , and the witness shall be offered the opportunity to be heard in this regard .", "The Investigating Judge shall not proceed to the interrogation of the witness as long as an appeal lies against his decision and , if an appeal has been lodged , as long as it has not been withdrawn or decided on , unless the interests involved in the investigation do not admit of any delay . In that case the Investigating Judge shall retain the official record of the interrogation of the witness until the appeal has been decided on .", "Article CARDINALb", "The decision given by ORG under Article PERSON , first paragraph , shall be reasoned , dated and signed and shall promptly be communicated in writing to ORG and notified to the accused and the witness , setting out the time - limit and the way in which the legal remedy available against the decision should be used .", "An appeal lies to the trial court ( gerecht in feitelijke aanleg ) before which the case is being prosecuted , for ORG , within DATE from DATE of the decision , and for the accused and the witness , within DATE after the notification thereof .", "The trial court shall decide as soon as possible . If the appeal against a decision given under Article ORG , first paragraph , is held to be well - founded and ORG has already interrogated the witness having due regard to Articles CARDINAL , the Investigating Judge shall see to it that the official record of the interrogation is destroyed . The Investigating Judge shall make an official record of this event . Article CARDINALf shall apply by analogy .", "No appeal on points of law ( cassatie ) shall be permitted against the trial court 's decision .", "If a final decision has been given on appeal that the witness is a threatened witness , the judges of the trial court shall not , on pain of nullity , take part in the public hearing of the case . LAW paragraph , shall not apply .", "Article CARDINALc", "Before proceeding to interrogate a threatened witness , the Investigating Judge shall verify his identity and mention in the official record that he has done so .", "The witness shall be put on oath or affirmed as provided for in LAW .", "The Investigating Judge shall interrogate the threatened witness in such a way that his identity remains concealed .", "Article ORG", "If this is necessary in the interests of keeping the identity of the threatened witness concealed , the Investigating Judge can decide that the accused or his counsel or both shall not be allowed to attend the interrogation of the threatened witness . In that case the Public Prosecutor shall not be allowed to attend either .", "As soon as possible the Investigating Judge shall make known to ORG , the accused or his counsel , if he has not attended the interrogation of the witness , the content of the statement made by the witness , offering him the opportunity to submit by means of telecommunication or , if the interest of keeping the identity of the threatened witness concealed does not admit of this , in writing , the questions he wishes to have asked . Questions may be submitted already before the start of the interrogation unless the interests of the investigation do not allow the interrogation to be delayed .", "If the Investigating Judge prevents an answer given by the threatened witness from coming to the knowledge of ORG , the accused or his counsel , the Investigating Judge shall have it noted in the official record that the question asked was answered by the threatened witness .", "Article PERSON", "During the interrogation the Investigating Judge shall investigate the reliability of the threatened witness and report his findings in the official record .", "Article CARDINALf", "The Investigating Judge shall take , in consultation with ORG as far as possible , the measures reasonably required to keep concealed the identity of the threatened witness and also of any witness regarding whom an application or a request as referred to in Article PERSON , first paragraph , has been made as long as no final decision has been taken in this respect .", "He is empowered for that purpose to leave unmentioned in documents contained in the case - file ( processtukken ) information concerning the identity of the witness or to anonymise such documents .", "Anonymisations shall be signed or certified by ORG and the registrar .", "Article CARDINAL" ]

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[ "The applicant lives in FAC di GPE , GPE .", "NORP In DATE the applicant married a NORP national GPE In DATE PERSON gave birth to their first daughter A. In DATE the second daughter , B , was born . The family lived in GPE .", "In DATE PERSON took A and B on holiday to GPE . Subsequently , she failed to return to GPE with the children and they remained in GPE .", "In DATE GPE filed with ORG an application for divorce .", "On DATE the applicant applied to ORG designated as a central authority under LAW ( “ LAW ) – for assistance in securing the return of the children .", "On DATE ORG allowed an application submitted by the applicant and made an interim order granting him custody of A and B.", "NORP On DATE the ORG made an interim order requiring A and B to remain in GPE during the proceedings concerning the application for their return .", "On DATE the applicant asked ORG to grant him visiting rights .", "On DATE the ORG allowed the application and granted the applicant visiting rights . In particular , the court granted him the right to visit his children CARDINAL times a month and to take them outside the flat in which they lived . GPE appealed against this decision but her appeal was dismissed on DATE . However , she interfered with the applicant 's visiting rights and in the course of DATE he had to be assisted on CARDINAL occasions by police officers in order to enforce his visiting rights .", "On DATE the ORG dismissed GPE 's request that the case concerning the return of the children be either joined to the divorce case or stayed . The court gave the following reasons for its decision :", "“ Pursuant to LAW after receiving notice of a wrongful removal or retention of a child within the meaning of LAW , the judicial or administrative authorities of ORG to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under LAW . That is why the court has informed ORG that it is necessary to stay proceedings in the divorce case . ”", "At the hearing held on DATE the court decided to order an expert opinion .", "On DATE the Poznań Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno - Konsultacyjny ) submitted to the ORG an expert opinion in reply to the court 's inquiry whether the wellbeing of A and B would be threatened by their return to their father in GPE . The opinion ended with the following conclusions :", "“ CARDINAL . The well - being of [ A and B ] will not be threatened if they are returned to GPE together with their mother . Reuniting the children only with their father would result in repeating an abnormal situation prevailing at the moment . Moreover , in view of the age of the children , and in particular the age of [ B ] , depriving them of the permanent presence of their mother would lead to the inability to fulfil their development needs concerning the mother ;", "NORP the possibility of leaving the children in the custody of their mother in GPE should only be considered if their father could be guaranteed more significant participation in their lives , including contact without the participation of other persons . However , the attitude of the mother does not guarantee that such a right and the needs of the children would be secured . ”", "On DATE the ORG allowed an application for the return of the children lodged by the applicant and ordered GPE to return them to the applicant . The court considered that the removal of A and B had been wrongful under LAW .", "GPE appealed against this decision to the ORG .", "On DATE ORG granted the applicant the custody of A and B and ordered that they be returned to GPE .", "On DATE the ORG held hearings . On DATE it allowed an appeal lodged by GPE , quashed the decision of DATE and remitted the case to ORG .", "On DATE the court held a hearing at which it ordered that a new expert opinion be prepared .", "On DATE the Poznań Family Consultation Centre submitted to the ORG the expert opinion , which ended with the following conclusions :", "NORP The return of the children to GPE without the mother will be difficult for them as it will be damaging . However , we should point out that such damage is experienced by children who grow up separated from one of their parents . That is why in our previous opinion we suggested as the best solution the return of the girls to GPE together with their mother ( ... ) .", "As to the scope of damage caused to the minors by their return to GPE without their mother , we are of the view that :", "- there is no danger of physical damage because the living conditions in GPE guaranteed by their father are proper ( ... ) ;", "- the minors have emotional bonds with their mother and they will suffer because of her absence – it will be impossible for them to fulfil their development needs related to the mother , and this will cause them psychological damage .", "The assessment of all the problems of the children caused by their return to GPE without the mother leads us to the conclusion that it will not expose them to irreparable damage because :", "- they are going back to their father with whom they have emotional bonds ;", "- they have a feeling of belonging to him and he used to play an important role as a parent . ( ... ) ;", "- they are going back to the environment which is familiar to them as they grew up in it and this will facilitate their adaptation ;", "- [ B ] is reaching the age in which contacts with peers become important and her needs can no longer be fulfilled only in the family ; the role of the father also becomes more important at that age ;", "- the possibility of adaptation of [ A ] is even greater than her younger sister 's as she concentrates on problems related to her school life . ( ... ) ;", "- both minors ' psychological and physical development is good and they do not require special conditions for their development .", "Both minors are of a young age and have not reached a degree of maturity which would allow their opinions to be taken into account concerning the choice of the parent with whom they would like to live . In addition to the lack of maturity of the minors , the value of such opinions would be doubtful because of the influence to which they are presently subjected ( ... ) .", "On DATE ORG submitted an additional expert opinion . The experts were heard on DATE .", "On DATE the ORG again allowed an application for the return of the children lodged by the applicant and ordered GPE to return them to the applicant . The court considered that GPE had unlawfully abducted the children . It also observed that :", "“ the court also draws the attention to the fact that [ GPE ] does not obey the law in GPE as she does not comply with a final court decision concerning the father 's contacts with the children ( she does not allow the father to take the children away from their place of residence ) . Therefore , the children can not stay with their father and he can not participate in their education . ”", "( ... )", "The court would also point out that the applicant 's behaviour does not disclose contempt of court . His bitter words directed at the justice system were caused by the despair and bitterness of a father and were justified since the proceedings in the present case have already lasted DATE and [ GPE ] still does not comply with the court decision granting him visiting rights . ”", "GPE appealed against the decision of DATE but on DATE the ORG dismissed her appeal . On DATE the court declared that the decision was enforceable ( klauzula wykonalnosci ) .", "GPE lodged a cassation appeal against the decision of DATE . However , it was rejected on the basis that it was not provided for by the law .", "On DATE the applicant requested the enforcement of the final decision of CARDINAL DATE . On DATE the court 's bailiff requested GPE to return the children to the applicant within DATE . On DATE the court ordered the bailiff to enforce the court 's decision . Since GPE failed to comply , on DATE , the bailiff discontinued the proceedings .", "On DATE the ORG dismissed GPE 's application in which she requested that the final decision should not be enforced .", "On DATE the ORG ordered a court guardian ( kurator sądowy ) to forcibly remove A and B from GPE under LAW .", "On DATE CARDINAL guardians , assisted by police officers and accompanied by a representative of the NORP embassy , visited CARDINAL different houses looking for A and PERSON The applicant was also present . The children were not found at any of those locations . Despite some indications that the children could have been in the second house visited , the police officers refused the guardians ' request to enter the house since they did not have a search warrant .", "On DATE GPE appealed against the enforcement order of CARDINAL DATE but on DATE her appeal was rejected as it was not provided for by the law . Her appeal against the latter decision was dismissed on DATE .", "On DATE the court guardian requested the ORG to institute criminal proceedings against GPE on charges of abduction according to LAW .", "GPE filed with ORG an application challenging judge PERSON but it was finally dismissed on DATE .", "On DATE CARDINAL guardians assisted by police officers and accompanied by a representative of the NORP embassy attempted to enforce the court 's order . GPE and the children were not found in the house they visited .", "On DATE and DATE the guardian informed the court that her attempts to obtain information about the children were still unsuccessful . On DATE the guardian asked whether A had been attending a particular school . On DATE the Director of the school confirmed that GPE had paid for tuition , however due to illness A had not been attending classes .", "On DATE the police informed the court of the address where A and B were staying with their mother . The court guardian went to this address on DATE but the children were not there .", "Apparently , on DATE PERSON proposed a friendly settlement with the applicant . He refused .", "On DATE the court guardian attempted to remove the children from the last known address but there was no sign of them again .", "On DATE the ORG ordered that the children be taken by the court guardian at any time . On DATE the guardian unsuccessfully tried to enforce the order .", "NORP In DATE ORG requested several institutions to submit information about the whereabouts of GPE and the children .", "On DATE the ORG discontinued the criminal proceedings against GPE on charges of abducting and hiding A and B because she considered that the abduction and hiding were of “ minimal social harm ” ( społeczna szkodliwość czynu jest znikoma ) .", "On DATE the ORG dismissed an appeal by the applicant against the prosecution service 's decision of CARDINAL DATE to discontinue the criminal proceedings against GPE on charges of abduction and hiding of A and B.", "On DATE CARDINAL guardians , assisted by police officers and accompanied by a representative of the NORP embassy , went to a property situated in GPE in order to enforce the court order . The property consisted of a house and a plot of land located in a forest and belonging to the local forest warden . It was surrounded by police officers . GPE , her sister and A and B were inside the house . When guardians entered the house A said that she did not want to be reunited with her father and GPE used insulting language with respect to the applicant and the court which had ordered the return of the children . Subsequently , the guardians called an ambulance . After a doctor had examined A and B , the guardians decided that they would not enforce the court order . The guardians , the police officers and the representative of the NORP embassy left the property .", "Immediately after the attempt to remove the children , GPE left with A and B and remained in hiding at least until DATE . Since then they have been living in GPE 's father 's house in P. , where the children attend schools .", "On DATE the ORG suspended the enforcement proceedings concerning the return of the children to the applicant . The court gave the following reasons for its decision :", "“ On DATE the ORG ( ... ) made an order in a case ORG CARDINAL/CARDINAL ordering [ GPE ] to return the minors [ A and B ] to their father [ P.P. ] who lives in GPE . The order was made on the basis of LAW on the Civil Aspects of International Child Abduction .", "The order was appealed . On DATE ORG dismissed appeals lodged by [ GPE ] and ORG . The order is final and enforceable .", "[ GPE ] has been in hiding with the children for DATE and she makes it impossible to enforce the order . She has recently returned to her original place of residence and she has lodged an application under LAW to reject [ ORG ] request to return the children .", "The court has doubts whether it is possible to change an order made under LAW and to give a contradictory decision under LAW . In view of these doubts the court has decided to submit the case ( ... ) to ORG as it raises serious doubts .", "At the same time , the court has stayed the enforcement until the final ruling in the case . ”", "On DATE the ORG dismissed an appeal by the applicant against the decision of DATE .", "On DATE the ORG refused ORG request of DATE and returned the case to ORG . The court considered that it was possible to change the court 's order to return minors but such proceedings must be based on LAW and decided in the light of the principles embodied in LAW . In particular , the change of the order could not be a consequence of the authorities ' failure to take all the measures that could reasonably be expected to enforce the order .", "On DATE the ORG decided that the enforcement proceedings would be stayed until DATE final ruling on GPE 's application to change the court order requiring her to return the children to the applicant .", "On DATE the ORG held a hearing in the proceedings concerning GPE 's application to change the court order concerning the return of the children . At this hearing the court heard evidence from GPE", "DATE . On DATE the applicant asked the court to determine his contact with the children . At the hearing held on DATE the parties agreed that the applicant would have a right to CARDINAL phone calls DATE with A and B. This order was amended on DATE by ORG , which decided that the applicant could visit his daughters every time he came to GPE and that he could take them outside their place of residence .", "On DATE the applicant met his daughters for the first time since DATE . The visit took place in the house of GPE 's father . The applicant was allowed to speak with his older daughter A but the grandfather , assisted by private security guards , stopped him from entering the second floor of the house to see his younger daughter .", "On DATE ORG quashed the decision of DATE and decided not to return the children to the applicant . The court justified the review of the final decisions ordering the return of children to GPE , under LAW , by reference to a risk that their return would expose the children to psychological harm or would otherwise place them in an intolerable situation . It based its assessment on the visits that had been carried out in the place of residence of the children , in DATE and DATE , and on the opinion of the Poznań Family Consultation Centre of DATE . The court established that during their DATE stay in GPE the girls had fully assimilated in the country , spoke NORP , and had forgotten their life in GPE . Their emotional bond with their mother was very strong . The emotional tie between A and her father was distorted as she rejected him , disapproved of him and wished to stay with her mother in GPE . The bond between the younger B and the applicant was considered by the experts as suppressed . In those circumstances the court found that the best interest of the children required quashing the decisions ordering their return to GPE , as separating A and B from their mother could be dangerous for their mental state and could place them in an intolerable situation .", "On DATE the applicant , represented by his lawyer , lodged an appeal against the decision .", "On DATE ORG dismissed the appeal . The decision is final .", "On DATE ORG resumed the enforcement proceedings and decided that in the light of the decision of DATE the enforcement of the order to return the children should be finally discontinued .", "Simultaneously , the NORP courts were dealing with the applicant 's case . On DATE the GPE court granted the applicant sole custody of A and PERSON On DATE the GPE court gave a decision in which it deprived GPE of her parental authority over A and B. The decision is final .", "On DATE , in the course of the divorce proceedings instituted by GPE , the ORG ordered the applicant to pay MONEY ( ORG ) DATE in child support . The applicant submitted that he had been notified of the reasons for this decision in DATE .", "As the applicant was not paying child support the ORG instituted criminal proceedings against him , on a request made by GPE On DATE the ORG ordered the pre - trial detention of the applicant for DATE . Subsequently , the prosecutor issued an arrest warrant against him .", "On DATE the ORG ex officio quashed its decision of DATE .", "On DATE the applicant 's lawyer applied to change the preventive measure imposed on the applicant .", "On DATE ORG dismissed his request as it found that bail would not secure the applicant 's appearance at his trial . That decision was upheld by ORG on DATE .", "Another request to quash the decision ordering the applicant 's detention was dismissed by ORG on DATE . The applicant 's lawyer appealed against this decision .", "On DATE ORG allowed the appeal and quashed the applicant 's detention order . The court established that the reason for which the detention had been imposed , the impossibility of establishing the applicant 's address in GPE , was no longer a valid ground as he had appointed a representative in the case . Moreover , it had not been substantiated that the applicant would avoid his trial .", "On DATE ORG during the divorce proceedings decided to dismiss PERSON 's request for child support from the applicant . The court found that since GPE has been keeping the children illegally and has not allowed the enforcement of final decisions , supporting the children should remain her sole responsibility .", "On DATE ORG dismissed an appeal by GPE against this decision .", "On DATE ORG dismissed another request lodged by GPE to grant her child support from the applicant . Her appeal against this decision was dismissed on DATE by ORG .", "LAW was published in the NORP ORG on DATE . LAW reads , in so far as relevant :", "“ ORG shall cooperate with each other and promote cooperation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .", "In particular , either directly or through any intermediary , they shall take all appropriate measures :", "( a ) To discover the whereabouts of a child who has been wrongfully removed or retained ;", "( b ) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;", "( c ) To secure the voluntary return of the child or to bring about an amicable resolution of the issues ;", "( d ) To exchange , where desirable , information relating to the social background of the child ;", "( e ) To provide information of a general character as to the law of their ORG in connection with the application of the ORG ;", "( f ) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organising or securing the effective exercise of rights of access ;", "( g ) Where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;", "( h ) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;", "( i ) To keep each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”", "Pursuant to LAW :", "“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .", "If the judicial or administrative authority concerned has not reached a decision within DATE of the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . ... ”", "DATE . Article CARDINAL provides as follows :", "“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that –", "a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or", "b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .", "The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .", "In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child 's habitual residence . ”", "DATE ( Kodeks Postępowania Cywilnego ) in Article CARDINAL provides as follows :", "“ The custody court can change its decision if the best interests of the person it concerns so require . ”", "The amendment to the Code introduced on DATE , which entered into force on DATE , deals with the proceedings concerning the return of children under LAW .", "Article DATE provides , that if a person who is ordered to return a child does not comply with the court 's order , the court will instruct the guardian to remove the persons concerned forcibly ( przymusowe odebranie osoby ) .", "According to Article CARDINAL :", "“ Upon a request of a court guardian , the police are obliged to help him in carrying out the forcible removal of [ a minor ] . ”", "Article CARDINAL § CARDINAL provides as follows :", "“ If forcible removal of [ a minor ] is hindered because that person is hidden or because other action is taken with the aim to stop the enforcement of the order , the court guardian shall inform a prosecutor . ”", "Pursuant to DATE :", "“ § CARDINAL The court guardian , in carrying out the removal of [ a minor ] , shall be especially careful and shall do everything to ensure that the well - being of that person is not disturbed and that [ he or she ] does not sustain physical or moral harm . If necessary , the guardian shall request the assistance of the social services or another institution tasked with this function .", "§ CARDINAL If the well - being of [ a minor ] would be in danger as result of the removal , the guardian shall stop the enforcement of the order until the danger is over , unless the stopping of the enforcement would cause greater danger to the person . ”", "As regards visiting rights , according to ORG resolution , if a parent who has been obliged by a court decision to respect the other parent 's access rights refuses to comply therewith , decisions on access rights are liable to enforcement proceedings . The provisions of LAW on enforcement of non - pecuniary obligations are applicable to the enforcement of court decisions on parental rights or access rights ( resolution of ORG of DATE , III CZP CARDINAL , OSNCP DATE ) .", "ORG If a court obliges a parent exercising custody rights to ensure access to a child to the other parent , LAW is applicable to the enforcement of this obligation . This article provides :", "“ CARDINAL . If the debtor is obliged to take measures which can not be taken by any other person , the court in whose district the enforcement proceedings were instituted , on the motion of a creditor and after hearing the parties , shall fix the time - limit within which the debtor shall comply with his obligation , on pain of a fine ( ... ) .", "NORP If the debtor fails to comply with this obligation , further time - limits may be fixed and further fines may be imposed by a court . ”", "Article CARDINAL of the Code provided as follows :", "“ When taking away a person who is the subject of parental authority or who is in care , the bailiff shall be especially careful , and shall do everything to protect such a person from physical or moral harm . The bailiff shall request the assistance of social services , or another institution tasked with this , or a court expert . ”", "Article CARDINAL of the CARDINAL Criminal Code ( Kodeks Karny ) provides as follows :", "“ Whoever , contrary to the will of the person appointed to take care of or supervise , abducts or detains a minor person DATE or a person who is helpless by reason of his mental or physical condition shall be liable to a penalty of deprivation of liberty for DATE . ”" ]

[ "8" ]

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[ "NORP The applicant company is the owner and publisher of the DATE newspaper PERSON .", "In DATE GPE and GPE , the parents of PERSON , dissolved their common household and concluded a provisional agreement on the custody of NORP under which sole custody was granted to GPE , while his brother stayed with PERSON On DATE PERSON asked for custody to be withdrawn from GPE and transferred to him .", "On DATE GPE and GPE agreed that pending the outcome of an expert report custody be provisionally transferred to PERSON ( vorläufige Obsorge ) and that for the time being NORP should live with PERSON , his father .", "It appears that subsequently PERSON hindered contact between NORP and GPE and , in DATE , moved to GPE . Thereupon , by an interlocutory decision ( einstweilige GPE ) of DATE , custody of NORP was transferred back to GPE", "PERSON was ordered to hand NORP over to GPE immediately or to take him back to GPE before DATE . That order was confirmed on appeal on DATE and became final .", "Thereupon GPE travelled to GPE to have that decision enforced . PERSON proposed to GPE that they enter into an agreement on custody of NORP , and GPE also agreed to staying in GPE . However , no such agreement was finally reached . After GPE had settled in GPE and found employment there , PERSON , together with NORP , left GPE for GPE .", "On DATE , pending the outcome of the custody proceedings , custody was temporarily transferred to ORG . On DATE the court dismissed PERSON ’s request for custody to be withdrawn from GPE and transferred to him . The decision was declared immediately enforceable .", "Subsequently , various attempts to enforce that decision were undertaken . The NORP newspapers reported on these events because PERSON kept them regularly informed and sought publicity .", "The first attempt at enforcement , on DATE , failed because GPE and NORP went into hiding . PERSON had informed the media of this step in advance . Some time later they returned . In order to enforce the custody decision the competent court scheduled a hearing for DATE in the course of which NORP was to be handed over to GPE PERSON failed to appear at the hearing .", "Thereupon the judge ordered that NORP be brought before the court by force ( zwangsweise GPE ) .", "When that decision had to be enforced by court officers NORP barricaded himself in his elementary school and , since the police officers who intervened decided not to use physical force on the LOC of the school , this attempt also failed . These events were also widely covered by the media because PERSON had informed them in advance .", "After further unsuccessful attempts the rural police ( ORG ) were informed on DATE that NORP was at his father ’s house . Court officers sent to the house noted , however , that NORP was not in the house but , together with a babysitter , in a car in front of it . The officers tried to take hold of NORP but he cried and resisted . These scenes were again the subject of widespread media coverage because they were observed and photographed by several journalists , who had been informed and had hurried to the spot .", "In order to establish whether NORP had suffered injuries during the attempt to enforce the court order , PERSON took him to the GPE hospital . On DATE , by means of a diversion manoeuvre , GPE and NORP were separated and on DATE NORP was handed over to his mother , GPE , on the premises of the hospital . GPE and NORP have been living in GPE since that time . This final phase of the events was widely reported on in the media .", "On DATE an article was published in the applicant company ’s newspaper under the title “ Mother flees hospital with NORP ” ( “ Mutter flüchtete PERSON aus Spital ” ) , which read as follows .", "“ On DATE TIME the child - care proceedings concerning DATE NORP from GPE took a very surprising turn : Whilst father , mother and son where still talking together over the sick bed in TIME , the mother suddenly snatched the boy ... , left the hospital via an underground passage , took a car that had been left at her disposal and disappeared . “ She is being taken care of on neutral ground and the boy is getting psychological support ” said PERSON from ORG . The father suspects the whole affair of being rigged .", "At lunch - time CARDINAL-year - old mother GPE had arrived at the hospital , hidden from the public . “ The boy was not afraid of his mother ” says children ’s advocate PERSON . Whereas the father claims that NORP clung to him and tried to defend himself against his mother .", "PLANNED After talks lasting TIME , the bombshell : GPE snatched her son when he was left unattended for a moment , and fled the hospital . “ The operation was authorised by the family judge ” explained GPE . Beforehand the older son , PERSON , had been taken to a psychologist and afterwards to the partner of the children ’s father .", "ORG suspects the operation of being a conspiracy : “ It was planned . They were only waiting for a good opportunity . ” He claims to have heard his son crying and then there had been a sudden silence . The father had sat for TIME next to NORP ’s empty sickbed .", "Friends and relatives of the father have announced a demonstration for DATE in front of the justice buildings in GPE .", "The whole country is now shocked about this family dispute . It was triggered by an attempt to take NORP away from his father on DATE . CARDINAL bailiffs tried to pull the boy into a car . However , he defended himself , screamed , bit and clung to the car . Since this incident NORP has remained in the children ’s hospital .", "Opinions in this dispute are very divergent . ORG tries to justify the conduct of the officers . “ In this case the ORG has acted in the interest of the child ” , explained the President of ORG , PERSON . The bailiffs had been ordered to seize the child without bodily harming him . This order was carried out accordingly .", "However , ORG has a different view on the matter . ‘ The conduct of the officers was unacceptable and ORG , declares press officer PERSON . ‘ This was practically ill - treatment of a ORG , said the GPE child and juvenile advocate PERSON .", "SPECIAL TRAINING The president of ORG , PERSON , suggests special training for bailiffs . She is a family judge and has never in her CARDINAL-year career seen such a case . ORG does not consider it helpful for a judge to be present when children are taken away from their parents : “ This would even reinforce the impression of ORG intervention . ”", "A report from ORG will be handed over to the disciplinary commission . The Minister of ORG , PERSON ( ORG ) , announced that an expert commission would be established in order to avoid escalations . And in the future he wants a judge to be present when compulsory measures are carried out .", "According to the Minister , the ORG in GPE acted in an appropriate manner ; however , the father had breached his obligation of discretion . Disputes in childcare proceedings should not be fought on the backs of the children . ”", "A second article was published in the applicant company ’s newspaper under the title “ A dispute might now arise about NORP ’s brother ” ( Nun droht PERSON um NORP Bruder ) on DATE . It read as follows .", "“ After the tumultuous events on DATE the dispute over DATE NORP from GPE has for the time being calmed down . According to information from the ORG , the mother and the boy are at present accommodated and looked after in municipal housing in GPE .", "However , the future of little NORP , and whether and when he will leave with his mother for GPE , is still unclear . A tug of war might also take place over the older brother PERSON : ORG has custody over him for the time being in view of the current child - care proceedings initiated by the father . An investigation procedure is planned for DATE .", "ORG had applied for custody of all CARDINAL children . In DATE his custody applications for PERSON , DATE , and NORP were refused . The decision concerning ORG had been postponed . PERSON is for the time being staying with his father .", "ORG is , however , still at loss about the fact that his ex - wife fled the hospital with NORP . ‘ I can not talk about it’ , he stuttered on DATE , his voice trembling with tears .", "PERSON , a friend of the family who was present when the father and mother met at the hospital , said : ‘ I saw the mother slap the boy in the GPE .", "IGNORED The fact that bothered the lady from GPE most was that the mother was only focussing on NORP : ‘ She has cold - shouldered ORG . I do n’t know why she is behaving like that and what her goal is.’", "Neither the mother nor her lawyer want to answer PERSON ’s queries about this incident . PERSON , Chairman of ORG , considers ORG closed as far as the courts are concerned : ‘ The judicial authorities are no longer involved . It does not concern the judge anymore . It is the GPE responsibility to take the next steps . The court has issued a decision and fulfilled its obligations.’", "In TIME friends of the father started demonstrating in front of ORG . ‘ Without wanting to get involved in the case in question , we would like to point out that children have a right to be heard and have their wishes and opinions respected’ , says PERSON . ”", "Finally , the applicant company published a third article in its newspaper under the title “ The NORP case : ‘ ORG authorities have to become more ORG ( Fall NORP : PERSON muss sensibler werden ) on DATE . It read as follows .", "“ A GPE judge has given the order to use ‘ force’ . ‘ Appropriate force’ in order to take a child away from his father and to take him to his mother in GPE . CARDINAL old NORP from PERSON The boy had fought against CARDINAL bailiffs on CARDINAL DATE . Alarming pictures show the end of the child - care proceedings .", "As reported , the results of the investigations of ORG are now available . ORG President PERSON says : ‘ This case is also a wake - up call for the judicial authorities . We have to become more sensitive.’", "FORCE In his interview with ORG defends the judge who ordered the officers , who are bound by his instructions , ‘ to summon the minor with due tact , but without considering his wishes , and if necessary with due force’ . He says : ‘ That is the wording of the law’ .", "This is not quite true . The word ‘ force’ is not to be found in the non - contentious act . ‘ Means of coercion’ are allowed by the law ; however , they have to be directed against the parent not respecting the judgment .", "But ORG also says : ‘ This matter should never have been dealt with in such a way’ . He wants the officers to be trained how to deal with children and how to talk to them . A disciplinary procedure against ORG judge is going to be initiated : the bailiffs contacted him CARDINAL times during that mission , should he have ended it earlier ?", "Judges are discussing the matter . Judge PERSON : ‘ This case brings us to the limits of judicial activities , it is a tightrope walk’ .", "Means of coercion have to be allowed for at least in cases where severely mistreated children have to be saved from an abusing parent ‘ even when they still love their parents and do n’t want to be taken NORP . However , NORP was definitely not in such a situation .", "ORG professor PERSON ( ORG ) says that this law will be changed , taking effect from DATE , and she further states : ‘ The well - being of the child is the top priority . The new ruling stipulates that the judge has to discontinue the execution of his orders when the well - being of the child is in danger’ .", "President PERSON thinks , on the other hand , that this is already the case DATE . ‘ Even if this is not clearly written in the text of the law , there is such a thing as common sense!’", "He does not only hope that the judicial authorities will act with common sense but the parents as well . They can fight their wars of the roses anywhere , but not on the back of their children .", "He considers that NORP ’s development is positive : ‘ He was examined by a psychologist before leaving with his mother for GPE . The child has calmed down . He was curious about GPE and he was not LOC . ”", "All articles were accompanied by photos of NORP . The first article was accompanied by a picture of NORP showing him with a distressed expression , clinging to his brother , and a similar picture accompanied the third article .", "With regard to the articles published by the applicant company on CARDINAL and DATE and CARDINAL DATE , and the above events , PERSON , represented by his mother , brought proceedings under LAW and CARDINAL of LAW against the applicant company , seeking damages and publication of the ensuing judgment . He argued that the reporting on him had interfered with the intimate sphere of his life in a manner which was likely to expose and compromise him in public . Moreover , the articles constituted a breach of section CARDINALa of LAW , which prohibited reporting on the victim of crime in a manner which made him or her recognisable in public , which was only allowed if the importance of the offence or the persons implicated meant that there was a preponderant interest of the public in the information . Both applications were filed with ORG ( PERSON für PERSON ) .", "On DATE ORG allowed the action and ordered the applicant company to pay damages in the amount of MONEY ( ORG ) , to publish the judgment in its periodical , and to bear the costs of the proceedings . The court found that the publishing of the above articles containing details of the custody dispute over DATE Christian W. had caused the intimate sphere of his personal life to be exposed in a manner likely to compromise him in public , in breach of section CARDINAL of LAW . Moreover , the article published on DATE had made the full name of PERSON public and had been accompanied by a photograph of him . Thereby the identity of a person who had been the victim of a criminal offence had been disclosed to a large and not directly informed circle of people without any justification . This was in breach of Section ORG of LAW . ORG observed further that all the articles had been accompanied by pictures of PERSON in which he , with a highly perturbed facial expression , was seen clinging to his brother .", "ORG accepted that there existed a direct link between the events reported on and the public interest because of the harsh criticism voiced of the conduct of the court officials who had attempted to enforce the custody order . However , the person having custody of NORP had not agreed to the publication and the public interest in the events could have been satisfied without giving the child ’s full name and publishing pictures of him .", "On DATE the applicant company appealed . Relying on LAW it argued , inter alia , that ORG had failed to take into account that on the issue of enforcement of custody orders there was an ongoing discussion in which presidents of various courts and the President of ORG were participating . Moreover , the Federal Minister of Justice had set up a working group of experts to draw up a report on the events of CARDINAL DATE . The press had been addressed not only by NORP ’s father but also by representatives of ORG , the courts and ORG , which had even held a press conference . In such circumstances it had been necessary to inform the public of the identity of the persons involved , and against the background of the public discussion the custody dispute and the preliminary events leading to the incident on DATE had also been of legitimate interest to the public .", "On DATE the plaintiff commented on the appeal . He argued that the applicant company could not rely in its defence on the fact that organs of the judiciary had also commented in public on the events , because they had neither made public the full name of the victim and details from his intimate life nor published photos of him . Had the applicant company acted in the same way , its reporting would have been fully acceptable .", "On DATE ORG partly allowed the appeal . It found that there was no breach of LAW of LAW , because under that provision a compensation claim only existed if a media outlet had described acts by which someone had become the victim of a crime and if the description violated the victim ’s protected interests . In the present case , however , it was not the description of a criminal act that had breached NORP ’s protected interests . It reduced the compensation to ORG CARDINAL per article , altogether ORG CARDINAL,CARDINAL .", "ORG dismissed the applicant company ’s criticism that ORG had not taken sufficiently into account that representatives of the judiciary themselves had made public statements . ORG had accepted that there was a direct link between the events reported on and the public interest . However , giving details from the plaintiff ’s intimate family life , giving his full name , and adding pictures of the plaintiff had transgressed into his intimate sphere as these details had been given merely in order to satisfy the lust for sensation and the curiosity of its readers .", "Even if there was a link to public life , the media could only report on a person ’s intimate sphere to the extent necessary for adequately satisfying the need for information relating to those elements which were of relevance to the public interest . Reporting on events within the intimate sphere of a person must therefore be adequate to the occasion and proportional . In the present case it had not been necessary for the purpose of informing the public on alleged shortcomings within the judiciary , and it had not been necessary to expose in such an intense and striking way the severe strain being suffered by the juvenile plaintiff through the insertion of photographs showing his distress and despair , through mentioning his full name , and through setting out the details of his seizure .", "Section CARDINAL of LAW , which has the title “ Interference with a person ’s most intimate personal sphere ” ( NORP des höchstpersönlichen PERSON ) , reads as follows :", "“ ( CARDINAL ) If a person ’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public , the person concerned may claim compensation from the owner of the media for the injury suffered . The amount of compensation shall not exceed LAW ...", "( CARDINAL ) No compensation claim under paragraph CARDINAL exists if", "NORP the publication at issue is based on a truthful report on a public session of ORG or ORG , ORG , a regional diet or a committee of CARDINAL of these general representative bodies ;", "NORP the publication is true and has a direct connection to public life ;", "in the circumstances it could have been assumed that the person concerned had agreed to the publication ;", "it is a direct broadcast on radio or television ( live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence ;", "the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence . ”", "Section CARDINAL of LAW which has the title “ Protection against divulging a person ’s identity in special cases ” ( ORG in besonderen NORP ) , reads as follows :", "“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who", "NORP has been the victim of an offence punishable by the courts , or", "NORP is suspected of having committed , or has been convicted of , a punishable offence ,", "and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’s position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . The award of damages shall not exceed QUANTITY ; additionally , section CARDINAL ) , second sentence , shall apply .", "( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication", "NORP in the case of subsection ( CARDINAL)CARDINAL , is such as to give rise to an interference with the victim ’s strictly private life or to his or her exposure ,", "NORP in the case of subsection ( CARDINAL , relates to a juvenile or merely to a lesser indictable offence ( PERSON ) or may disproportionately prejudice the advancement of the person concerned .", "( CARDINAL ) No compensation claim under paragraph CARDINAL exists if", "NORP the publication at issue is based on a truthful report on a public session of ORG or ORG , ORG , a regional diet or a committee of CARDINAL of these general representative bodies ;", "NORP the publication of the information on the person has been decided officially , in particular for the purposes of criminal justice or public security ;", "NORP the person concerned has agreed to the publication or if the publication is based on information given by that person to the media ;", "it is a direct broadcast on radio or television ( live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence ;", "the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence . ”", "Section CARDINAL(CARDINAL ) second sentence of LAW , to which reference has been made above , reads as follows :", "“ The amount of compensation shall be fixed according to the extent of the publication , its impact and , in particular , the type of media and how broadly it is disseminated ; the compensation must not endanger the economic existence of the media owner . ”", "Section CARDINAL of LAW which has the title “ Separate compensation proceedings ” ( PERSON ) , insofar as relevant , reads as follows :", "“ In a judgment by which compensation under LAW , DATE , CARDINAL or CARDINAL has been awarded on the basis of a separate compensation request , the court must also order the publication of the judgment if the person concerned so requests so ... ”" ]

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[ "10" ]

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[ "The applicant was born in DATE and lives in NORP .", "During the Second World War , in DATE , the applicant 's entire family – her parents and their children DATE were expelled from their house and farm in the vicinity of ORG by NORP occupying forces . Subsequently , they were for some time placed in a camp for expelled persons in PERSON and then shipped off to eastern GPE , referred to at that time as ORG ( “ LOC ) , which was occupied by the NORP authorities . The applicant and her family were assigned to live on a farm of local farmers in GPE . At the time of the expulsion , imprisonment and resettlement the applicant was DATE .", "On DATE the applicant submitted a request for financial assistance from the Polish - German Reconciliation Foundation under the so - called second compensation scheme ( see paragraph CARDINAL below ) . She declared that she had been a victim of persecution by the NORP occupying authorities during the Second World War . In support of her claims the applicant submitted the following documents : a form certifying registration of her stay in GPE during the war , a certificate of her first communion issued by the rector of the parish of LOC , a certificate of her mother 's death in GPE , statements by CARDINAL witnesses certifying that the applicant had been expelled from the GPE to GPE during the war , the workbook ( “ LOC ” ) of her father 's sister , issued by the NORP authorities , and a number of documents from various NORP archives informing the applicant about difficulties in obtaining documents confirming the persecution to which she had been subjected .", "In DATE ORG of the Polish - German Reconciliation Foundation , established under LAW DATE between the NORP and ORG and operating on the basis of its statute , refused to pay financial assistance to the applicant , considering that persons expelled from their homes and properties by the NORP forces of occupation during the war were not entitled to compensation .", "It further stated that the evidence submitted by the applicant , in particular the witness statements , was insufficient to confirm that the applicant and her family had been imprisoned in the camp for expelled persons .", "The ORG in its letter referred to the requirements of eligibility which were laid down by regulations governing the functioning of the second compensation scheme operated by the ORG ( on the basis of a Law of DATE on the Creation of the “ Remembrance , Responsibility and Future ” Foundation enacted by ORG and the subsequent agreement PERCENT the Polish - German Reconciliation Foundation , see paragraph CARDINAL below ) .", "NORP The applicant appealed . On DATE ORG upheld the contested decision . It informed the applicant that she was not eligible for financial assistance under the scheme in respect of her deportation . Neither she nor her family had been deported for the purposes of forced labour to the territory of ORG within its borders of DATE .", "Moreover , the evidence which she had submitted did not allow it to be established that the applicant and her family had indeed been imprisoned in the camp in ORG . It further informed the applicant that no appeal lay against this decision .", "On DATE the public prosecution services lodged an action on the applicant 's behalf with ORG , referring to LAW and to the ORG 's judgment in the case of PERSON v. GPE ( no . CARDINAL , ORG CARDINALVII ) and seeking to confirm that judicial review of the ORG 's decisions had been available to the applicant at the relevant time .", "These proceedings were stayed on an unspecified later date , when the court referred to an individual constitutional complaint pending before ORG at that time and brought by a certain Mr K. Subsequently , in DATE ORG , by way of a resolution , held that decisions of the ORG could be challenged before the ordinary courts ( see paragraph CARDINAL below ) . This approach was indirectly confirmed by a decision given by ORG in the case referred to above ( see paragraph CARDINAL below ) . The prosecuting authorities did not request that the civil proceedings brought on the applicant 's behalf be resumed .", "NORP In DATE the ORG officially notified the public that it had ceased , as from DATE , to make any further payments to the victims , having allocated all financial resources which had been earmarked for that purpose .", "The relevant law and practice concerning the Polish - German Reconciliation Foundation is set out in the ORG 's judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , DATE ." ]

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[ "The applicant , PERSON , has both GPE and GPE nationality . She was born in DATE and lives in GPE . She was represented before the ORG by PERSON Schrevelius , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant moved from LOC to the GPE on DATE . Her daughters PERSON , born in DATE , and LOC , born in DATE , stayed behind in the care of the applicant ’s mother . According to the applicant , the ORG biological father , Mr T. Fortes Nascimento , has never had any involvement with his daughters’ lives ; he is currently living in GPE .", "On DATE the applicant applied for a residence permit ( verblijfsvergunning ) enabling her to reside in the GPE with her partner PERSON , a GPE national . This request was refused . The applicant ’s subsequent objection ( bezwaar ) and appeal ( beroep ) were declared inadmissible on CARDINAL May and CARDINAL DATE respectively .", "Since DATE the applicant has been living with PERSON , a GPE national . On the basis of this relationship she was granted a residence permit on DATE .", "On DATE the applicant lodged a request for a provisional residence visa ( machtiging tot voorlopig verblijf ) on behalf of her daughters NORP and GPE . Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights . The applicant submitted that she had visited the girls in DATE , together with her partner PERSON On this occasion she had had to conclude that her mother was physically and mentally no longer capable of looking after GPE and PERSON : the girls were being left to their own devices and were , even by local standards , living in unfavourable conditions . The applicant referred to a doctor ’s declaration according to which her mother was suffering from a chronic illness and was indeed incapable of looking after children . She further submitted that she had no other relatives living in LOC .", "The requested provisional residence visa was refused by the Minister of ORG ( Minister PERSON ) on DATE . The Minister was of the opinion that from DATE GPE and GPE no longer actually belonged to the applicant ’s family unit ( gezin ) . It was further held that the refusal of the visa did not constitute a breach of LAW . The applicant ’s objection against this decision , filed on her behalf by a lawyer , was declared inadmissible by the Minister on DATE as no grounds for the objection had been submitted . Although possible , no appeal was lodged against this decision .", "On DATE the applicant lodged a new request for a provisional residence visa on behalf of her daughters . She argued that the close family ties ( gezinsband ) between her daughters and herself had always continued to exist : she had remained in contact with them , both through letters and through telephone conversations , and she had also contributed financially and materially to her daughters’ care and upbringing . The reason she had not asked to be reunited with her children soon after her arrival in the GPE was due to the fact that her then partner , PERSON , had informed her that this would not be possible . The applicant submitted another medical declaration , dated DATE , according to which her mother was suffering from advanced spondylarthritis of the spine as a result of which she was incapable of caring for minor children .", "Considering that the new application for a provisional residence visa contained neither new facts nor new circumstances , the Minister of ORG rejected it on DATE with reference to his previous decisions .", "The applicant and PERSON were married on DATE .", "On DATE a hearing on the applicant ’s objection against the Minister ’s decision was held before an official committee ( ambtelijke commissie ) . At this hearing , the applicant stated that when she had visited her daughters in DATE , they had only just left hospital where they had been admitted after their grandmother had used massage oil in the preparation of food – this had happened because the applicant ’s mother was illiterate . She further clarified that it had always been her intention to send for her children as soon as she had a residence permit . Her first partner in the GPE had not wanted her to bring the girls to the GPE , in addition to telling her that it would not be possible .", "The applicant ’s objection was rejected on DATE . The Minister held that children who had stayed behind in the country of origin could only then be considered as continuing to belong to their parent ’s family unit if that parent had attempted as soon as reasonably possible to have the children join him or her by means of an application for family reunion . The applicant had not provided a plausible explanation as to why she had waited until DATE before applying for a provisional residence visa . It had further not been established that the applicant had made a substantial contribution to the cost of her daughters’ care and upbringing . Neither had it appeared that the applicant – who had only once visited her children since moving to the GPE DATE had continued to exercise parental authority or that she had taken any important decisions relating to their upbringing . For these reasons , the Minister concluded that the children had become integrated in the family unit of their grandmother . The refusal of a provisional residence visa was not contrary to LAW there was no interference with the right to respect for family life since the applicant ’s children were not deprived of a residence permit which had enabled them to exercise family life in the GPE , and neither was the ORG under a positive obligation to grant the girls residence so as to enable the applicant to develop family life with them in the GPE .", "On DATE the applicant obtained GPE nationality .", "The applicant appealed the Minister ’s decision of DATE to ORG ( arrondissementsrechtbank ) of GPE sitting in GPE . Following a hearing , ORG rejected the appeal on DATE . It agreed with the Minister that the close family ties between the applicant and her daughters had ceased to exist . According to ORG , the period of time between the applicant ’s departure from LOC and the first application for a provisional residence visa for her daughters had been of such duration that it could not be said that the situation of the children living with their grandmother was only temporary . The fact that she had not applied for family reunion sooner because her first partner in the GPE was opposed to it , indicated that the applicant had let the relationship with PERSON V.V. prevail over her ties with her daughters . ORG also found that the refusal of a provisional residence visa was not contrary to LAW , having regard to the fact that it had not appeared that there were any objective impediments preventing the applicant and her daughters from continuing their family life as they had already been doing for a considerable number of DATE . In this context it attached relevance to the fact that the manner in which the applicant and her children exercised family life was due to the applicant ’s own choice to leave her daughters behind in LOC .", "Since moving to the GPE , the applicant has regularly transferred money to her mother in LOC in order to pay for her daughters’ upbringing . In addition , once DATE she has sent goods such as clothing , shoes , food , materials for use in school and , on CARDINAL occasion , glasses . She has kept in contact with her daughters by telephone and , less frequently , by mail .", "At the time relevant to the present application , the admission , residence and expulsion of aliens were regulated by LAW DATE ( “ the LAW ” - Vreemdelingenwet DATE ) . On DATE a new Aliens Act entered into force but this has no bearing on the present case .", "As a rule , anyone wishing to apply for a residence permit in the GPE must first apply from his or her country of origin to the GPE Minister of ORG for a provisional residence visa ( machtiging tot voorlopig verblijf ) . Only once such a visa has been issued abroad may a residence permit for the GPE be granted . An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit .", "The Government pursue a restrictive immigration policy due to the population and employment situation in the GPE . Aliens are eligible for admission only on the basis of obligations arising from international agreements , or if their presence serves an essential national interest , or on compelling humanitarian grounds .", "The admission policy for family reunion purposes was laid down in LAW of the Aliens Circular CARDINAL ( “ the FAC ” - Vreemdelingencirculaire DATE ) . It provided that the following persons , where relevant , may qualify for family reunion if certain conditions ( relating to matters such as public policy and means of subsistence ) are met :", "– a person ’s spouse ,", "– a minor child born of the marriage who actually belongs to the family unit ( gezin ) , and", "– a minor child born outside the marriage who actually belongs to the family unit ( e.g. a child of CARDINAL of the spouses from a previous marriage or a foster child ) .", "The phrase “ actually belonging to the family unit ” ( “ feitelijk behoren QUANTITY ” ) used in GPE law only partly overlaps with the term “ family life ” in LAW . The former is understood to mean , for instance , that the close family ties ( gezinsband ) between the child and its parents whom it wishes to join in the GPE already existed in another country and have been maintained . For the rest , the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case . Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation , the way in which the relationship between parent and child has been developed during the separation , the parent ’s involvement in the child ’s care and upbringing , custody arrangements , the amount and frequency of the parent ’s financial contributions to the child ’s care and upbringing , the parent ’s intention to send for the child as soon as possible and his / her efforts to do so , and the length of time that the child has lived in a family other than with the parent . The burden of proving that the close family ties between parent and child have not been severed rests with the parent residing in the GPE . The longer the parent and child have been separated , the heavier the burden of proof on the person in the GPE becomes . It is then incumbent on the parent to present sound reasons as to why he or she did not seek to bring the child to the GPE sooner ." ]

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[ "ORG The applicant was born in DATE and lives in Požega .", "On DATE the applicant sustained an injury in a traffic accident caused by a certain ORG , member of ORG ( “ the ORG ” ) .", "On DATE the applicant brought a civil action against the ORG in ORG seeking non - pecuniary damages in the amount of CARDINAL NORP kunas ( HRK ) .", "On DATE ORG partly ruled in the applicant ’s favour by awarding her HRK CARDINAL . The ORG appealed .", "In DATE ORG PERSON u GPE ) quashed the first instance judgment and remitted the case .", "In the resumed proceedings , on DATE ORG delivered an interim judgment ( međupresuda ) finding the ORG liable for the damage . It held that the ORG had taken over not only the rights and property of the former GPE , but also its obligations . The ORG appealed .", "On DATE ORG reversed the interim judgment finding that the ORG was not liable for the damage as it was not a legal successor of the former GPE and had not taken over any liability for damages caused by members of the ORG .", "On DATE the applicant lodged an appeal on points of law ( revizija ) with ORG ( PERSON ) alleging that ORG wrongly applied the substantive law .", "On DATE the LAW to LAW ( “ the DATE LAW ) entered into force .", "On DATE ORG returned the case - file to ORG with the instruction to stay the proceedings , pursuant to LAW .", "On DATE ORG decided to stay the proceedings . On DATE ORG dismissed the applicant ’s appeal against that decision .", "On DATE the Act on the Liability of GPE in the Former GPE for which the Former GPE was Liable ( “ the DATE LAW ” ) entered into force .", "Pursuant to the DATE LAW , the proceedings resumed .", "On DATE ORG upheld the applicant ’s appeal on points of law , quashed ORG judgment of DATE and ORG judgment of DATE and remitted the case to the first instance court .", "In the resumed proceedings , on DATE ORG gave judgment partly accepting the applicant ’s claim and awarded her HRK CARDINAL . The applicant appealed .", "On DATE ORG dismissed the applicant ’s appeal and upheld the first instance judgment , which thereby became final .", "Meanwhile , on DATE the applicant lodged a constitutional complaint concerning the length of the proceedings . On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s complaint .", "Section CARDINAL ( b ) of the LAW to LAW ( Zakon o dopunama PERSON o obveznim odnosima , ORG no . CARDINAL of DATE ) provided that all proceedings concerning compensation for damage incurred in the former GPE and instituted against the ORG , as CARDINAL of its legal successors , were to be stayed pending the enactment of new legislation on the subject .", "The DATE Amendments also imposed an obligation on the Government to submit special legislation to ORG regulating liability for such damage within DATE of the Act entering into force .", "The relevant part of LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) , as in force at the material time , provided :", "“ Proceedings shall be stayed :", "...", "( CARDINAL ) where another statute so prescribes . ”", "“ Parties may lodge an appeal on points of law [ revizija ] against res judicata judgment given by the second instance court within DATE following the date of service of a copy of the judgment . ”", "“ An appeal on points of law shall not postpone the enforcement of res judicata judgment against which it has been lodged . ”", "Section CARDINAL provides that an appeal on points of law may be lodged on grounds of certain procedural errors or wrong application of the substantive law but not for factual shortcomings .", "Sections CARDINAL - CARDINAL specify the cases , in which ORG may , if it finds an appeal on points of law well - founded , quash the second instance judgment and remit the case , as well as those in which it may reverse such a judgment .", "The DATE Act on the Liability of GPE in the Former GPE for which the Former GPE was Liable ( Zakon o odgovornosti PERSON štetu nastalu u bivšoj SFRJ za koju je odgovarala bivša SFRJ , ORG no . CARDINAL of DATE ) regulates circumstances in which compensation for such damage may be claimed from the ORG ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant is a NORP national , born in DATE . He is presently detained in the PERSON prison . The applicant is represented before the ORG by Mr GPE , a lawyer practising in GPE ( GPE ) .", "A." ]

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[ "The applicant was born in DATE and lives in Split .", "On DATE the applicant brought a civil action for defamation against ORG in ORG ( PERSON ) , seeking non - pecuniary damages .", "In the period DATE and DATE the firstinstance court held CARDINAL hearings .", "By a judgment of CARDINAL DATE ORG dismissed the applicant ’s action .", "Following an appeal by the applicant , on CARDINAL DATE the ORG ( PERSON ) quashed the first - instance judgment and remitted the case .", "In the resumed proceedings , ORG held CARDINAL hearings , and on DATE delivered a judgement whereby it ordered the defendant to pay the applicant CARDINAL NORP kunas ( HRK ) as compensation for non - pecuniary damage .", "Following an appeal by the defendant , on CARDINAL DATE the ORG reduced the amount of damages payable to the applicant to HRK CARDINAL . The judgment was served on the applicant ’s representative on DATE .", "Meanwhile , on CARDINAL DATE the applicant lodged a request for the protection of the right to a hearing within reasonable time ( zahtjev za zaštitu prava na suđenje u razumnom roku ) with ORG .", "On DATE the ORG found a violation of the applicant ’s right to a hearing within reasonable time , awarded her HRK CARDINAL,CARDINAL in compensation and ordered ORG to give a decision in her case within DATE of the service of its decision . ORG decision was served on ORG on DATE .", "The relevant provisions of LAW ( Zakon o sudovima , ORG nos . CARDINAL , CARDINAL and CARDINAL/CARDINAL ) , governing the request for the protection of the right to a hearing within a reasonable time , as the remedy for the length of judicial proceedings in GPE , are set out in GPE v. GPE , no . CARDINAL , § DATE , DATE ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in GPE , GPE . The respondent Government were represented by their Agents , PERSON , and subsequently by PERSON J. Wołąsiewicz , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE ORG in GPE ( ORG Прокуратуры Республики PERSON области ) ordered that the applicant be detained in connection with charges of forgery of documents and selling a stolen car that had meanwhile been laid against him . The prosecuting authorities further issued a search warrant in respect of the applicant . Having established that the applicant had left the country , the NORP authorities issued in his respect an international search and arrest warrant .", "On DATE ORG , relying on LAW of DATE between GPE and GPE ORG , Family , Labour and Criminal Matters ( Umowa między PERSON a ORG o pomocy prawnej i stosunkach prawnych w sprawach cywilnych , rodzinnych , pracowniczych i karnych ) ( “ the DATE Agreement ” ) , asked ORG Ministry of Justice to extradite the applicant .", "On DATE the applicant was arrested in GPE under the above - mentioned international search and arrest warrant and , on DATE , brought before ORG ( Sąd Rejonowy ) . The court , having regard to the provisions of LAW , ordered that the applicant be detained pending extradition until DATE .", "On DATE the ORG prolonged the applicant 's detention until DATE .", "On DATE ORG ( Prokurator Wojewódzki ) asked ORG ( Sąd Wojewódzki ) to issue a ruling as to whether the applicant 's extradition to GPE was permissible .", "On DATE the applicant applied for asylum .", "On DATE the applicant 's lawyer requested ORG to adjourn consideration of the extradition request until the termination of the asylum proceedings . Alternatively , the applicant 's lawyer requested that the court rule against the applicant 's extradition . He also requested the applicant 's release .", "On DATE ORG considered the matter . In view of a formal shortcoming in the extradition request , it decided to ask the NORP authorities , through ORG , for rectification of that shortcoming . That request was submitted to ORG . ORG further asked the Minister of ORG for information on whether the applicant had applied for asylum in GPE . It also dismissed the applicant 's request for release , considering that there was a risk that he would leave GPE .", "On DATE ORG requested ORG to provide information on the asylum proceedings .", "On DATE the applicant requested ORG to release him on bail . He argued that the charges against him were unsupported by any evidence and that they in fact constituted a form of punishment for his political activities in a NORP opposition movement . That application was referred to ORG who , at that stage of the procedure , was competent to deal with it . On DATE ORG refused to release the applicant on the grounds that the charges against him had been sufficiently supported by evidence produced by the NORP authorities and that there was a risk that he would go into hiding .", "The applicant appealed to ORG ( Prokurator Apelacyjny ) on DATE . He argued that he had never gone into hiding , which , he added , was clearly shown by the fact that his stay in GPE was , and had been , legal , that he had had a place of residence and that he had worked in GPE . He also stressed that he had suffered from depression and had received treatment in GPE . On DATE ORG upheld the decision of ORG .", "In the meantime , on DATE , ORG granted ORG application for the applicant 's detention to be prolonged . The ORG ordered that the applicant be held in custody until DATE .", "The applicant appealed on DATE . He submitted , inter alia , that , pursuant to LAW ( “ the LAW ” ) , his detention should have been lifted because the requesting ORG had not produced the necessary evidence in support of the extradition request within DATE . He stressed that ORG request for the rectification of formal shortcomings had still not been forwarded to the NORP authorities . It was posted , after DATE , to ORG , which subsequently decided that it had no competence to deal with the matter and referred it to ORG ( Prokurator PERSON ) . ORG decided that he had no competence to handle it either . He referred it back to ORG on DATE . The applicant concluded that his detention was no longer lawful .", "On DATE the contested decision was upheld by ORG ( Sąd Apelacyjny ) . The court stressed that the applicant 's detention was the only preventive measure which could ensure the proper conduct of the extradition proceedings .", "On DATE ORG again requested ORG to enquire with the NORP authorities about rectification of their extradition request .", "On DATE ORG informed ORG that the asylum proceedings were pending .", "On DATE ORG submitted to ORG supplementary information produced by the NORP authorities .", "In the meantime , on DATE , ORG had prolonged the applicant 's detention until DATE . It relied , inter alia , on the risk that the applicant would go into hiding .", "The applicant appealed to ORG ( Sąd Najwyższy ) on DATE . He asked to be released on bail and argued that his detention had been unlawful because the NORP authorities had not yet rectified shortcomings in their request for extradition . He alleged , inter alia , a violation of LAW DATE Code and a breach of LAW .", "On DATE ORG rejected the appeal . It considered that the lifting of the applicant 's detention was not , as he claimed , mandatory pursuant to LAW because the application of that provision was excluded by a special rule laid down in LAW . In consequence , the applicable provision was LAW , under which the lifting of detention in such circumstances was optional . ORG also observed that the prolongation of detention was necessary in order to ensure the proper conduct of the extradition proceedings in view of the risk that the applicant would go into hiding . Lastly , ORG pointed out that there had been no circumstances in the case which would justify the applicant 's release pursuant to LAW .", "On DATE ORG informed ORG that the applicant 's request for asylum was being examined by ORG .", "On DATE ORG prolonged the applicant 's detention until DATE . It considered that the original grounds for keeping him in custody were still valid and that there were no grounds for releasing him , as provided in LAW . It stressed that there were justified fears that the applicant would go into hiding because he had already been wanted under the international search and arrest warrant . The applicant 's appeal against that decision was dismissed by ORG on DATE . ORG considered that the applicant 's continued detention was necessary in order to secure the proper conduct of the extradition proceedings , taking into account that the asylum proceedings were still pending .", "ORG session scheduled for DATE was cancelled due to an illness of the presiding judge .", "On DATE ORG held a session . It adjourned its examination of the extradition request since the applicant had applied to the Minister of ORG for reconsideration ( wniosek o ponowne rozpatrzenie sprawy ) of the decision refusing to grant him asylum . The court also dismissed the applicant 's request for release .", "On DATE ORG notified ORG that the asylum proceedings should be terminated by DATE .", "On DATE the ORG prolonged the applicant 's detention pending extradition until DATE . It emphasised that the asylum proceedings were still pending .", "On DATE ORG requested ORG to provide information on the progress of the asylum proceedings . On DATE the ORG replied that the applicant 's asylum request had been rejected by the final decision of CARDINAL DATE .", "ORG session scheduled for DATE was cancelled .", "On DATE ORG held a session . It adjourned the consideration of the extradition request since the applicant had in the meantime applied for review of the unfavourable asylum decisions by ORG ( PERSON ) .", "On DATE ORG prolonged the applicant 's detention pending extradition until DATE . It stressed that the delay in the extradition proceedings had been caused by circumstances which could not be attributed to the court before which those proceedings were pending .", "On DATE ORG informed ORG that the asylum proceedings were still pending .", "On DATE ORG prolonged the applicant 's detention until DATE . It considered that the extradition procedure had been prolonged on account of circumstances for which the NORP judicial authorities could not be held responsible . In particular , it emphasised that the need to await the outcome of the asylum proceedings brought by the applicant had made it impossible for them to rule on the extradition request . Were the applicant to be granted asylum , he could not be extradited pursuant to the relevant provisions of LAW . The court went on to find that the relevant material strongly supported a reasonable suspicion that the applicant had committed the offences with which he had been charged and concluded that the previous reasons for his detention were still valid .", "On DATE ORG informed ORG that the asylum proceedings were still pending .", "On DATE ORG ordered that the applicant be held in detention pending extradition until DATE . It considered , inter alia , that keeping him in detention was necessary pending the asylum proceedings .", "On DATE the applicant requested ORG to order his release . That request was rejected on DATE .", "On DATE ORG made an application to ORG for prolongation of the applicant 's detention pending extradition until DATE . On DATE ORG refused that application .", "On DATE ORG ruled that the applicant 's extradition was permissible . It observed that the applicant had been charged with an ordinary criminal offence of appropriation of property . It also found that the applicant 's allegations of his persecution on account of his activities in the NORP opposition group had not been corroborated by evidence . It also noted in this respect that the applicant 's inconsistent submissions indicated that he had attempted to avoid criminal responsibility for the offence in question . On DATE ORG prolonged the applicant 's detention until DATE .", "The applicant appealed to ORG on DATE . He alleged , among other things , a breach of Articles CARDINAL and CARDINAL § CARDINAL of the Convention . He maintained that all available sources , for example reports of international human rights organisations and daily press materials , consistently showed GPE as a country that did not respect fundamental human rights . Reported instances of unlawful arrests and unfair trials , as well as of beating and maltreatment were so wide - spread that they justified the applicant 's fears that if he were extradited , he would be denied a fair trial and would be subjected to inhuman and degrading treatment in NORP prisons . Lastly , the applicant submitted that he had already informed the NORP authorities that CARDINAL DATE he had been arrested by the NORP police in connection with his participation in an anti - government demonstration . In his opinion , all those circumstances showed that the request for extradition was made for the purpose of punishing him for his political activities .", "ORG upheld the contested decision on DATE .", "On DATE the applicant asked the ORG to apply Rule CARDINAL of its Rules of Procedure and to stop his extradition to GPE . That application was rejected on DATE .", "On DATE ORG gave a decision fixing the final deadline for the applicant 's detention in the extradition proceedings for DATE . That decision was upheld on appeal on DATE .", "The applicant was extradited to GPE on DATE .", "On DATE the applicant , while in detention pending extradition , applied to the Minister of ORG for asylum in GPE . He submitted that for DATE he had been a member of a NORP dissident organisation , i.e. ORG “ Restitution ” ( ORG “ Odrodzenie ” ) and that , because of his political activity , he risked revenge from the ORG authorities . He further alleged that the charges against him were based on entrapment by a former officer of the ORG .", "The Minister of ORG , pursuant to section QUANTITY , requested the Minister of ORG to issue an opinion on the applicant 's request . On DATE the Minister of ORG objected to the grant of asylum . This decision was upheld on appeal on DATE . The Minister of ORG , having made relevant inquiries , found no reliable evidence of the applicant 's alleged activities in the opposition movement in GPE . It also observed that the applicant had applied for asylum only after he had been detained with a view to extradition , while he had had sufficient time to do so earlier .", "On DATE the Minister of ORG rejected the applicant 's request for asylum . He upheld his decision on DATE . The Minister found that the actions of the NORP prosecuting authorities against the applicant had not been politically motivated . He observed that there had been many inaccuracies in the applicant 's account given in support of his asylum request . He also considered that the applicant lacked even basic knowledge about the opposition group of which he had allegedly been a member . The Minister further observed that the applicant had applied for asylum only after he had been placed in detention pending extradition despite the fact that during the period of his alleged persecution he had been in GPE on a few occasions . It noted that at the relevant time the applicant had left GPE legally and that he had travelled back to his home country on CARDINAL occasions . Furthermore , he did not apply for asylum immediately after he had entered GPE , but instead took steps to regularise his stay in GPE . Those facts indicated , in the Minister 's view , that the applicant had no reason to fear for his life or limb and that his application for asylum constituted an abuse of the relevant procedures .", "On an unspecified date in DATE the applicant appealed to ORG against the unfavourable decisions of both Ministers .", "On DATE ORG dismissed the applicant 's appeal . It upheld the findings of the Ministers and considered that the applicant could not be granted asylum as he had not demonstrated that he had been persecuted in GPE on account of his alleged political activities in the opposition movement .", "In his application of DATE the applicant stated that during his detention his correspondence had been opened and intercepted by the NORP authorities . He has not submitted any documentary or other evidence in support of his submissions .", "In his application of DATE the applicant submitted that if he were extradited to GPE , he would be exposed to a serious risk of torture and be denied a fair trial . He relied on the fact that he was a member of ORG “ Restitution ” and that he had received from that organisation a silver medal for his activity . He further produced a copy of the document entitled “ Information of ORG on Violation of Human Rights in DATE ” . In the opinion of the authors of that document , the NORP authorities were responsible for several physical attacks on persons criticising President PERSON , as well as on independent journalists . Those attacks were carried out by unknown persons . Culprits had not been found . The authorities had also made some attempts to discredit their political opponents by , for instance , bringing criminal proceedings against them . That document also described the very difficult conditions of detention in NORP prisons .", "Until DATE , i.e. the date on which the Law of DATE ( commonly referred to as the “ new Code of Criminal Procedure ” ) entered into force and repealed the DATE Code , the rules governing detention and extradition proceedings were contained in the latter statute .", "LAW read :", "“ If there are no special reasons to the contrary , detention on remand should be lifted , in particular , if :", "( CARDINAL ) it may seriously jeopardise the life or health of the accused ; or", "( CARDINAL ) it would entail excessively serious repercussions for the accused or his family . ”", "Article CARDINAL § CARDINAL read :", "“ Extradition shall be refused if a person to be extradited is a NORP national or has been granted asylum in GPE . ”", "LAW specified :", "“ If information contained in a request for extradition is insufficient and the court or the prosecutor has asked for it to be supplemented and if , within DATE following the date on which [ the requesting ORG ] has been served with the request for supplementary information , [ that ORG ] has not produced the necessary documents or information , detention shall be lifted . ”", "Article CARDINAL § CARDINAL provided :", "“ The provisions of this LAW shall not apply if an international agreement , to which GPE is a party , provides otherwise . ”", "LAW reads , in so far as relevant :", "“ CARDINAL . Upon a request and subject to the provisions of this agreement , the Contracting Parties undertake to surrender to each other persons who are on their territory in order to proceed against them for an offence or to carry out a sentence . ”", "Article CARDINAL reads :", "“ If the information communicated [ by the requesting ORG ] is not sufficient to allow [ the requested ORG ] to rule on a request for extradition , the requested ORG may ask for the information to be supplemented . To this end , the requested ORG may fix a time - limit of DATE [ for the receipt thereof ] . If there are important grounds [ for doing so ] , that time limit may be prolonged for a [ further ] DATE on the request of the requesting ORG . ”", "Article CARDINAL provides :", "“ After the receipt of the request for extradition , the requested ORG shall promptly take steps to detain the person concerned . This shall not apply to cases where it is evident that extradition is not admissible under this agreement . ”", "DATE lays down the following :", "“ The requested Contracting party may release the person detained pursuant to LAW if no supplementary information has been produced within the time - limit laid down in LAW . ”" ]

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[ "The applicants , GPE nationals and husband and wife , were born in DATE and DATE respectively , and live in GPE .", "The applicants had a daughter PERSON born on DATE .", "On DATE , PERSON screamed with pain when picked up by the maternal grandmother . The parents and grandmother took PERSON to the hospital . The triage nurse made a note of information given by the family . That note stated that the mother , rather than the grandmother , had “ yanked ” M.", "An X - ray showed a displaced slightly - comminuted fracture of the midshaft of the femur . While it was noted that there was no history of metabolic bone disease in the family , it was not noted that the parents were first cousins , an incident relevant to a possible genetic condition . Neither the mother nor grandmother spoke much LANGUAGE ; no PERSON interpreter was provided . A consultant paediatrician , PERSON , interviewed the parents and grandmother early in the morning DATE , again without an interpreter . He noted that none of them appeared to know how the injury had occurred . He concluded that it was an inflicted injury and told the parents this .", "The police were informed . The parents were interviewed on DATE by a social worker . He was unable to communicate with the mother due to language difficulties .", "On DATE the health visitor for the family was interviewed and stated that she had had no concerns about the family .", "NORP On DATE the police interviewed the parents with an interpreter present .", "On DATE , a social worker interviewed the family again and indicated that medical opinion was clear that PERSON could not have been injured by being picked up in the manner described by the grandmother . She warned that without a convincing explanation for the injury a child protection conference would have to be called .", "On DATE , in light of the doctor ’s conclusion of non - accidental injury ( ORG ) , ORG decided to seek a second opinion but that meanwhile an interim care order should be obtained . Such care order was issued and parental responsibility given to the local authority on DATE .", "On DATE , PERSON was discharged from hospital into the care of her aunt . The parents were allowed supervised contact .", "The parents obtained legal advice and jointly instructed an expert , with PERSON ’s guardian , inter alia , to clarify whether tests had been carried out to exclude brittle bone disease . However no further tests were carried out at this stage .", "On DATE , ORG judge found that the mother and grandmother were liars and knew more about the injury than they were prepared to reveal ( they had given evidence through an interpreter which they allege was suspect ) and that as the father was convinced of the innocence of his wife , he was disqualified as a person capable of protecting PERSON ordered PERSON to be placed in care . PERSON remained with her aunt who lived QUANTITY from the family home .", "On DATE , PERSON sustained a second injury in her aunt ’s care . Bilateral femoral fractures were found and following further tests she was diagnosed with osteogenesis imperfecta ( “ OI ” , commonly known as brittle bone disease ) . Professor PERSON and Dr PERSON were consulted at this time by PERSON and inter alia did not find any ground for reaching a diagnosis of OI in preference to a non - accidental injury at the time of the first injury .", "After discharge from hospital , PERSON returned home in DATE .", "On DATE , the care order was discharged and PERSON returned to her parents . In her report to the court dated DATE , PERSON ’s guardian ad litem noted , inter alia , that this had been a particularly perplexing case , in which a diagnosis of non - accidental injury in respect of the first injury had appeared to be the most likely explanation while not fitting with the other information , essentially positive , which had emerged about the family . She also noted that all the experts agreed that medical evidence available to the court at the time of the interim care order was as complete as it could be at that time and that a diagnosis of bone disorder could not have been made at the time of the first injury .", "The entire local community were aware that the family had been suspected of harming PERSON and the family had been extremely shocked and shamed . Rumours had spread to GPE that the mother had been put in prison . The GPE relationship with PERSON and with the grandmother were severely affected and disrupted as a result of events .", "On DATE the parents brought claims for negligence and breach of their Article CARDINAL rights against the hospital trust and the consultant paediatrician .", "On DATE , ORG found no duty of care was owed to the parents and that LAW DATE ( “ HRA DATE ” ) did not apply to events before it came into force on DATE . The parents appealed .", "Leave to appeal to ORG was granted . CARDINAL other cases raising similar issues were considered at the same time .", "On DATE , concerning the GPE claims in the CARDINAL cases , ORG held as regards allegations under LAW that no violation of this provision was involved , referring to GPE judgments ( PERSON and Others v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALV and ORG and PERSON v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALV ) . It found that while domestic law now recognised that there was a duty of care in relation to children , whose best interests were always paramount , there was a potential conflict of interest between the child and the parents , as it would always be in the GPE best interests for the child not to be removed . Where consideration was being given to whether child abuse justified measures , a duty of care could be owed to the child but not to the parents . It upheld the rulings of the various ORG judges as a result .", "After a hearing on DATE and CARDINAL and DATE , ORG gave judgment on DATE . They affirmed the orders made by the first - instance judges and ORG . Lord PERSON , in his judgment with which the majority agreed , found inter alia :", "\" DATE . There are CARDINAL cardinal features in these cases . CARDINAL feature is that a parent was suspected of having deliberately harmed his or her own child or having fabricated the child ’s medical condition . The other feature , which is to be assumed , is that the ensuing investigation by the doctors was conducted negligently . In consequence , the suspected parent ’s life was disrupted , to a greater or lesser extent , and the suspected parent suffered psychiatric injury .", "It is the combination of these features which creates the difficult problem now before the ORG . In the ordinary course the interests of parent and child are congruent . This is not so where a parent wilfully harms his child . Then the parent is knowingly acting directly contrary to his parental responsibilities and to the best interests of his child . So the liability of doctors and social workers in these cases calls into consideration CARDINAL countervailing interests , each of high social importance : the need to safeguard children from abuse by their own parents , and the need to protect parents from unnecessary interference with their family life .", "The first of these interests involves protection of children as the victims of crime . Child abuse is criminal conduct of a particularly reprehensible character : children are highly vulnerable members of society . Child abuse is also a form of criminal conduct peculiarly hard to combat , because its existence is difficult to discover . Babies and young children are unable to complain , older children too frightened . If the source of the abuse is the parent , the child is at risk from his primary and natural protector within the privacy of his home . This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life , with the added complication that the parent who is responsible for the abuse will give a false account of the child ’s history .", "The other , countervailing interest is the deep interest of the parent in his or her family life . ... Interference with family life requires cogent justification , for the sake of children and parents alike . So public authorities , should , so far as possible , cooperate with the parents when making decisions about their children . Public authorities should disclose matters relied upon by them as justifying interference with family life . Parents should be involved in the decision - making process to whatever extent is appropriate to protect their interests adequately .", "The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child . Public confidence in the child protection system can only be maintained if a proper balance is struck , avoiding unnecessary intrusion in families while protecting children at risk of significant harm ... Clearly health professionals must act in good faith . They must not act recklessly , that is without caring whether an allegation of abuse is well - founded or not . Acting recklessly is not acting in good faith . But are health professionals liable to the suspected parents if they fall short of the standard of skill and care expected of any reasonable professional in the circumstances ? Are they exposed to claims by the parents for professional negligence ? ...", "In considering these questions the starting point is to note that in each of these CARDINAL cases ... the doctors acted properly in considering whether the claimant parents had deliberately inflicted injury on the child in question . The doctors were entitled , indeed bound to consider this possibility . Further , having become suspicious , the doctors rightly communicated their suspicions to the statutory services responsible for child protection . That is the essential next step in child protection ...", "DATE . In each case the suspected parent was eventually cleared of suspicion . In CARDINAL case this was after DATE , in the other cases after much longer periods . The second point to note is that , essentially , the GPE complaints related to the periods for which they remained under suspicion . In each case the parent ’s complaint concerns the conduct of the clinical investigation during these periods ; the investigation , it is said , was unnecessarily protracted . The doctors failed to carry out the necessary tests with appropriate expedition . Had due care and skill been realised from the outset , the ORG suspicions would have been allayed at once or much more speedily than occurred , and , in consequence , the parents would have been spared the trauma to which they were subjected . Thus the essence of the claims is that the health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions , a duty sounding in damages if they act in good faith but carelessly .", "Stated in this broad form , this is a surprising proposition . In this area of the law , concerned with the reporting and investigation of suspected crime , the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith ...", "DATE . This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested . The existence of such a duty would fundamentally alter the balance in this area of the law . It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child , the doctor would owe a duty of care to the suspect ...", "CARDINAL ... < Counsel > did not contend for such a broad proposition ... His submission was more restricted .... That the health professionals’ duty to exercise due professional skill and care is owed only to the child ’s primary carers , usually the parents , as well as the child himself . ...", "My initial difficulty ... is that the distinction between primary carers , to whom the duty would be owed , and other suspects to whom it would not , is not altogether convincing . It is difficult to see why , if a health professional owes no duty to a childminder or teacher suspected of abuse , he should nonetheless owe such a duty to a parent suspected of abuse . An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her . ...", "There is , however , CARDINAL major difference between parents and childminders or school teachers , . In the case of a parent suspicion may disrupt the parent ’s family life . ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected ...", "...", "In my view the Court of Appeal reached the right conclusion on the issue ... Ultimately the factor which persuaded me that , at common law , interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘ conflict of interest’ . A doctor is obliged to act in the best interests of his patient . In these cases the child is his patient . The doctor is charged with the protection of the child , not with the protection of the parent . The best interests of a child and his parent normally march hand - in - hand . But when considering whether something does not feel ‘ quite right’ , a doctor must be able to act single - mindedly in the interests of the child . He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent .", "... the seriousness of child abuse as a social problem demands that health professionals , acting in good faith in what they believe are the best interests of the child , should not be subject to potentially conflicting duties when deciding whether a child may have been abused , or when deciding whether their doubts should be communicated to others , or when deciding what further investigatory or protective steps should be taken . The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child . ... \"" ]

[ "13" ]

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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 ’s real property situated in GPE was damaged on several occasions . The applicant considers that this was due to the fact that she had sold CARDINAL of her houses to a Romany family and that the local inhabitants were opposed to that family settling down in the village . In the beginning of DATE proceedings under LAW were brought against a person on the ground that he had used electric power from the connection to the applicant ’s house in GPE .", "On DATE a masked man wearing gloves attacked the applicant with a club in her apartment in FAC . The applicant was seriously injured . Immediately after the attack she telephoned the police and asked for assistance .", "Subsequently the applicant was brought to a hospital . The doctors diagnosed fractures of her jaw , forearm and shinbone as well as numerous contusions . The applicant had to undergo several operations . As a result of the injuries , the applicant had to stop working and she was granted a disability pension .", "While she was treated in the hospital in ORG , the applicant twice telephoned the police and requested them to hear her .", "The police in LOC heard the applicant for the first time on DATE , after her release from the hospital .", "On DATE the police department in FAC adjourned the investigation of the case pursuant to LAW . The decision stated that it had not been possible to identify the perpetrator of the assault or to establish any facts permitting criminal proceedings to be brought against a specific person .", "On DATE the applicant filed a complaint . She submitted that the police had failed to explain the reasons for their decision and that they had refused to record a part of her statement relating to the assault .", "On DATE ORG quashed the police decision as being unlawful . The public prosecutor established , in particular , that the case should have been dealt with by ORG in GPE . The case was transferred to the latter .", "In a letter of CARDINAL DATE ORG of ORG admitted that the police had taken too long to hear the applicant for the first time .", "On DATE the investigator adjourned the case pursuant to LAW as the perpetrator of the assault could not be identified .", "On DATE the applicant challenged this decision . She argued that the investigator had failed to hear her and to establish the relevant facts . The applicant also complained that the investigator had failed to give reasons for his decision .", "On DATE ORG dismissed the complaint on the ground that the applicant lacked standing to file it . The decision stated that the investigator had proceeded in accordance with the law and that he had considered all available information .", "On DATE ORG of the police acknowledged that the police in FAC had acted erroneously in that they had failed to transmit the case to ORG in PERSON immediately after having examined the applicant ’s flat .", "On DATE ORG dismissed the applicant ’s complaint against the decision to adjourn the case . The letter stated that there existed no evidence permitting identification of the perpetrator of the offence .", "The applicant filed complaints with different authorities . She alleged that the offence had not been investigated properly in that , inter alia , the case had not been handed over to the criminal police immediately after the incident as required by the relevant regulations , that the police and the investigator had not had regard to all relevant facts , and that they had disregarded her request that CARDINAL persons indicated by her should be thoroughly questioned in her presence .", "On DATE the applicant filed a criminal complaint against CARDINAL persons whom she suspected of having been involved in the assault .", "On DATE ORG suspended the proceedings concerning the assault on the applicant pursuant to LAW ) of LAW . Prior to that the investigator had heard the applicant . CARDINAL of the QUANTITY persons indicated by the applicant had also been examined . According to their statements , they knew the applicant and had had no conflicts with her . They denied any involvement in the offence and stated that they had no recollection of their whereabouts at the time when it had been committed . The whereabouts of the third person against whom the applicant had filed a criminal complaint could not be established .", "On DATE ORG dismissed the applicant ’s complaint against the decision to suspend the proceedings .", "In the meantime , on DATE , the applicant filed a criminal complaint against CARDINAL policemen alleging that they had failed to deal with her case in an appropriate manner as a result of which the perpetrator of the offence could not be identified .", "On DATE ORG informed the applicant that no action would be taken on her complaint as there was no indication that an offence had been committed by members of the police .", "On DATE the director of ORG in PERSON dismissed the applicant ’s request for exclusion of the investigators of that ORG . On DATE ORG in PERSON dismissed the applicant ’s complaint against this decision .", "On DATE ORG in GPE resumed the criminal proceedings concerning the assault on the applicant on the ground that the police had established the whereabouts of the third person whom the applicant had indicated as a possible perpetrator of the offence .", "On DATE the investigator again suspended the proceedings pursuant to Article CARDINAL(CARDINAL)(e ) of the Code of Criminal Procedure . The decision stated that the third person indicated by the applicant as a suspect had denied any involvement in the assault , and that that person had no recollection of his whereabouts at the time when the offence had been committed . On DATE ORG dismissed the applicant ’s complaint against this decision .", "In the meantime , on DATE , ORG dismissed the applicant ’s complaint about the conduct of the investigation . As regards the conduct of the police in FAC , the public prosecutor stated that they had photographed the applicant ’s flat and examined it for fingerprints and any other relevant evidence . A record was drawn up which indicates that the police did not use a dog with a view to tracing the scent of the perpetrator as the traces had been destroyed , in the meantime , by the other inhabitants of the house . Furthermore , the police had heard CARDINAL persons before they adjourned the case . The public prosecutor admitted , however , that the police in FAC had acted erroneously in that they had failed to transfer the case to an investigator of ORG in PERSON immediately after the examination of the flat .", "The letter by the public prosecutor further stated that the delay in hearing the applicant was due to a mistake by the PERSON - Juh police who had been asked to do so while the applicant had been in a hospital .", "The public prosecutor informed the applicant that in the proceedings there had been no substantial shortcomings which would affect the lawfulness of the decisions taken .", "On DATE the applicant challenged the above conclusions before ORG .", "In a letter of CARDINAL DATE ORG dismissed the applicant ’s complaint with reference to the documents included in the case file . The letter stated , in particular , that the police department in FAC had called an ambulance and had sent a patrol to the applicant ’s flat immediately after her call on DATE . The police had examined the place of the assault and also taken all evidence available on the spot . No fingerprints which could be used had been discovered . On DATE the police had heard the applicant ’s son and CARDINAL other persons . On DATE the police had heard another person whom the applicant ’s son had indicated as a possible perpetrator of the offence . A number of the applicant ’s acquaintances , neighbours and colleagues had been heard subsequently , however to no avail .", "The letter further stated that the applicant could not be heard immediately after the incident due to the state of her health . Following her transfer to the hospital in PERSON the police in FAC had asked the PERSON - Juh police department , on DATE , to hear her in the hospital . On DATE the latter had replied that the applicant had had an operation on her jaw and that , according to doctors , she could be examined in DATE at the earliest . Following her release from the hospital the applicant had been heard by policemen from the LOC police department in her flat on CARDINAL DATE . The applicant had stated that she had had no conflicts with other persons and that she could not indicate who could be interested in causing injuries to her . There was no indication that the decision to adjourn the case had been arbitrary or erroneous .", "ORG office noted that the case had been proceeded with following the applicant ’s criminal complaint against CARDINAL persons filed on DATE . In that context the police investigator had heard the applicant and the persons concerned . However , no facts permitting the prosecution of a specific person had been established . The letter concluded that the proceedings would be resumed should such facts be subsequently established .", "On DATE the applicant sent a letter to ORG in which she alleged that the police and public prosecutors dealing with the case had intentionally kept secret the identity of the perpertrators of the offence . She complained that her flat had not been examined by the criminal police immediately after the assault and that the latter had failed to hear her . The applicant further complained that the police had examined her for the first time DATE after the assault had taken place and that she had not been confronted with the CARDINAL persons against whom she had filed a criminal complaint . Finally , the applicant alleged that the police in FAC had refused to come to her flat and to draw up a record of her statement that an unknown person had asked her on the telephone , on DATE , whether she wanted to know the identity of the perpetrator .", "On DATE ORG replied to the applicant that her above letter contained no new relevant information .", "The following provisions of LAW are relevant in the present case .", "Pursuant to LAW ) , as in force until DATE , the police or investigator shall adjourn proceedings when the facts established by them do not suffice for criminal proceedings to be brought . Prior to such a decision all necessary action should be taken with a view to proceeding with the case effectively . Once the reasons for adjourning the case have ceased to exist , it should be proceeded with in accordance with the relevant provisions of LAW .", "Article CARDINAL(CARDINAL)(e ) provides that a police investigator shall suspend the proceedings when it has not been possible to establish facts permitting the prosecution of a particular person ." ]

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[ "The applicant is a GPE national who was born in DATE and lives in LOC . He is a practising lawyer ( advocaat en procureur ) . He was not represented before the ORG .", "On DATE the social security investigating officer ( sociaal rechercheur ) Mr PERSON took and recorded a statement from CARDINAL PERSON , a person of PERSON origin who was suspected of having unjustly received social security benefits and , in this context , of having committed forgery . PERSON was alone with Mr PERSON at the time and did not have the assistance of either a lawyer or an interpreter .", "Subsequently , PERSON was prosecuted for social security fraud . In addition , civil proceedings were instituted against him by the social security authorities for the recovery of the excess benefits paid to him . The applicant acted as PERSON counsel in both sets of proceedings .", "NORP In the civil proceedings , the applicant declared , inter alia :", "“ The statement recorded in writing by Mr W. can not have been obtained in any other way than by the application of pressure in an unacceptable manner in order to procure incriminating statements , the significance of which was not or not sufficiently understood by PERSON given the absence of an interpreter . ”", "This passage appears in pleading notes submitted to ORG ( arrondissementsrechtbank ) at a hearing held on DATE .", "Having learned of this statement in DATE , Mr PERSON filed a disciplinary complaint within the meaning of section CARDINALc of LAW ( GPE ) against the applicant to the PERSON ( deken ) of the local ORG ( PERSON ) . He complained that the applicant 's unfounded insinuations had tarnished his professional honour and good reputation , that the applicant had transgressed the limits of decency , and that the applicant had accused him obliquely of having committed perjury in drawing up the record in question .", "Following an exchange of correspondence , the PERSON forwarded Mr PERSON 's complaint to ORG ( ORG ) of GPE .", "In its decision of DATE , following adversarial proceedings , ORG rejected as unfounded the complaint that the applicant had , in veiled terms , accused Mr PERSON of perjury . It did , however , consider that the applicant , by contending that Mr PERSON had exerted unacceptable pressure on PERSON , had made an assertion that was not supported by any facts . It concluded that the applicant had thus transgressed the limits of acceptable behaviour and failed to observe the standards expected from a lawyer ( “ ... PERSON het toelaatbare overschreden en heeft hij in strijd gehandeld met hetgeen een behoorlijk advocaat betaamt ” ) . Noting the nature and the limited degree of seriousness of the applicant 's conduct , ORG considered it sufficient to declare the complaint of Mr PERSON partially well - founded without imposing any sanction .", "The applicant lodged an appeal with ORG ) . He submitted that PERSON had not had the assistance of a lawyer before he signed his written statement , despite having asked for a lawyer to be present , that no interpreter had been present at the interrogation , that PERSON was a drug addict and that he had told him that pressure had been brought to bear . The applicant also referred to a statement taken by the investigating judge ( rechter - commissaris ) from PERSON on DATE , which reads as follows :", "“ In reply to the question why I stated to the police that I had lived together with my ex - wife during the relevant period ... I say that I was pressured during that interrogation .", "This pressure consisted of kicking against the table and kicking motions in my direction . I was also verbally abused .", "When it came to signing the statement , I asked for the chief , but he was said to have already gone home . I then asked for a lawyer because I wanted an interpreter to come and read my statement to me . The police said , however , that no lawyer could come . So in the end I just signed the statement . ”", "The applicant argued that in defending his client he should have been free to conclude , as he had , that his client 's confession could only have resulted from unacceptable pressure being brought to bear by the investigating officer . It would then have been for the court to which this conclusion was presented to decide whether or not it hat been established that such unacceptable pressure was in fact exerted . But it was not for a disciplinary tribunal to find that a statement made at a trial in defence of his client was unacceptable because it had not been sufficiently verified .", "In its decision of CARDINAL DATE , following adversarial proceedings , ORG dismissed the applicant 's appeal and upheld the decision of DATE in its entirety .", "It noted that , in the civil proceedings involving PERSON , the allegation in issue had been made in the applicant 's submissions during the first - instance proceedings as well as in the proceedings on appeal before ORG ( in the latter proceedings in the course of a hearing held on DATE ) . It did not find it established that , at the material time , the applicant had in fact been informed by PERSON that he considered that unacceptable pressure had been exerted on him when PERSON took his statement . It further noted that the applicant 's contention had remained wholly unsubstantiated at the material time .", "The Disciplinary Appeals Tribunal agreed with ORG that a lawyer was not entitled to express reproaches of the kind in issue without any factual support , which implied that a lawyer , prior to raising such allegations , should seek information from his client as to the circumstances constituting the unacceptable pressure allegedly exerted .", "Section CARDINAL of LAW provides as follows :", "“ Advocates shall be subject to disciplinary proceedings regarding any act or omission which is in breach of the due care they ought to exercise as advocates visàvis those whose interests they look after , or ought to look after , any breach of the Regulations of the National Bar , and any act or omission not befitting a respectable advocate . This disciplinary justice is dispensed in the first instance by ORG , and , on appeal , by ORG , which is also the highest instance . ”", "A complaint against an advocate is submitted to the PERSON of the local ORG ( section CARDINALc(CARDINAL ) ) , who shall investigate it ( section CARDINALc(CARDINAL ) ) . He may forward it to ORG ( PERSON ) for further action ( section CARDINALc(CARDINAL ) ) .", "If a friendly settlement can not be reached , the matter is referred to ORG by the ORG ( or ORG as the case may be ) , either at the request of the complainant or ex officio ( section CARDINALc(CARDINAL ) and section CARDINALd ) .", "The sanctions available to ORG and ORG are : mere admonition ; reprimand ; suspension from practising for a period not exceeding DATE ; and disbarment ( section CARDINAL ) .", "Guidance on the nature of an “ act or omission not befitting a respectable advocate ” is found in LAW advocaten ) , the most recent version of which dates from DATE . Rule CARDINAL reads as follows :", "“ Advocates should behave in such a way that confidence in the profession or in their own exercise of the profession is not harmed . ”" ]

[ "10" ]

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[ "NORP The applicant was born in DATE and lived in GPE until DATE .", "The applicant came to the GPE with his mother and CARDINAL brothers in DATE , when he was DATE , in order to join his father who had already been living there for DATE . He was granted a residence permit ( vergunning tot verblijf ) which he was required to renew at DATE intervals until DATE , when he obtained a permanent residence permit ( vestigingsvergunning ) .", "On DATE the applicant was convicted by the single - judge chamber of ORG ( arrondissementsrechtbank ) of the offence of breach of the peace ( lokaalvredebreuk ) , and fined MONEY ( NLG – CARDINAL ( ORG ) ) . The same court convicted him on DATE of violent offence against the person , committed in public ( openlijke geweldpleging ) , and sentenced him to a fine of NLG CARDINAL ( ORG CARDINAL ) and a suspended term of imprisonment of DATE .", "NORP In DATE the applicant entered into a relationship with a GPE national . They started living together in or around DATE . A son was born to the couple on DATE .", "On DATE the applicant was convicted by ORG ( gerechtshof ) of violent offence against the person , committed in public , and sentenced to TIME of community service ( in lieu of CARDINAL months’ imprisonment ) .", "During the second pregnancy of the applicant ’s partner , the relationship began to suffer . In order to alleviate the situation , the applicant moved out in DATE , but remained in close contact with both his partner and his son . The pregnancy ended in a miscarriage .", "On DATE the applicant was involved in a dispute in a café . He pulled a loaded gun and shot a man , wounding him in the leg . Outside the café he then got into a fight with a friend of the injured man . He pulled a second loaded gun and shot him in the head . The man died . The applicant was convicted of manslaughter ( doodslag ) and assault ( zware mishandeling ) by ORG on DATE and sentenced to CARDINAL years’ imprisonment .", "Whilst serving his prison sentence , from CARDINAL DATE until DATE , the applicant took courses in computer skills , administration and accounting , and also obtained a retailer ’s certificate ( middenstandsdiploma ) . He took further courses in order to qualify as a sports instructor . His partner and son visited him in prison at least once DATE and regularly more often . A second son was born to the applicant and his partner on DATE , whom he also saw DATE . Both his children have GPE nationality and have been recognised ( erkend ) by the applicant . Neither his partner nor his children speak NORP .", "By a decision of DATE , the Deputy Minister of Justice ( ORG ) withdrew the applicant ’s permanent residence permit and imposed a DATE exclusion order ( ongewenstverklaring ) on him in view of his conviction of DATE and DATE prison sentence . The Deputy Minister considered that the general interest in ensuring public safety and the prevention of disorder and crime outweighed the applicant ’s interest in being able to continue his family life with his partner , children , parents and brothers in the GPE .", "NORP The applicant lodged an objection ( bezwaarschrift ) against this decision , arguing that the offence in question had been committed long before , in DATE , that he had not reoffended , that there was no indication that he would reoffend , and that his partner and children could not be expected to follow him to GPE . Following a hearing before ORG on matters concerning aliens ( PERSON voor vreemdelingenzaken ) on DATE , at which the applicant was assisted by an interpreter , the Deputy Minister rejected the objection on DATE and ordered the applicant to leave the GPE as soon as he was released from prison .", "The applicant appealed to ORG of The Hague , sitting in GPE , submitting that , as there was no risk of his reoffending , there was no necessity to impose an exclusion order on him and that to do so amounted to the imposition of a second penalty .", "The applicant was released from prison on DATE and subsequently placed in GPE detention ( vreemdelingenbewaring ) pending his deportation .", "Following a hearing on DATE , ORG rejected the applicant ’s appeal on DATE . ORG did not accept the applicant ’s argument that the period of time that had elapsed DATE on which his criminal conviction had become irrevocable and the date on which the exclusion order had been imposed was so long that the Deputy Minister should be deemed to have acquiesced in the applicant ’s continued residence in the GPE . Furthermore , it did not discern any facts or circumstances capable of justifying a reduction of the period for which the applicant would be excluded from GPE territory . The applicant ’s claim that there was no risk of his reoffending was based solely on his own statements and was not supported by the facts , given that he had also been convicted of violent offences in DATE and DATE . In addition , it did not appear that the applicant had put down roots in the GPE or become dissociated from NORP society to such a degree that he would be unable to return to his country of origin . Finally , ORG considered that the interference with the applicant ’s family life was justified for the purposes of preventing disorder and crime .", "The applicant was deported to GPE on DATE . However , it appears that he returned to the GPE soon afterwards , as he was apprehended there on CARDINAL DATE . He was again deported to GPE on DATE , and a request for a provisional stay of execution of the deportation order , which he had lodged with ORG of The Hague , was declared inadmissible on DATE . He was also convicted of the offence of residing illegally in the GPE while subject to an exclusion order ( LAW ( PERSON ) ) and sentenced to CARDINAL months’ imprisonment .", "On DATE the applicant requested that the exclusion order be revoked . The Deputy Minister of ORG refused the request on CARDINAL DATE and on DATE dismissed an objection the applicant had filed against that refusal . The applicant subsequently lodged an appeal , which was declared inadmissible by ORG of The Hague , sitting in GPE , on DATE . No appeal lay against that decision .", "The applicant submitted that , prior to his deportation in DATE , he had only been back to GPE once in order to attend the funeral of his grandmother , and that he did not speak the NORP language apart from understanding certain expressions . His only relative in GPE was an uncle with whom he had no contact .", "According to a report drawn up by a psychiatrist in GPE on DATE , the applicant was suffering from psychological problems as a result of being separated from his family . In particular , not being able to see his children was making him depressed . Treatment had begun in DATE and was continuing , though some improvement had been noted .", "On DATE the applicant was discovered working at an illegal cannabis plantation in the GPE . He was arrested and subsequently placed in GPE detention . This detention was discontinued on DATE in order to execute the judgment whereby the applicant had been sentenced to CARDINAL months’ imprisonment ( see paragraph CARDINAL above ) . On DATE the applicant was deported to GPE .", "At the relevant time the decision to withdraw the applicant ’s residence permit and to impose an exclusion order on him was taken under sections DATE and CARDINAL of LAW DATE ( Vreemdelingenwet DATE ) and in accordance with the policy laid down in Chapters ACARDINAL and ACARDINAL of LAW DATE ( Vreemdelingencirculaire – a body of directives drawn up and published by ORG ) . Underlying this policy is the principle that the longer an alien has lawfully resided in the GPE DATE and the stronger , therefore , his or her ties with the GPE are assumed to be DATE the more serious an offence must be before it can justify withdrawing a residence permit and excluding the alien from GPE territory ; the authorities thus apply a sliding scale ( glijdende schaal ) .", "In accordance with this policy , a residence permit may be withdrawn and an exclusion order imposed on an alien who , at the time of committing the offence , has been lawfully residing in the GPE for CARDINAL but DATE like the applicant in the present case – if he or she is sentenced to an unsuspended prison sentence of DATE following a conviction for a serious , violent crime or for drug trafficking .", "If an exclusion order is imposed on the basis of a conviction for a serious , violent crime or drug trafficking , this order will in any event be revoked , upon request , if the alien has been residing outside the GPE for a period of DATE and if he has not been convicted of further criminal offences ( LAW ACARDINAL/CARDINAL.CARDINAL of LAW DATE ) .", "A person upon whom an exclusion order has been imposed is not allowed either to reside in or to visit the GPE .", "Article CARDINAL § QUANTITY of the Criminal Code reads :", "“ A convicted person sentenced to a custodial sentence for a determinate period of which DATE is to be executed shall be granted early release when CARDINAL of that sentence have been served . ”", "Article CARDINALa of LAW , in so far as relevant , provides :", "“ CARDINAL . NORP Early release may be postponed or withheld where :", "( a ) the convicted person , on grounds of the inadequate development or pathological disturbance of his mental faculties , has been placed in an institution for the treatment of persons subject to an order for confinement in a custodial clinic and where continuation of treatment is required ;", "( b ) the convicted person has been convicted in a final judgment of a serious offence for which , pursuant to LAW [ PERSON ] , detention on remand [ voorlopige hechtenis ] is allowed and where the offence was committed after the execution of his sentence commenced ;", "( c ) there is evidence that the convicted person has otherwise grossly misbehaved after the execution of his sentence commenced ;", "( d ) the convicted person evades , or attempts to evade , his sentence after its execution has commenced .", "NORP If the prosecuting authorities [ Openbaar Ministerie ] charged with the execution of the sentence consider that , on one of the grounds mentioned in the first paragraph , there is cause for postponing or withholding early release , it shall lodge a written request to that effect with ORG without delay . ... ”", "With regard to the various texts adopted by ORG in the field of immigration , mention should be made of ORG Rec(CARDINAL)CARDINAL concerning the security of residence of long - term migrants and Rec(CARDINAL)CARDINAL on the legal status of persons admitted for family reunification , and of ORG ) on the non - expulsion of long - term immigrants .", "Recommendation PERSON states , inter alia :", "“ CARDINAL . As regards the protection against expulsion", "( a ) Any decision on expulsion of a long - term immigrant should take account , having due regard to the principle of proportionality and in the light of ORG Rights’ constant case - law , of the following criteria :", "– the personal behaviour of the immigrant ;", "– the duration of residence ;", "– the consequences for both the immigrant and his or her family ;", "– existing links of the immigrant and his or her family to his or her country of origin .", "( b ) In application of the principle of proportionality as stated in paragraph CARDINAL ( a ) , member GPE should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long - term immigrant . More particularly , member GPE may provide that a long - term immigrant should not be expelled :", "– after DATE of residence , except in the case of a conviction for a criminal offence where sentenced to in excess of CARDINAL years’ imprisonment without suspension ;", "– after DATE of residence , except in the case of a conviction for a criminal offence where sentenced to in excess of DATE of imprisonment without suspension .", "After DATE of residence , a long - term immigrant should no longer be expellable .", "( c ) ORG - term immigrants born on the territory of the member ORG or admitted to the member ORG before DATE , who have been lawfully and habitually resident , should not be expellable once they have reached DATE .", "Long - term immigrants who are minors may in principle not be expelled .", "( d ) In any case , each member ORG should have the option to provide in its internal law that a long - term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety . ”", "In Recommendation CARDINAL ( DATE ) ORG recommended that ORG invite the governments of member GPE , inter alia :", "“ CARDINAL . ...", "( ii ) ...", "( c ) to undertake to ensure that the ordinary - law procedures and penalties applied to nationals are also applicable to long - term immigrants who have committed the same offence ;", "...", "( g ) to take the necessary steps to ensure that in the case of long - term migrants the sanction of expulsion is applied only to particularly serious offences affecting State security of which they have been found guilty ;", "( h ) to guarantee that migrants who were born or raised in the host country and their under - age children can not be expelled under any circumstances ;", "... ”", "ORG replied to the ORG on the matter of non - expulsion of certain migrants on DATE . It considered that Recommendation Rec(CARDINAL)CARDINAL addressed many of the concerns of the ORG and it was thus not minded to devise any new standards .", "Under the heading “ Effective protection against expulsion of family members ” , ORG recommended to governments in Recommendation Rec(CARDINAL)CARDINAL that , where the withdrawal of or refusal to renew a residence permit , or the expulsion of a family member , is being considered :", "“ ... member GPE should have proper regard to criteria such as the person ’s place of birth , his age of entry on the territory , the length of residence , his family relationships , the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin . Special consideration should be paid to the best interest and well - being of children . ”", "In the majority of the member ORG , second - generation immigrants may be deported by the authorities on the ground that they have been convicted of a criminal offence . CARDINAL member States have provided in their laws that second - generation immigrants can not be deported on the basis of their criminal record or activities : GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . Apart from GPE and GPE , this protection is not confined to those who were actually born in the host country but also applies to foreigners who arrived during childhood ( varying from before DATE in GPE to before DATE in GPE ) ." ]

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[ "8" ]

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[ "The applicant was born in DATE and lives in PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is the chairman of ORG ( ORG ) , which represents its members in numerous companies .", "The applicant was an employee of the security company PERSON As the chairman of the trade union , he had constant arguments with the company . In DATE his employment was terminated , which measure was declared illegal by the competent courts in DATE . The applicant alleged that , since then , company PERSON has not allowed him to enter its LOC , even on official trade union business .", "In DATE the applicant lodged a private motion ( magánindítvány ) with ORG against PERSON , the managing director of company PERSON , alleging that the latter had committed defamation by saying at a company meeting that the applicant “ had taken under his wing criminals who had worked in the company ” . In DATE ORG , acting as a second - instance court , ultimately found PERSON guilty of defamation and fined him MONEY ( ORG ) ( MONEY ( ORG ) ) .", "In DATE the trade union became active in company NORP In DATE , the trade union was informed of an intention to sell company NORP and that CARDINAL of the possible buyers was company PERSON The employees of company NORP opposed the project and , in order to express their opinion , requested the trade union to organise a protest demonstration . This it did in front of the ORG building . The applicant , as chairman of the trade union , gave interviews to several newspapers concerning the events .", "On DATE , a DATE newspaper ORG published an article which reported the planned sale of company NORP and described the demonstration , analysing the background to the events . It interviewed the applicant , who made the following statements .", "“ ... the other reason [ for which we are holding a demonstration ] is that CARDINAL employees should not lose their livelihood and that such a company [ i.e. company PERSON ] which tramples constitutional and labour rights should not be the successor of company NORP ( ... ) Because of the inhuman conduct of the management [ of company PERSON ] [ the employees ] should not have to stay in a place where they were called ‛criminals’ . We initiated court proceedings in CARDINAL cases because of that . ”", "On DATE PERSON brought an action against the applicant before ORG , asking the court to establish that the applicant ’s statements had infringed his good reputation , to order the applicant to refrain from such acts in the future and to arrange for a rectification to be published .", "On DATE ORG , finding that it was impossible to identify PERSON directly from the impugned article , dismissed his action . The plaintiff appealed .", "The Pest County Regional Court was of the view that the ORG decision had only been a partial decision determining the applicability of the law on defamation . On DATE , it amended the first - instance decision and established that the plaintiff could be identified from the article in question . Thus he , as an affected person , might lawfully claim the protection of his privacy rights .", "NORP In fresh proceedings ORG found , on DATE , that the applicant had tarnished the plaintiff ’s good reputation by the impugned statements and ordered him to publish a rectification and pay the plaintiff ’s court fees in the amount of ORG CARDINAL ( approximately EUR CARDINAL ) . It established that the applicant ’s assertions were statements of fact rather than value judgments . It also noted that , although it was true that numerous civil and labour proceedings had been instituted against company PERSON , this fact could not justify defamatory statements .", "ORG refused the applicant ’s request to obtain the decisions adopted in those other proceedings , or to hear witnesses who might be able to prove the veracity of his assertions . It was of the view that this evidence could not possibly render lawful his statements , which in any event were exaggerated and offensive .", "The applicant appealed . On DATE the ORG upheld the first - instance decision . It held that the applicant ’s assertions were value judgments based on factual allegations expressed in a wholly unlawful manner , since he had articulated his views in a “ gratuitously insulting , offensive and harsh way . ”", "ORG also referred to a decision of ORG which had come to the same conclusion in another defamation case instituted directly by company PERSON against the applicant . It established that the protection of the rights of others constituted a legitimate restriction on freedom of expression even in cases of public interest . However , it established that the present case did not deal with such matters of general concern , even if company NORP had many employees .", "The applicant lodged a petition for review with ORG . He pointed out that the final decision had erroneously found his assertions to be statements of fact , since they were the expression of an opinion based on true facts . The applicant also stressed that his aim had been to inform the public about an important matter . Lastly , he was of the view that in expressing his opinion he could not have harmed anyone ’s reputation , even if he had used harsh terms , and that he had acted in compliance with relevant domestic law , the well - established case - law of ORG and ORG , as well as with NORP standards .", "On DATE a single judge of ORG declared the applicant ’s petition inadmissible . It found that the final decision had been correct and in accordance with law , particularly in view of the nature of the applicant ’s assertions , which had been gratuitously insulting , offensive and harsh , and violated the plaintiff ’s privacy irrespective of their value judgment content . ORG also pointed out that the right to freedom of expression was not unlimited and should not violate the personality rights of others .", "“ ( CARDINAL ) The protection of personality rights shall also include the protection of the good reputation of others .", "( CARDINAL ) In particular , the statement or dissemination of an injurious and untrue fact concerning another person DATE or the presentation , with untrue implications , of a true fact relating to another person – shall constitute defamation . ”", "“ ( CARDINAL ) A person whose personality rights have been infringed may bring the following civil-", "a ) a claim that the court establish that an infringement has taken place ;", "b ) a claim that the infringement be discontinued and the perpetrator be forbidden from further infringements ;", "c ) a claim that the perpetrator be ordered to give satisfaction by making a declaration or in any other appropriate manner and , if necessary , this be made adequately public by , or at the expense of , the perpetrator ;", "d ) a claim that the prejudicial situation be terminated , and that the situation prior to the infringement be restored by , or at the expense of , the perpetrator ... ;", "e ) a claim for damages under the rules of civil law liability . ”" ]

[ "10" ]

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[ "The applicant is an ethnic NORP ; he was born in DATE in GPE and lived there . In DATE his property in GPE was destroyed as a result of military hostilities . Since DATE the applicant has been living in GPE ; on DATE a forced migrant ’s card was issued to him . At the material time the applicant was the deputy chairman of ORG .", "On DATE the applicant returned by car from a mission in GPE to PERSON in Kabardino - Balkaria . He was accompanied by PERSON . , driver , Mr PERSON , a member of ORG , and PERSON . , a representative of the NORP elders .", "At TIME the applicant ’s car was stopped at the check - point “ GPE ” on the administrative border between PERSON and Kabardino - Balkaria . After TIME of checking the documents and identities of the applicant and his travelling companions , officers of the Kabardino - Balkaria State Inspectorate for Road Safety ( ГИБДД МВД КБР ) refused them entry to NORP on the ground of their NORP ethnic origin .", "In TIME , the applicant and his companions took a long detour and reached PERSON through a different check - point .", "On DATE the applicant lodged a complaint with the ORG against ORG of the Interior ( ORG КБР ) . The applicant sought a declaration that the actions of the police officers had been unlawful , and claimed compensation for non - pecuniary damage caused by the alleged violation of his constitutional right to liberty of movement .", "The Nalchik Town Court accepted the complaint , but no proceedings took place for DATE . Following the applicant ’s complaint to ORG , ORG held a hearing .", "On DATE the ORG gave its judgment . The court found that on DATE ORG had issued Directive no . CARDINAL ( ORG № CARDINAL ) on the procedure for crossing the administrative border of NORP by residents of GPE . The regulation provided for stricter checks of vehicles and passengers of NORP origin , as well as for the special registration of NORP on the basis of ORG cards . The court questioned the police officers who had been on duty on DATE . The officers maintained that neither the applicant nor his companions had produced their ORG cards ; the officers had informed their superior on duty of this situation and , pursuant to his oral order , they refused admission to the applicant and his companions . The court held that the applicant had failed to prove that he had indeed shown his migrant ’s card to the police officers and , therefore , there was no ground to declare their actions unlawful . The court noted that on TIME the applicant had gained admission into FAC through a different check - point . The court also inspected the registration log of DATE and noted that on the same day other NORP passengers carrying migrants’ cards had been admitted into FAC .", "The applicant appealed against the judgment of DATE . He submitted , in particular , that the regulation of CARDINAL DATE had not been valid and enforceable because it had never been officially published .", "On DATE ORG of the Kabardino - Balkaria Republic upheld the judgment of DATE . The court pointed out that the burden of proof was on the applicant , who had failed to show that he had been denied entry because of his ethnic ( NORP ) origin .", "Article CARDINAL of the LAW of the Russian Federation provides for the equality of all before the law and courts of law , and equality of rights and liberties .", "Article CARDINAL provides that everyone lawfully within the territory of the NORP Federation shall have the right to move freely and choose his or her place of stay or residence ." ]

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[ "The applicant was born in DATE .", "The applicant travelled to GPE from GPE on DATE . She claimed that she had been raped several times in GPE and that her purpose in travelling to GPE was to escape from the sexual and physical violence which she had experienced . She intended to work to support herself in GPE and to pursue further education .", "According to the applicant ’s account , a relative named PERSON and a Mr A. helped her obtain a false passport and a visa to enable her to enter GPE . However , the applicant claimed that on arrival in GPE took her passport and travel documents and did not return them to her .", "The applicant lived for DATE at various houses belonging to LOC in GPE . She claimed that during this time he constantly warned her that she should not talk to people and that she could easily be arrested or otherwise come to harm in GPE . She was also shown violence on television and told that this could happen to her if she was not careful .", "NORP In DATE S. introduced the applicant to a man called PERSON who ran a business providing carers and security personnel for profit . The applicant attended a short carers’ training course and thereafter did some overnight shifts as a carer and as a security guard in a number of locations . The applicant asserted that on each occasion payment was made by the client to PERSON , who transferred a share of the money to S. ’s bank account in the apparent belief that he would pass it on to her . However , she claimed that she did not receive any payment for the work that she did .", "NORP In DATE the applicant began to work as a live - in carer for an elderly NORP couple ( “ Mr and PERSON ) . She found the role physically and emotionally demanding as PERSON suffered from Parkinson ’s disease and she was required to change his clothing , feed him , clean him and lift him as necessary . As a result , she was permanently on - call during DATE and night . On DATE she was given TIME leave but on these occasions she would usually be collected by PERSON and driven to S. ’s house for the afternoon . She accepted that after DATE she was permitted to take public transport but said she was warned that it was not safe and that she should not speak with anyone .", "The applicant claimed that the ORG CARDINAL PERSON and PERSON paid DATE for her services was sent directly to PERSON by cheque . A percentage of that money was passed by PERSON on the apparent understanding that it would be paid to her . However , she received no significant payment for her labour . Occasionally PERSON and PERSON would give the applicant presents or second - hand clothes and from time to time S. would give her GBP DATE when she went to his home on her DATE TIME of leave . It was sometimes suggested that PERSON was saving up her income for her education , but she denied that any money was ever given to her .", "In DATE Mr and PERSON went on a family trip to GPE . The applicant was unable to accompany them because she did not have a passport . In their absence , the applicant was taken to a house belonging to S. When he left for a business trip to GPE , she remained in the house with his partner , PERSON The applicant asserted that ORG effectively prevented her from leaving the house and warned her not to speak with anyone .", "On DATE the applicant left the house . She went to a local bank , where she asked someone to call the police . Before the police arrived , she collapsed and was taken to ORG , where she was diagnosed as HIV positive . She was also suffering from psychosis , including auditory hallucinations .", "The applicant remained in hospital for DATE . H. visited the applicant in hospital and the applicant claimed that during these visits she tried to persuade her to return to S. ’s house . In particular , she warned her that when she left the hospital she would have to pay for anti - retroviral medication and if she did not return to the house she would be “ on the streets ” .", "Following her discharge from hospital , the applicant was housed by the local authority . On DATE she made an application for asylum . The application was refused on DATE . The Secretary of ORG for ORG considered that the applicant could access protection in GPE to prevent further sexually motivated attacks . Moreover , he found that if she had been genuinely afraid of S. , she would have tried to escape from him earlier . The applicant appealed . Her appeal was dismissed on DATE . In dismissing the appeal , the Immigration Judge expressed serious concerns about the applicant ’s credibility and found much of her account to be implausible .", "NORP In DATE the applicant ’s solicitor wrote to the police and asked that they investigate her case . ORG , a police unit specialising in the investigation of human trafficking offences , commenced an investigation to ascertain whether or not she had been the victim of a criminal offence . The police interviewed the applicant on DATE . During the investigation , ORG sought the views of ORG in GPE , a multi - agency organisation which provided a central point of expertise in the field of human trafficking . However , the ORG advised that there was no evidence to substantiate the allegation that the applicant had been trafficked into GPE and observed that during her time working with PERSON and PERSON she had been well looked after .", "On DATE the police informed the applicant ’s former solicitor that there was “ no evidence of trafficking for domestic servitude in the interview ” .", "On DATE the applicant ’s current solicitor wrote to the police asking for the reasons for discontinuing the investigation . On DATE the police noted that ORG at ORG had advised that there was no evidence to substantiate the applicant ’s allegation that she had been trafficked into GPE . He further advised that while the applicant worked with the K family she was well looked after and given some money . There was , however , a dispute over money and it may have been that “ her cousin kept more than he should have done ” .", "On DATE the police informed the applicant ’s solicitor that “ a decision was taken not to proceed with the matter as there was no evidence that she [ the applicant ] had been trafficked ” . On DATE the police reiterated that following the interview “ it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted ” .", "On DATE the applicant ’s solicitor wrote to the police to ask them to consider prosecutions for other offences , including a jus cogens offence of slavery or forced labour .", "On DATE the applicant was assessed by ORG , a Government funded project providing housing and support for victims of trafficking . ORG concluded that she had been “ subjected to CARDINAL of the CARDINAL indicators of forced labour ” ( as identified by the ORG ) . In particular , her movement had been restricted to the workplace , her wages were withheld to pay a debt she did not know about , her salary was withheld for DATE , her passport was retained , and she was subjected to threats of denunciation to the authorities .", "On DATE the police began to conduct further investigations . On DATE the police noted that a statement had been obtained from the agent who arranged the applicant ’s work with Mr and PERSON ( presumably the man previously identified as PERSON ) . He stated that he had been introduced to the applicant by a person he believed to be her relative . He was supplied with a passport , a national insurance number and a criminal records check . The agent stated that the applicant came to the agreement with her relative that her wages would be paid to him . She only complained about this arrangement in or around DATE . The agent also stated that he feared the applicant ’s relative , who was a wealthy and powerful man well - connected to the NORP government .", "The police were unable to make contact with PERSON and PERSON Eventually they made contact with a member of the K family . However , no statement appears to have been taken as the ( unidentified ) woman told the police that she was leaving the country for medical treatment .", "On DATE the police informed the applicant ’s solicitor that the evidence did not establish an offence of trafficking . They noted that “ at this stage there is no evidence that would support exploitation of any kind ” .", "Police officers met with the applicant and her representative on DATE . The applicant ’s solicitor asserted that at this meeting a police officer indicated that it was ORG provisional view , given expressly without formal authority , that there was no offence in LANGUAGE criminal law which applied to the facts of the case . The solicitor further asserted that the police apologised for the cursory manner in which the case had been dealt with previously and confirmed that the applicant ’s account was credible .", "In an entry dated DATE the police noted that :", "“ It is clear that this female was not trafficked into the GPE for labour exploitation . She having applied for a visa in her real name to come to the GPE was refused . She then in agreement with her father then obtained a false passport with a forged visa stamp . These false documents were paid for by her father with the assistance of her uncle ...", "She willingly commenced work that was arranged by her uncle as a live - in carer for an elderly couple .", "The family at first wanted to pay her wages direct . But on the request of the victim she stated the money should be paid to the agency and then the money should then be transferred to her uncle ’s account who in turn would send the money back to GPE . This agreement was made in order to hide from the authorities the fact that the victim did not have a national insurance number . If money was paid to her then she would have had to pay tax and her false identity would have come to the notice of the tax office and then to the [ ORG ] . This would then lead to her arrest and eviction from the GPE ...", "... There is no evidence to show that this female is / was a victim of slavery or forced labour . She willingly worked and was in fact paid but she choose that the money should go via her uncle in order to conceal being in the GPE . It is basically a situation that one criminal ( her uncle ) has taken all the proceeds of their crime ... ”", "At that meeting the applicant ’s solicitor pointed out that PERSON had taken the applicant ’s identity documents from her upon her arrival in GPE and that this was grounds to prove possible forced labour . However , the police indicated that the documents taken from the applicant were false documents purchased by her and her father to enable her to enter GPE .", "On DATE the police spoke again with the applicant ’s solicitor . While they accepted that not every enquiry had been carried out , such as production orders relating to relevant bank accounts , it was important to ensure that the limited resources of ORG were used to best effect and they could not , therefore , carry out any further investigation into the applicant ’s complaints .", "The applicant was assessed by a clinical psychologist specialising in violence against women . The psychologist concluded in her CARDINAL DATE report that the applicant was “ suffering to a severe degree from a complex form of chronic Post - Traumatic Stress Disorder ( PTSD ) , in conjunction with a Major Depressive Disorder and she presents a moderate risk of suicide . ” In particular , she noted that the applicant presented “ in ways consistent with a victim of trafficking and forced labour , in the context of a history of sexual assaults ” .", "On DATE the police noted that they would write to the applicant ’s solicitor to confirm that “ this particular case does not fulfil the requirements of human trafficking as per GPE legislation and that legislation does not exist in relation to sole and specific allegations of domestic servitude where trafficking is not a factor ” .", "On DATE the police wrote to the applicant ’s solicitor in the following terms :", "“ I can confirm that after undertaking an investigation of the case including interviewing PERSON a decision has been made to conclude the investigation . This decision is based on several factors , one being that after consultation with the legal representative of ORG the circumstances of PERSON case did not appear to constitute an offence of trafficking people for the purposes of exploitation contrary to ORG .", "I am not aware of any specific offence of forced labour or servitude beyond that covered by section CARDINAL of ORG though regulation of working conditions are controlled by such areas as health and safety legislation and in certain instances LAW ... ”", "Section CARDINAL of the Coroners and Justice Act DATE , which received Royal Assent on DATE , made slavery , servitude and forced or compulsory labour criminal offences punishable by a fine and/or up to CARDINAL years’ imprisonment . Section CARDINAL came into force on DATE but did not have retrospective effect .", "Section CARDINAL of ORG etc . ) Act CARDINAL created the offence of trafficking people for exploitation . It provides that :", "“ ( CARDINAL ) A person commits an offence if he arranges or facilitates the arrival in GPE of an individual ( the “ passenger ” ) and—", "( a ) he intends to exploit the passenger in GPE or elsewhere , or", "( b ) he believes that another person is likely to exploit the passenger in GPE or elsewhere .", "( CARDINAL ) A person commits an offence if he arranges or facilitates travel within GPE by an individual ( the “ passenger ” ) in respect of whom he believes that an offence under subsection ( CARDINAL ) may have been committed and—", "( a ) he intends to exploit the passenger in GPE or elsewhere , or", "( b ) he believes that another person is likely to exploit the passenger in GPE or elsewhere .", "( CARDINAL ) A person commits an offence if he arranges or facilitates the departure from GPE of an individual ( the “ passenger ” ) and—", "( a ) he intends to exploit the passenger outside GPE , or", "( b ) he believes that another person is likely to exploit the passenger outside GPE .", "( CARDINAL ) For the purposes of this section a person is exploited if ( and only if)—", "( a ) he is the victim of behaviour that contravenes LAW ( slavery and forced labour ) ,", "( b ) he is encouraged , required or expected to do anything as a result of which he or another person would commit an offence under LAW CARDINAL ( c. CARDINAL ) or FAC ( GPE ) Order DATE ( NORP CARDINAL/CARDINAL ( N.I. CARDINAL ) ) ,", "( c ) he is subjected to force , threats or deception designed to induce ORG", "( i ) to provide services of any kind ,", "( ii ) to provide another person with benefits of any kind , or", "( iii ) to enable another person to acquire benefits of any kind , or", "( d ) he is requested or induced to undertake any activity , having been chosen as the subject of the request or inducement on the grounds that—", "( i ) he is mentally or physically ill or disabled , he is young or he has a family relationship with a person , and", "( ii ) a person without the illness , disability , youth or family relationship would be likely to refuse the request or resist the inducement .", "( CARDINAL ) A person guilty of an offence under this section shall be liable—", "( a ) on conviction on indictment , to imprisonment for a term not exceeding DATE , to a fine or to both , or", "( b ) on summary conviction , to imprisonment for a term not exceeding DATE , to a fine not exceeding the statutory maximum or to both . ”", "On DATE the Coroners and Justice Act DATE received ORG . Section CARDINAL , which will come into force “ on DATE as the Secretary of ORG may by order appoint ” , provides as follows :", "“ CARDINAL Slavery , servitude and forced or compulsory labour", "( CARDINAL ) A person ( D ) commits an offence if—", "( a ) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held , or", "( b ) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour .", "( CARDINAL ) In subsection ( CARDINAL ) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with LAW ( which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour ) .", "( CARDINAL ) A person guilty of an offence under this section is liable—", "( a ) on summary conviction , to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum , or both ;", "( b ) on conviction on indictment , to imprisonment for a term not exceeding DATE or a fine , or both .", "( CARDINAL ) In this section—", "“ Human Rights Convention ” means ORG agreed by ORG at GPE on DATE ;", "“ the relevant period ” means—", "( a ) in relation to GPE and GPE , DATE ;", "( b ) in relation to GPE , DATE . ”", "Articles CARDINAL and CARDINAL of the ORG provide as follows :", "“ Article CARDINAL", "Each Member of ORG which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period .", "With a view to this complete suppression , recourse to forced or compulsory labour may be had , during the transitional period , for public purposes only and as an exceptional measure , subject to the conditions and guarantees hereinafter provided .", "At the expiration of a period of DATE after the coming into force of this LAW , and when ORG of ORG prepares the report provided for in DATE below , the said ORG shall consider the possibility of the suppression of forced or compulsory labour in all its forms without a further transitional period and the desirability of placing this question on the agenda of the Conference .", "Article CARDINAL", "For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily .", "Nevertheless , for the purposes of this Convention , the term forced or compulsory labour shall not include--", "( a ) any work or service exacted in virtue of compulsory military service laws for work of a purely military character ;", "( b ) any work or service which forms part of the normal civic obligations of the citizens of a fully self - governing country ;", "( c ) any work or service exacted from any person as a consequence of a conviction in a court of law , provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals , companies or associations ;", "( d ) any work or service exacted in cases of emergency , that is to say , in the event of war or of a calamity or threatened calamity , such as fire , flood , famine , earthquake , violent epidemic or epizootic diseases , invasion by animal , insect or vegetable pests , and in general any circumstance that would endanger the existence or the well - being of the whole or part of the population ;", "( e ) minor communal services of a kind which , being performed by the members of the community in the direct interest of the said community , can therefore be considered as normal civic obligations incumbent upon the members of the community , provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services . ”", "The ORG has developed indicators of forced labour which provide a valuable benchmark in the identification of forced labour . These indicators are :", "“ CARDINAL . Threats or actual physical harm to the worker .", "Restriction of movement and confinement to the work place or to a limited area .", "Debt bondage : where the worker works to pay off a debt or loan , and is not paid for his or her services . The employer may provide food and accommodation at such inflated prices that the worker can not escape the debt .", "Withholding of wages or excessive wage reductions , that violate previously made agreements .", "Retention of passports and identity documents , so that the worker can not leave , or prove his / her identity and status .", "Threat of denunciation to the authorities , where the worker is in an irregular immigration status . ”", "GPE ratified LAW on DATE and it came into force on DATE .", "DATE defines “ trafficking in human beings \" as follows :", "“ ( a ) the recruitment , transportation , transfer , harbouring or receipt of persons , by means of the threat or use of force or other forms of coercion , of abduction , of fraud , of deception , of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person , for the purpose of exploitation . Exploitation shall include , at a minimum , the exploitation of the prostitution of others or other forms of sexual exploitation , forced labour or services , slavery or practices similar to slavery , servitude or the removal of organs ;", "( b ) The consent of a victim of “ trafficking in human beings ” to the intended exploitation set forth in subparagraph ( a ) of this article shall be irrelevant where any of the means set forth in subparagraph ( a ) have been used ;", "Article CARDINAL provides that :", "“ Each ORG shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law , the use of services which are the object of exploitation as referred to in DATE paragraph ( a ) of this Convention , with the knowledge that the person is a victim of trafficking in human beings . ”", "DATE , which GPE ratified in DATE , provides that :", "“ The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake , each in respect of the territories placed under its sovereignty , jurisdiction , protection , suzerainty or tutelage , to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery .", "It is agreed that :", "( CARDINAL ) Subject to the transitional provisions laid down in paragraph ( CARDINAL ) below , compulsory or forced labour may only be exacted for public purposes .", "( CARDINAL ) In territories in which compulsory or forced labour for other than public purposes still survives , the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice . So long as such forced or compulsory labour exists , this labour shall invariably be of an exceptional character , shall always receive adequate remuneration , and shall not involve the removal of the labourers from their usual place of residence .", "( CARDINAL ) In all cases , the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned . ”", "Recommendation DATE ) provides , as relevant , that :", "“ CARDINAL . In DATE a new form of slavery has appeared in LOC , namely domestic slavery . It has been established that CARDINAL women are sold DATE in the world .", "In this connection the ORG recalls and reaffirms DATE , paragraph CARDINAL of ORG ) , which prohibits slavery and servitude , and also the definition of slavery derived from the opinions and judgments of ORG and ORG .", "The ORG also recalls LAW ORG , which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment , and LAW , which proclaims the right of access to a court in civil and criminal matters , including cases where the employer enjoys immunity from jurisdiction .", "... ... ...", "It notes that the ORG passports are systematically confiscated , leaving them in a situation of total vulnerability with regard to their employers , and sometimes in a situation bordering on imprisonment , where they are subjected to physical and/or sexual violence .", "Most of the victims of this new form of slavery are in an illegal situation , having been recruited by agencies and having borrowed money to pay for their journey .", "The physical and emotional isolation in which the victims find themselves , coupled with fear of the outside world , causes psychological problems which persist after their release and leave them completely disoriented .", "... ... ...", "It regrets that none of ORG member states expressly make domestic slavery an offence in their criminal codes .", "It accordingly recommends that ORG ask the governments of member states to :", "i. make slavery and trafficking in human beings , and also forced marriage , offences in their criminal codes ;", "... ... ...", "vi . protect the rights of victims of domestic slavery by :", "a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds ;", "b. taking steps to provide them with protection and with social , administrative and legal assistance ;", "c. taking steps for their rehabilitation and their reintegration , including the creation of centres to assist , among others , victims of domestic slavery ;", "d. developing specific programmes for their protection ;", "e. increasing GPE time limits for bringing proceedings for offences of slavery ;", "f. establishing compensation funds for the victims of slavery . ”", "Recommendation DATE ( DATE ) further provides , as relevant , that :", "“ The ORG thus recommends that ORG :", "i. in general :", "a. bring the negotiations on ORG convention on action against trafficking in human beings to a rapid conclusion ;", "b. encourage member states to combat domestic slavery in all its forms as a matter of urgency , ensuring that holding a person in any form of slavery is a criminal offence in all member states ;", "c. ensure that the relevant authorities in the member states thoroughly , promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible ;", "d. recommend that member states review their immigration and deportation policies , granting victims of domestic slavery at least temporary residence permits ( if possible , in conjunction with work permits ) and allowing them to file complaints against their abusive husbands or employers if they wish to do so ;", "e. urge member states to provide an efficient support network for victims ( including emergency accommodation , health care , psychological and legal counselling services ) and attribute funds to non - governmental organisations working in this area ;", "PERSON ensure that victims of slavery are provided with reparation , including compensation , restitution , rehabilitation , satisfaction and guarantees of non - repetition ;", "ii . as concerns domestic servitude :", "a. elaborate a charter of rights for domestic workers , as already recommended in Recommendation CARDINAL ( DATE ) on domestic slavery . Such a charter , which could take the form of a ORG of ORG recommendation or even of a convention , should guarantee at least the following rights to domestic workers :", "– the recognition of domestic work in private households as “ real work ” , that is , to which full employment rights and social protection apply , including the minimum wage ( where it exists ) , sickness and maternity pay as well as pension rights ;", "– the right to a legally enforceable contract of employment setting out minimum wages , maximum TIME and responsibilities ;", "– the right to health insurance ;", "– the right to family life , including health , education and social rights for the children of domestic workers ;", "– the right to leisure and personal time ;", "– the right for migrant domestic workers to an immigration status independent of any employer , the right to change employer and to travel within the host country and between all countries of ORG and the right to the recognition of qualifications , training and experience obtained in the home country ;", "b. recommend the introduction of a system of accreditation for agencies placing domestic workers , which would commit these agencies to certain minimum standards , such as charging reasonable fees , tracking the employees they have placed and providing emergency help in cases of difficulty . Accredited agencies could have visa applications put forward on their behalf validated automatically ;", "c. ensure regular monitoring by appropriate authorities of the agencies accredited under the system referred to in sub - paragraph b above . ”" ]

[ "4" ]

[ "4-1" ]

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[ "The applicant lives in LOC .", "He is a serviceman employed by ORG ( ORG obrane PERSON ) . In DATE , as a member of the CARDINALth ORG of ORG , the applicant occasionally participated in demining operations in the newly liberated territories in GPE .", "On the basis of the Decision of the Minister of Defence of DATE ( see paragraph CARDINAL below ) , he was entitled to a special DATE allowance for such work .", "NORP Since the allowances had not been paid to him , on CARDINAL DATE the applicant brought a civil action against the ORG in ORG ( PERSON ) , seeking payment of the unpaid allowances . He sought in total the sum of CARDINAL NORP kunas ( HRK ) together with accrued statutory default interest .", "The ORG responded that his action was time - barred because the DATE limitation period for employment - related claims had expired .", "NORP In reply , the applicant argued that on several occasions he had asked his commanding officer why the allowances had not been paid . His commanding officer had made enquiries of his superior , who had then contacted ORG PERSON stožer ORG snaga PERSON ) . Eventually , the applicant had been informed through his commanding officer that his claims were not being disputed and that they would be paid once the funds for that purpose had been allocated in the ORG budget . Relying on that information , the applicant argued that the ORG had acknowledged the debt within the meaning of section CARDINAL of LAW and that the running of the statutory limitation period had thus been interrupted .", "The court heard the applicant 's commanding officer PERSON and the head of ORG of ORG , Brigadier I.P.", "B.B. , who had been the commander of the CARDINALth ORG DATE and DATE , testified that lists of servicemen who carried out demining work , together with DATE worked and the corresponding amount of allowances , had been submitted to him by platoon commanders within the brigade . As the commander of the unit , he had signed them after checking them for accuracy and had then submitted them for certification to the commander of FAC . After the commander of ORG had signed the lists , they had been submitted for payment to ORG in ORG . He had informed the applicant that the lists had been submitted for payment . When the allowances were not paid , the applicant and other members of the unit had approached him , as their commanding officer and the only person they were authorised to approach under internal regulations , asking him when the payment would be made . In their name he had then contacted the commander of ORG . Each time he had been informed that the right to receive payment and its amount were not being disputed and that payment would follow after the funds had been allocated for that purpose . Each time he had transmitted that information to the members of his unit , including the applicant .", "I.P. had since DATE been the head of ORG of ORG , which was in charge of financial matters for the CARDINALrd LOC . He testified that he had been aware that members of ORG had been carrying out demining work up to DATE and that the commander of FAC had been submitting lists of servicemen who carried out demining work for payment . Since payment was not forthcoming when the allowances fell due , ORG had informed the relevant financial departments that the allowances had not been paid because no funds had been allocated in the budget for that purpose , whereas no instructions had been given to dispute the right to receive allowances or their amount .", "On DATE ORG ruled in favour of the applicant and ordered the ORG to pay him the allowances he sought . The relevant part of that judgment read as follows :", "“ [ It ] is undisputed that ... when each instalment became due , up to DATE , the plaintiff asked his commanding officer when the payment would be made , because according to the internal organisation of [ ORG ] that was the only person he was authorised to approach , and that [ his ] commanding officer took this up on behalf of the plaintiff with the ORG of the CARDINALrd LOC and that the commander of FAC informed [ the plaintiff 's ] commanding officer that the right to receive payment and its amount were not in dispute , and that payment would follow after the funds had been allocated in the budget , because currently there were none ; the commanding officer passed this information on to the plaintiff .", "The foregoing , in the view of this court , represents acknowledgement of the debt within the meaning of section CARDINAL of LAW , because ... the plaintiff was informed by the person authorised to act on behalf of the respondent that the right to receive payment and its amount were not in dispute and that payment would follow once funds had been allocated in the budget . ”", "Following an appeal by the ORG , on DATE the ORG ( Županijski sud u PERSON ) quashed the first - instance judgment and remitted the case . It held that the first - instance court had failed to establish : ( a ) who in this case was the person authorised to acknowledge the debt on behalf of ORG , and ( b ) whether the signed and certified lists of the members of the applicant 's unit who had carried out demining work , indicating DATE on which they had done such work and the corresponding amount of DATE allowances , processed by ORG , in fact constituted requests for payment and therefore an indirect acknowledgment of the debt .", "In the resumed proceedings , ORG again heard the head of ORG of ORG , Brigadier I.P. , who testified that the certified lists of servicemen who had carried out demining work constituted requests for payment of the allowances . He further stated that after receiving the lists ORG had checked them for accuracy and submitted them together with the requisite form , which in fact constituted a request for payment , to ORG of ORG in GPE . According to ORG , ORG had been authorised to check the lists and could have returned them to ORG if the request for payment of allowances or their amount had been invalid , which they had not done . After ORG had submitted the lists and request for payment , the head of ORG had informed him that payment would follow once funds had been allocated in the budget for that purpose . Had there been funds , no further action would have been required for the amount requested to be transferred to the applicant 's bank account .", "In these resumed proceedings , the respondent argued for the first time that , in accordance with the internal regulations of ORG , the person authorised to acknowledge the debt on behalf of ORG was the head of its ORG before a court action had been brought , and afterwards the head of ORG .", "On DATE ORG again ruled in favour of the plaintiff . The relevant part of that judgment read as follows :", "“ ORG certified the above - mentioned payment lists ... by first checking that the payment and its amount were justified , and then sent it , together with the [ requisite ] form , namely the payment request form , to ORG ... in GPE . [ That GPE ] , by not returning the lists and the request for payment to ORG , accepted them as justified and well - founded . [ ORG ] had to pay the amounts [ sought ] because ORG did not have ready money . After receiving those [ lists and ] the request for payment , ORG had informed ORG that payment would follow once funds had been allocated in the ORG budget , of which the plaintiff was notified and which was explained to him by his commanding officer between the [ time the instalments ] became due and DATE .", "The foregoing , in view of this court , represents acknowledgement of the debt because , by certifying the payment lists with the payment request form and informing the plaintiff thereof as well as of the fact that payment would follow once funds had been allocated in the ORG budget , the plaintiff , as the creditor , was informed by the respondent , as the debtor , in a clear and unequivocal manner , that the claim at issue , that is , the respondent 's debt , was being acknowledged . ”", "Following an appeal by the ORG , on DATE the ORG again quashed the first - instance judgment and remitted the case . It held that from the case file it followed that in accordance with the internal regulations of ORG the person authorised to acknowledge the debt on behalf of ORG had been the head of its ORG before the action was brought , and afterwards the head of ORG . Therefore , the applicant 's commanding officer could not have acknowledged the debt on behalf of ORG .", "In the resumed proceedings , ORG , in order to establish who was the person authorised to acknowledge the debt on behalf of ORG , heard the head of ORG of ORG , and examined the internal regulations of the Ministry .", "NORP The head of ORG , GPE , testified that the person authorised to acknowledge the debt on behalf of ORG had indeed been the head of its ORG before the action was brought and the head of its ORG afterwards . He also testified that ORG request for payment of DATE allowances for demining work had been deemed invalid by a letter of CARDINAL DATE because ORG of DATE applied only to the GPE region of GPE .", "On DATE ORG ruled for the third time in favour of the plaintiff . The relevant part of that judgment read as follows :", "“ In line with the internal organisation of [ the Ministry ] , the plaintiff , after [ the DATE allowances had become due but ] payment had not been forthcoming , had been addressing his requests for payment to his immediate superior , that is to the commander of his unit , whereupon he [ the commander ] had on behalf of the plaintiff been contacting the commander of FAC of ORG . The commander of LOC had been forwarding such requests to ORG , which had been replying that the right to receive payment and its amount were being acknowledged , and that payment would follow once funds had been allocated for that purpose . The commander of FAC had been sending that information to the commander of the [ plaintiff 's ] unit , who had been notifying the plaintiff of this DATE and DATE , when the commander of the unit received the last information from the commander of the CARDINALrd Operational Zone .", "In this way authorised and responsible persons and the department [ within the Ministry ] , in particular the commander of the CARDINALth ORG , the commander of LOC ... and the competent ORG , which certified and acknowledged the amounts of DATE allowances as costs of [ the Ministry ] , and in the form of a request for transfer of funds corresponding to the amounts sought ... , submitted them to [ ORG ] , acknowledged the debt to the plaintiff in a clear and unequivocal manner .", "Accordingly , the respondent 's argument raised in the course of the proceedings that only the head of [ ORG ] or the head of ORG were authorised to acknowledge the debt on behalf of ORG , is unfounded because this does not follow from the evidence taken , especially from the documents provided by the respondent , in particular from [ the internal regulations of ORG ] , and [ because ] the time - limits fixed by the court at the request of the respondent 's representative for furnishing evidence [ in support of that argument ] had expired .", "...", "... from the letter of DATE it does not follow that the request of the [ Split ] ORG had been regarded as invalid . [ Rather ] , it was only returned to the [ ORG ] GPE for additional examination and checking , and it was suggested that afterwards ORG should decide on the right to receive payment of the allowances at issue .", "Consequently , in the light of the foregoing , this court indisputably established that authorised persons of the respondent had continued , throughout the entire period in dispute , that is , from the time the claims had become due until DATE , to inform the plaintiff in a clear and unequivocal manner that the respondent did not dispute [ his ] right to receive DATE allowances in the amount sought . [ T]hereby , the respondent acknowledged the debt to the plaintiff within the meaning of section CARDINAL of LAW , so it is clear that the statutory limitation period did not expire , because its running was interrupted by the acknowledgment of the debt . ”", "Following an appeal by the ORG , on DATE the ORG reversed the first - instance judgment by dismissing the applicant 's action . The relevant part of that judgment read as follows :", "“ On the basis of the evidence taken , the first - instance court established the following relevant facts :", "- that the plaintiff , as a member of the CARDINALth ORG of ORG at the material time , under the command of the CARDINALrd Operational Zone of ORG , had occasionally carried out demining work during DATE ;", "- that the Decision [ of the Minister of Defence of DATE ] had established the right of the ... members of ORG to a special DATE allowance for demining work ;", "- that , in accordance with the [ above ] Decision , the commander of the CARDINALth ORG had been compiling DATE lists of members of the unit who in DATE had carried out demining work , and had specified DATE spent on demining work and the corresponding amounts of DATE allowances due , and that [ those lists ] had been certified and co - signed by the commander of FAC of ORG and submitted to ORG of the [ ORG ] ;", "- that the plaintiff , when the special DATE allowances were not paid , on numerous occasions approached the commander of his unit , in accordance with the hierarchical organisation of the [ Ministry ] ... with a query as to when the payment would be made , and that [ his commander ] , after making enquiries of the command of FAC , informed him that his claims were not in dispute ... and that payment would follow after funds had been allocated for that purpose .", "Relying on these facts , the first - instance court found that that the authorised persons of the respondent ( the commander of the CARDINALth ORG , the commander of LOC of ORG , as well as ORG – which had certified and acknowledged the amount of the plaintiff 's special DATE allowances as costs of the respondent and had submitted it in the form of a request to the [ ORG of the [ Ministry for transfer of the amount sought ] ) DATE had , throughout the entire period in dispute , until DATE , unequivocally informed the plaintiff that the respondent did not dispute [ his ] right to receive DATE allowances in the amount sought , and that the respondent had thereby acknowledged the debt to the plaintiff within the meaning of section CARDINAL of LAW , so the statutory limitation period had not expired .", "However , having regard to the evidence taken before the first - instance court , this court considers the above finding of the first - instance court erroneous . [ This is so ] because , contrary to the view of the first - instance court , and in accordance with the hierarchical organisation of the [ Ministry ] , the persons authorised to acknowledge the debt on behalf of the [ Ministry ] were the head of [ its ORG – which ORG , in accordance with the [ ORG ] internal regulations , was authorised to ultimately process and check the requests for payment of the plaintiff 's claims submitted by ORG ( until the action was brought in this case ) DATE and the head of the [ ORG ( during the present proceedings ) , as the respondent correctly argued ... as well as the other authorised persons who were , in accordance with the hierarchical organisation of the [ Ministry ] , superior to [ them ] .", "That being so , and having regard to the facts established in the proceedings before the first - instance court , it does not follow that it was precisely those authorised persons mentioned above who acknowledged the debt by making a declaration to the plaintiff as the creditor , nor that the debt was acknowledged in some indirect manner within the meaning of paragraph CARDINAL of section CARDINAL of LAW . [ O]n the contrary , the request of ORG to transfer funds [ corresponding to the amounts of DATE allowances sought ] ( which request , together with signed and certified lists compiled by ORG , can not be considered an acknowledgement of the debt within the meaning of section CARDINAL of LAW ) ... was regarded as invalid by ORG and returned to ORG for further checking and additional examination ( ... ) . [ T]herefore , in the instant case the respondent did not acknowledge the plaintiff 's claims in any manner prescribed by law that would lead to an interruption of the statutory limitation period . [ S]ince DATE instalment of special DATE allowances had become due in DATE , and the action in this case had been brought on DATE , the [ respondent 's ] plea that the claims at issue were statute - barred , ... is well - founded because the DATE statutory limitation period set forth in section CARDINAL of LAW in respect of the plaintiff 's claims , which arose from his employment relationship with the respondent , had expired in the instant case . ”", "The applicant then lodged a constitutional complaint against the second - instance judgment , alleging violations of his constitutional rights to equality before the courts and to a fair hearing . He argued that his claim for special DATE allowances for demining work was not statute - barred , because ORG had on several occasions acknowledged the debt , thereby interrupting the running of the statutory limitation period , and that the Šibenik ORG had not relied on any provision of substantive law which would justify dismissal of his action .", "On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant 's constitutional complaint and served its decision on his representative on DATE .", "The relevant part of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) ) provides as follows :", "“ All citizens of GPE and foreigners shall be equal before the courts and other state or public authorities . ”", "“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”", "“ CARDINAL . The right of ownership shall be guaranteed .", "Ownership implies duties . Owners and users of property shall contribute to the general welfare . ”", "“ CARDINAL . Ownership may be restricted or taken in accordance with the law and in the interest of GPE subject to payment of compensation equal to the market value .", "The exercise ... of the right of ownership may , on an exceptional basis , be restricted by law for the protection of the interests and security of GPE , nature , the environment or public health . ”", "“ International agreements in force , which were concluded and ratified in accordance with the LAW and made public , shall be part of the internal legal order of GPE and shall have precedence over the [ domestic ] statutes . ... ”", "In its decisions nos . U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL/CARDINAL ) and U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL ) ORG held that all rights guaranteed in the LAW and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of LAW .", "The relevant part of LAW on LAW ( PERSON o PERSON , ORG no . CARDINAL of DATE – “ the LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE ) , which entered into force on DATE , reads as follows :", "“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the decision of a state authority , local or regional self - government , or a legal person invested with public authority , on his or her rights or obligations , or as regards suspicion or accusation of a criminal offence , has violated his or her human rights or fundamental freedoms , or right to local or regional self - government , guaranteed by LAW ( “ constitutional right ” ) ...", "If another legal remedy is available in respect of the violation of the constitutional rights [ complained of ] , the constitutional complaint may be lodged only after this remedy has been exhausted .", "In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law [ revizija ] are available , remedies shall be considered exhausted only after the decision on these legal remedies has been given . ”", "“ A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [ together ] with an indication of the relevant provision of the LAW guaranteeing that right ... ”", "“ ... [ t]he ORG shall examine only the violations of constitutional rights alleged in the constitutional complaint . ”", "On DATE the ORG delivered a decision , no . ORG ( Official Gazette no . CARDINAL ) in a case where the complainant relied in her constitutional complaint on ORG and CARDINAL(CARDINAL ) of the LAW , neither of which , under that court 's jurisprudence , contained constitutional rights . ORG nevertheless allowed the constitutional complaint , finding violations of ORG , CARDINAL ) and CARDINAL of the LAW , on which the complainant had not relied , and quashed the contested decisions . In so deciding it held as follows :", "“ Therefore , a constitutional complaint can not be based on either of the constitutional provisions stated [ by the complainant in her constitutional complaint ] .", "However , the present case concerns , as will be explained further , a specific legal situation as a result of which this court , despite [ its ] finding that there are not , and can not be , violations of the constitutional rights explicitly relied on by the complainant , considers that there are circumstances which warrant quashing [ the contested ] decisions .", "...", "Namely , it is evident from the constitutional complaint and the case file that there have been violations of [ constitutional ] rights , in particular those guaranteed by LAW , equality before the law ) , LAW paragraph CARDINAL ( the guarantee of judicial review of decisions of state and other public authorities ) and LAW before the courts and other state or public authorities ) of the LAW ... ”", "Section CARDINAL of LAW ( Zakon o obveznim odnosima , ORG of ORG nos . CARDINAL , DATE and DATE , and ORG no . CARDINAL/CARDINAL with subsequent amendments ) provided as follows :", "STATUTE OF LIMITATIONS", "GENERAL PROVISIONS", "General rule", "Section CARDINAL", "“ ( CARDINAL ) The right to request performance of an obligation shall be extinguished on the expiration of a statutory limitation period .", "( CARDINAL ) ...", "( CARDINAL ) A court shall not take a statutory limitation period into account of its own motion if the debtor did not plead it . ”", "INTERRUPTION OF A STATUTORY LIMITATION PERIOD", "Acknowledgement of a debt", "Section CARDINAL", "“ ( CARDINAL ) The running of a statutory limitation period shall be interrupted when the debtor acknowledges his or her debt .", "( CARDINAL ) A debt may be acknowledged not only by a statement [ that is , a declaration ] to the creditor but also in an indirect manner , such as by making a payment , paying interest or providing security ... ”", "In interpreting section CARDINAL of LAW ORG has consistently held that acknowledgement of a debt capable of interrupting a statutory limitation period , regardless of whether it has been made in a direct or indirect manner , has to be done unequivocally and by the persons authorised to act on behalf of the debtor ( see , for example , decisions nos . PERSON CARDINAL/CARDINAL - CARDINAL of DATE , PERSON CARDINAL/CARDINAL - CARDINAL of DATE , PERSON of DATE , PERSON of DATE , and PERSON of DATE ) .", "On DATE ORG delivered a judgment , no . PERSON CARDINAL/CARDINAL - CARDINAL , in a case in which the plaintiffs sued the ORG seeking payment of unpaid salaries for the period during which they had been receiving medical treatment and held captive by the enemy , respectively . The question arose whether the letter of ORG , in particular , the General Staff of ORG , of CARDINAL DATE , confirming that the plaintiffs had been members of their military unit and had appeared on its payroll but had not collected their salaries in the above - mentioned period , constituted acknowledgment of the debt . The lower courts dismissed the plaintiffs ' action , finding that the letter had not constituted acknowledgement of a debt capable of interrupting the statutory limitation period . In dismissing an appeal on points of law ( revizija ) by the plaintiffs and upholding the lower courts ' judgments , ORG held as follows :", "“ From [ the letter of CARDINAL DATE ] it only follows that the plaintiffs were members of a certain unit at a certain time and that they did not receive a salary for that period . Such [ a letter ] can not per se constitute an acknowledgment of the debt within the meaning of section CARDINAL of LAW and interruption of the statutory limitation period . That is a general statement which can not be considered as an acknowledgment of the debt . The ... letter indicates that the debt may exist but it does not constitute an acknowledgement by the debtor that the debt [ indeed ] exists , that is , acknowledgment that the debtor has [ an obligation ] to settle the debt or that the debtor will settle it . The statement of facts by the debtor , on the basis of which it could be concluded that the debt exists , does not constitute acknowledgment of the debt [ capable of ] interrupting the statutory limitation period . For the acknowledgement of the debt to result in the interruption of the statutory limitation period , it has to be explicit and specific so that the debtor 's will to settle the existing debt is unequivocally expressed . ”", "On DATE ORG delivered a decision , no . Rev-CARDINAL/CARDINAL - CARDINAL , in a case where the plaintiff company sued the ORG seeking payment of a certain amount of money . The question arose whether a letter of CARDINAL DATE signed on behalf of ORG of ORG by the head of its ORG informing the plaintiff that its claim had been recorded with ORG but that funds had not been allocated to satisfy that claim , as well as a letter of DATE signed on behalf of ORG of ORG by the head of its ORG notifying the plaintiff that ORG would settle its debt by transferring the money to the plaintiff company 's giro account upon transfer of the funds to ORG from the ORG budget , amounted to acknowledgment of the debt . The lower courts ruled in favour of the plaintiff , finding that the above - mentioned letters had constituted acknowledgement of a debt capable of interrupting the statutory limitation period . ORG allowed an appeal on points of law by the ORG , quashed the lower courts ' judgments and remitted the case . In so deciding ORG held as follows :", "“ In the contested judgments no reasons were given for the finding that the head of ORG , who had signed the letter of CARDINAL DATE , would be authorised to acknowledge the debt ( even assuming that the mere recording of the claim and its amount with ORG of ORG could be considered an acknowledgment of the debt ) .", "... the letter of DATE [ containing ] the statement that its [ the ORG 's ] debt would be settled by transferring the money to the [ plaintiff company 's ] giro account , but without establishing the amount of the debt that the respondent considered well - founded , and without establishing whether ... the head of ORG ( who signed the letter ) was authorised to give such a statement , can not , at least for the time being , be considered an acknowledgment of the debt .", "In this court 's view , an acknowledgement of a debt within the meaning of section CARDINAL paragraph CARDINAL of LAW can be made by the debtor personally or through an authorised person ( if the debtor is a legal entity ) . It follows from the foregoing that declarations of unauthorised persons acknowledging a debt on behalf of a debtor can not produce for the debtor any legal effects of a valid acknowledgement of a debt . It also has to be noted that an acknowledgement of a debt must not be contrary to peremptory norms [ jus cogens ] .", "For these reasons , until it is established whether , and on the basis of which legal document , the head of ORG and the head of ORG were persons authorised to acknowledge the debt , there can be no conclusions as to the legal significance of the letters of CARDINAL DATE and DATE . ”", "According to the views expressed in NORP legal doctrine , a right is not extinguished by the expiration of a statutory limitation period . Rather , the creditor only loses the right to seek its enforcement through the courts . Therefore , a debtor remains a debtor even after a statutory limitation period has expired . For that reason , if a debtor pays a creditor after the expiry of a statutory limitation period , he or she can not claim the amount paid back ( on account of unjust enrichment ) because he or she paid an existing debt", "Section CARDINAL of LAW ( Zakon o radu , ORG nos . CARDINAL , CARDINAL ( corrigendum ) , CARDINAL ( corrigendum ) , CARDINAL , CARDINAL , CARDINAL , PERSON , DATE ( corrigendum ) and CARDINAL ) provides as follows :", "Statutory limitation period for an employment - related claim", "Section CARDINAL", "“ Unless otherwise provided in this or another statute , an employment - related claim expires after DATE . ”", "The relevant part of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) provides as follows :", "“ The court shall proceed on an action even if the plaintiff has not indicated the legal basis for his or her claim ; and if the plaintiff has indicated the legal basis the court shall not be bound by it . ”", "“ ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW or additional protocols thereto ratified by GPE , a party may , within DATE of the judgment of ORG becoming final , file a petition with the court in GPE which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .", "( CARDINAL ) The proceedings referred to in paragraph CARDINAL of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .", "( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom . ”", "Decision of the Minister of Defence on Payment of Special Daily Allowances for Carrying Out Mining and Demining Works ( ORG o isplatama posebnih dnevnica za vrijeme izvođenja radova na miniranju i deminiranju , unpublished ) of DATE reads as follows :", "“ CARDINAL . Permanent and reserve members of ORG carrying out mining and demining works shall have the right to special DATE allowances .", "Special allowances shall be calculated in the amounts prescribed by the Decision on the Amount of Daily Allowance for Official Journeys and ORG from ORG [ that is , CARDINAL NORP kunas ( HRK ) at the time ] , and so from the time of departure to [ carry out ] mining and demining works , according to the following criteria :", "( a ) the entire DATE allowance for TIME spent on mining and demining works , including periods of CARDINAL to TIME [ that is , QUANTITY ] ;", "( b ) half the DATE allowance for periods of TIME .", "The lists of persons entitled to special DATE allowances , with details , shall be compiled by the commander at independent battalion level or higher , and shall be certified by the commander of the operational zone ... The certified list shall be submitted for payment to the regional finance department on whose territory mining and demining works have been carried out , at the latest on DATE in respect of DATE .", "This Decision shall enter into force on DATE of its adoption , and shall be applicable from DATE . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant called an ambulance for her son , who was DATE at the time . He had a fever and was complaining of chest pains . The paramedic examined him , and , assuming that he was suffering from intercostal neuralgia , administered a pain - killing injection .", "On DATE Mr Korogodin was examined by a general practitioner , who believed him to be suffering from pyelonephritis and advised him to go to hospital . At the hospital PERSON underwent a medical examination including an ECG of his kidneys and liver and an GPE of his lungs . The doctors who examined him confirmed the diagnosis of intercostal neuralgia . PERSON was discharged from hospital .", "On DATE the general practitioner examined Mr Korogodin again and diagnosed him with osteochondrosis . Subsequently , PERSON , a doctor whom the applicant 's family knew , examined PERSON , diagnosed him with pneumonia and urged him to go to hospital . Upon arrival at FAC in GPE , PERSON was taken to an intensive care unit .", "On DATE Mr Korogodin died in hospital . According to the autopsy , the cause of his death was cardiovascular deficiency provoked by pneumonia and purulent pleurisy .", "On DATE and DATE the applicant asked the local prosecutor 's office to open a criminal investigation into the matter , alleging that the doctors ' negligent failure to diagnose her son correctly at the onset of his disease had caused his death .", "NORP In response to the applicant 's complaints , the assistant prosecutor of the town of GPE , conducted an inquiry . Within its framework , the regional department of public health formed a commission which comprised specialists from the medical institutions where the applicant 's son had undergone treatment . The commission questioned the doctors who had treated PERSON and concluded that the doctors had provided competent medical service .", "On DATE the applicant submitted PERSON medical history file and PERSON examination results . An additional inquiry ensued . On DATE the applicant lodged another complaint with the prosecutor 's office .", "On DATE the assistant prosecutor refused to open a criminal investigation against the doctors for lack of corpus delicti . He noted that the death of the applicant 's son had resulted from the rapid development of pneumonia coupled with weakened immunity . The assistant prosecutor referred to the findings made by the commission set up by the regional department of public health . The applicant appealed to a superior prosecutor .", "On DATE the regional prosecutor in charge of the investigation quashed the decision of DATE and ordered a criminal investigation into the matter . The prosecutor noted , in substance , that the commission had not been impartial . He referred to the commission 's findings as inconclusive and contradictory .", "On DATE the applicant was recognised as a victim of the crime under investigation . She was advised of her rights , including the right to submit a civil claim against the hospital .", "On DATE the investigator commissioned a forensic medical expert report to determine whether PERSON had received proper medical treatment .", "On DATE the investigator found it impossible to identify those responsible and suspended the investigation into the matter . On DATE the district prosecutor declared the decision of CARDINAL DATE unlawful and quashed it .", "On an unspecified date the forensic medical experts completed the report and submitted their findings to the prosecutor 's office . The experts discerned no causal link between Mr PERSON 's death and the treatment administered .", "On DATE the investigator discontinued the criminal proceedings for lack of corpus delicti . He based his findings on the medical expert report and statements made by the doctors who had treated Mr Korogodin . The applicant appealed to a superior prosecutor .", "On DATE the town deputy prosecutor quashed the decision of DATE . The deputy prosecutor found that the experts had failed to examine the issue of whether the medical treatment that Mr Korogodin had undergone had been adequate . He referred to the experts ' statement that a prompt diagnosis at an early stage of a severe disease could prevent a patient 's death . He further noted that the medical expert , P. , opined that the X - ray examination had not been properly conducted . Finally , the prosecutor indicated which steps the investigator should now take , including , but not limited to , examining the circumstances of the X - ray examination that Mr Korogodin had undergone .", "On DATE the investigator yet again discontinued the criminal proceedings for lack of corpus delicti .", "On DATE the regional prosecutor in charge of the investigation quashed the decision of CARDINAL DATE owing to the investigator 's failure to fully determine the circumstances of Mr PERSON '", "On DATE a new report was prepared by a forensic medical expert bureau in Kursk . The experts noted certain errors committed by the doctors prior to PERSON committal to hospital . They further opined that he had received adequate treatment in hospital albeit that certain additional measures could have been taken by the hospital 's personnel .", "On DATE the investigator found it impossible to identify those responsible and suspended the investigation into the matter .", "On DATE the inter - district prosecutor quashed the decision of DATE as unsubstantiated . The investigation was resumed DATE .", "On DATE the inter - district prosecutor discontinued the criminal proceedings for lack of corpus delicti . His findings were based on witnesses ' testimonies , including those provided by the applicant and the doctors who had treated PERSON , and the results of the medical expert reports . The prosecutor concluded that PERSON had not recovered from previous illnesses which had negatively affected his immune system and the rapid development of pneumonia could not have been prevented in the circumstances .", "On DATE ORG of GPE sent a letter to ORG noting that the investigation into Mr PERSON 's death had not been complete . It was further recommended that a new forensic medical evaluation be commissioned in order to reconcile the differences in the opinions contained in CARDINAL earlier medical forensic expert reports .", "On DATE the regional deputy prosecutor quashed the decision of CARDINAL DATE .", "On DATE the investigator commissioned a new forensic medical expert report .", "On DATE the NORP ORG of ORG completed a comprehensive forensic medical expert report . The experts noted that PERSON had been wrongly diagnosed prior to his committal to hospital . They opined , nevertheless , that the errors in question had not been the cause of his death . PERSON had died as a result of the “ severity , aggressiveness and rapid development of the disease ” . Lastly , they did not discern that the doctors and paramedics at the medical institutions providing treatment to PERSON had failed to duly perform their professional duties .", "On DATE the investigator discontinued the criminal proceedings for lack of corpus delicti on the basis of the witnesses ' testimonies and medical expert reports . The applicant appealed .", "On DATE ORG of GPE allowed the applicant 's complaint and ordered the local prosecutor 's office to resume the investigation into the matter .", "On DATE the regional deputy prosecutor found the investigation to be incomplete and quashed the decision of DATE .", "On DATE the investigator discontinued the proceedings for lack of corpus delicti . The investigator based his findings on statements made by CARDINAL witnesses , including the applicant , the doctors who had treated PERSON , their superiors and the medical experts , and on medical documents , including CARDINAL forensic medical expert reports . The applicant appealed .", "Her complaints were dismissed by ORG and ORG of GPE on DATE and DATE respectively .", "On DATE the applicant brought a civil claim for damages against the medical institutions where her son had undergone medical treatment . She alleged , inter alia , that her son had died due to the doctors ' failure to diagnose him correctly .", "On DATE the court commissioned a forensic medical expert report . The report was completed on DATE . The experts concluded that there was no causal link between the deficiencies in the medical treatment PERSON had received and his death . They further opined that the medical treatment had not caused any harm to Mr PERSON 's condition . His death had resulted from the pathological development of pneumonia .", "On DATE the ORG of Orel dismissed the applicant 's claims . The court found that the doctors ' failure to diagnose Mr Korogodin correctly on DATE and a delay in his committal to hospital had not had an adverse impact on his condition . The diagnostics methods and treatment employed by the doctors had been correct but could not have prevented PERSON death . The court based its findings on the testimonies given by the applicant , the medical professionals involved in her son 's treatment , the CARDINAL forensic medical expert reports and the materials of the criminal investigation .", "On DATE the Orel Regional Court upheld the judgment of CARDINAL DATE on appeal .", "On DATE the applicant sued ORG for damage caused allegedly by the inadequate and lengthy investigation into her son 's death .", "On DATE the ORG of Orel dismissed the applicant 's claims .", "On DATE the ORG upheld the judgment of DATE on appeal .", "The relevant provisions on liability provide as follows :", "Article CARDINAL . Grounds for health damage compensation", "Those liable for causing damage to persons ' health shall pay the latter compensation for damage in the amount and pursuant to the procedure as set forth by legislation of GPE ...", "Article DATE . Liability of medical professionals and pharmacists for infringement of persons ' rights in the domain of public health", "In the event of a violation of persons ' rights in the domain of public health caused through the negligent failure of a medical professional or a pharmacist to carry out their professional duties and resulting in harm to health or death , compensation for damage shall be recovered in accordance with LAW ...", "The compensation of the damage shall not excuse the medical professionals and pharmacists from disciplinary , administrative or criminal liability as provided for in [ federal and regional ] legislation .", "The general provisions on liability for damage read as follows :", "Article ORG . General grounds for liability for causing harm", "“ CARDINAL . Damage inflicted on a person or on the property of an individual ... shall be compensated in full by the tortfeasor ...", "NORP The tortfeasor shall be released from liability to compensate the damage if he proves that the damage was inflicted through no fault of his own ... ”", "Article CARDINAL § CARDINAL of LAW provides that a person who negligently causes the death of another person through the failure to duly carry out his professional responsibilities , shall be criminally liable and may be sentenced to a restriction of liberty or imprisonment for DATE with or without a forfeiture of the right to practise the profession during the said period .", "If criminal proceedings are discontinued at the investigation stage , an aggrieved person who joined the proceedings as a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that ( a ) the alleged offence had not been committed ( otsutstvie sobytiya prestupleniya ) or ( b ) the suspect had not been involved in its commission ( LAW and LAW ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) ) .", "If the defendant is acquitted by the trial court on the ground that ( a ) the alleged offence was not committed or ( b ) the defendant was not involved in its commission , the trial court will dismiss the civil claim . If the defendant is acquitted for lack of corpus delicti ( LAW ( CARDINAL ) ) , the trial court will disallow the civil claim but it may be lodged again in civil proceedings ( LAW ) ." ]

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[ "The facts of the case , as set out by the parties , can be summarised as follows .", "The disputed land , having a surface area of CARDINAL sq.m . , including a dwelling house and business premises , is situated in GPE , on the territory of the former GPE ( GPE ) .", "Under a notarially - registered agreement of CARDINAL DATE , the PERSON brothers , who were NORP , sold this land for MONEY ( ORG ) to an industrialist , PERSON The PERSON brothers subsequently ORG GPE and took refuge in GPE .", "After DATE , the land , which was situated in the NORP - occupied zone , was temporarily requisitioned by the ORG .", "On DATE the President of the Land of GPE ( GPE ) appointed an administrator and indicated that the land , which had been sold under duress , fell within the scope of LAW ( Wiedergutmachungsgesetz ) of DATE . It was thus supposed to be returned to the former owners or to their heirs .", "Subsequently the restitution procedure was suspended , with a view to the amendment of LAW and to the systematic expropriation of the plots of land concerned .", "On DATE the administrator of the disputed property entered into a friendly settlement on behalf of the PERSON brothers with the widow and heir of PERSON , under which the latter would remain the owner of CARDINAL of the land and the PERSON brothers would obtain the remaining CARDINAL , whilst in return waiving any claims against PERSON", "Subsequently the PERSON brothers challenged this friendly settlement , arguing that they had not been consulted .", "After the death of PERSON , the CARDINAL of the property still owned by her was left to a community of heirs .", "Under a notarially - registered agreement of DATE , CARDINAL of PERSON heirs sold an initial share in the joint property ( PERSON an PERSON ) to the applicant for MONEY ( ORG ) and a second share to another purchaser , PERSON , for the same amount . The agreement indicated that the applicant had been provided with a description of the events leading to the current property regime of the property in question ( “ wie es zu den momentanen Eigentumsverhältnissen gekommen ist ” ) and that this description covered the period from DATE to CARDINAL DATE .", "On DATE the applicant was registered in the land register as a member of the community of joint owners .", "In CARDINAL letters , of DATE and DATE , the heirs of the PERSON brothers sought the restitution of CARDINAL of the land in accordance with section CARDINAL(CARDINAL ) of the law on the resolution of outstanding property issues DATE LAW ( Gesetz über die GPE offener Vermögensfragen - Vermögensgesetz ) of CARDINAL DATE ( see relevant domestic law and practice , paragraph CARDINAL below ) .", "In a notarially - registered agreement of CARDINAL DATE the heirs of the PERSON brothers sold CARDINAL of the disputed land for DM CARDINAL to Mrs T. The same agreement contained a clause indicating that the heirs of the PERSON brothers were also selling CARDINAL of the land for ORG CARDINAL under the condition precedent that they obtained its restitution ( the procedure was pending before the domestic authorities and courts – see paragraphs CARDINAL et seq . below ) .", "On DATE the applicant acquired a second share in joint ownership from PERSON , which was also registered in the land register on CARDINAL DATE . The ORG pointed out that the applicant had not provided evidence that he had paid for that acquisition , whereas the applicant indicated that the value of that second share had also amounted to ORG CARDINAL as stipulated in the initial agreement of DATE , and that he had acquired that share from PERSON in exchange for debts owed to him by the latter .", "On DATE , the applicant entered into a notarially - registered sales agreement for his CARDINAL shares for a total sum of DM CARDINAL to the company ORG , having its registered office in GPE ( GPE ) . This agreement indicated that the parties had released the notary from his obligation to inspect the land register , in spite of his warning that the existence of third - party rights could not entirely be ruled out .", "The applicant alleged that , on account of the restitution of the disputed property , he had been unable to fulfil his undertakings under that agreement .", "In a decision of CARDINAL DATE ORG ( Amt für die PERSON ) of the town of GPE initially rejected the request by the heirs of the PERSON brothers , on the ground that the friendly settlement reached on DATE had ruled out any request for restitution . The heirs of the PERSON brothers challenged that decision .", "NORP In a decision of CARDINAL DATE ORG for ORG ) upheld their request and ordered the restitution of CARDINAL of the land . The ORG took the view that there was a presumption that the disputed land had been sold under duress in DATE , because the sale price had not been appropriate and it had not been established that the sale would have taken place without ORG “ rule ” . Moreover , restitution could not be ruled out , whether because of the friendly settlement reached in the former GPE under the pressure of forthcoming expropriations without the agreement of those concerned , or for any of the other reasons given in LAW , namely an acquisition in good faith at the time of the former GPE ( see relevant domestic law and practice , paragraph CARDINAL below ) . Under section CARDINAL ) of LAW , the applicant was entitled to the payment of consideration ( Gegenleistung ) for a sum equivalent to the sale price of his shares in DATE at the conversion rate of DM CARDINAL for RM CARDINAL , thus DM CARDINAL .", "The applicant then took the matter to the LOC administrative court , complaining that the current purchasers were not responsible for the situation under the ORG regime , that the friendly settlement had been valid and that the ORG ’s decision infringed his right to the enjoyment of his possessions under LAW No . CARDINAL .", "In a judgment of CARDINAL DATE ORG upheld the decision of ORG , in all its aspects , relying on sections CARDINAL(CARDINAL ) and CARDINAL ) taken together with CARDINAL ) of LAW ( see relevant domestic law and practice , LAW below ) . It explained that LAW had to be regarded as a law controlling the use of property within the meaning of the second paragraph of LAW No . CARDINAL , having the legitimate aim of ensuring reparation for the injustice committed against NORP citizens . Even supposing that the applicant had a possession within the meaning of that LAW , the relevant provisions of LAW had validly defined the scope of his property right ( zulässige LOC ) . He therefore had only a restricted right ( eingeschränkte PERSON ) . ORG concluded that restitution was not ruled out under section CARDINAL(CARDINAL ) of LAW , because the applicant had not acquired title to its pecuniary value ( kein LOC ) and had acquired his share after the entry into force of LAW . Nor had he been able to dispose of ( verfügen ) his property , and for that reason was simply registered in the land register as a member of the community of joint owners of the inherited estate .", "ORG did not give the applicant leave to appeal against that judgment or to lodge an application for review with ORG .", "In a decision of DATE , ORG dismissed the applicant ’s appeal against ORG decision not to give him leave to lodge an application for review .", "In a decision of DATE ORG , ruling in a committee of CARDINAL , rejected the applicant ’s constitutional appeal .", "On DATE the applicant filed a request for compensation under the Law of DATE on compensation in accordance with LAW ( Gesetz über die Entschädigung nach dem Vermögensgesetz – Entschädigungsgesetz – see relevant domestic law and practice , paragraph CARDINAL below ) and that procedure is still pending .", "On DATE LAW of DATE , which was also to be part of LAW ( Einigungsvertrag ) , came into force . Under LAW would remain in force in GPE after the reunification of the two GPE on DATE . The LAW ’s purpose was , in particular , to settle any conflicts relating to property on the territory of the GPE in a manner that was socially acceptable , in order to ensure long - term legal security in GPE .", "Section CARDINAL(CARDINAL ) of LAW provides that it is applicable to rights in respect of property that was expropriated at the time of the GPE and section CARDINAL ) provides that it also applicable to persons against whom proceedings were brought in GPE DATE and DATE on racist , political , religious or ideological grounds ( weltanschauliche GPE ) and who had consequently lost their property “ by forced sale , expropriation or other means ” . Sections CARDINAL and CARDINAL of the LAW complement section CARDINAL .", "Section CARDINAL(CARDINAL ) of LAW provides that any property that became “ people ’s property ” will be returned on request unless excluded by the law . LAW ) provides that if a number of parties make a request for restitution concerning the same property , it is the party that was “ first ” injured which is thus entitled . That means that , as in the present case , when property was sold under duress during ORG period , then subsequently expropriated in the former GPE , the heirs of the original NORP owners have a priority right to restitution .", "Restitution is ruled out if it proves impossible in practice ( section CARDINAL ( CARDINAL ) of the Act ) or if the purchasers acquired the property in good faith DATE and DATE ( section CARDINAL ( CARDINAL ) of the LAW ) . However , it is not excluded if , as in the present case , the acquisition took place after that date .", "Section PERSON ) , first sentence , of LAW provides that applications for restitution had to be lodged no later than DATE .", "In the event of the property ’s restitution , section CARDINAL ) of LAW provides that consideration equivalent to the original sale price must be paid to the new purchasers . The conversion rate is DM CARDINAL for RM CARDINAL . In this connection , no distinction is made between the heirs of the initial purchaser in the National - Socialist era and a new purchaser , who , as in the present case , has more recently acquired joint - ownership shares from the community of heirs of the initial purchaser .", "Section CARDINALa(CARDINALb ) provides that the heirs of the initial purchaser or the new purchaser may also opt for the payment of compensation in accordance with LAW of DATE if the original sale price had been paid in reichsmarks ( RM ) in ORG era . The objective of this provision was to alleviate the effect of the devaluations resulting from CARDINAL changes of currency since that time . Only those persons who had acted in a manner contrary to the principles of humanity or who had abused their position in ORG era were to be excluded from the possibility of obtaining such compensation ." ]

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[ "The applications have been lodged by CARDINAL families who complain about the disappearance of their CARDINAL male relatives in ORG or LOC DATE and DATE . The abductions occurred in quite similar circumstances : the applicants’ relatives were arrested by groups of armed and masked men at their homes or in the streets in a manner resembling a security operation . In each case a criminal investigation file was opened by the local prosecutor ’s office . At DATE , when the latest round of observations was submitted , the investigations remained pending without having produced any tangible results as to the whereabouts of the applicants’ relatives or the identity of the perpetrators .", "NORP In their observations the Government did not dispute the principal facts of each case as presented by the applicants , but noted that as the domestic investigations were pending , any conclusions about the exact circumstances of the crimes would be premature . They argued that it had not been established with sufficient certitude that the applicants’ relatives had been detained by ORG agents or that they were dead .", "Below are summaries of the facts relevant to each individual complaint . The personal data of the applicants and their disappeared relatives and some other key facts are summarised in the attached table ( Annex I ) .", "The applicant was living in GPE , GPE , with her husband PERSON . They had CARDINAL daughters , born in DATE and DATE . According to the applicant , at TIME on DATE a large group of servicemen ( CARDINAL ) wearing camouflage uniforms and armed with automatic weapons had conducted a sweeping operation in FAC in GPE , where the applicant ’s husband had been working at the time . They had used several APCs and military LOC trucks without number plates . They had entered the houses , searched them and led ORG away .", "The applicant had not been a witness to her husband ’s abduction as at the relevant time she had been staying in GPE . The description of the events of DATE was based on the accounts provided to the applicant ’s representatives by her on CARDINAL DATE and by the witnesses to ORG abduction : by PERSON on DATE ; by PERSON on DATE ; and by PERSON on DATE .", "The applicant arrived in PERSON on DATE and started to search for her husband . She personally visited the local police station , the military commander ’s office and the prosecutor ’s office . In DATE she wrote to numerous official and public bodies , as testified by her and attested by some responses to her queries received in DATE .", "On DATE ORG of the Interior ( “ the Leninskiy ROVD ” ) of PERSON opened criminal investigation file no . DATE under LAW ( aggravated kidnapping ) . On DATE the applicant was questioned and granted the status of victim .", "The investigation was suspended on several occasions . It was also transferred from CARDINAL prosecutor ’s office to another . The ORG refused to disclose any documents from the file . Instead , they referred to some documents which , in their opinion , called into question the applicant ’s presentation of the facts . The applicant therefore submitted a copy of a report of an unspecified date , in which the head of ORG had informed ORG that ORG had been detained by contract servicemen of the NORP district military commander ’s office , who had told [ local residents ] that his body could be found in LOC . The same servicemen had later returned and terrorised the witnesses to the abduction , forcing them to flee . In their observations the Government questioned the validity of that document . Furthermore , they alleged that PERSON , the owner of the house in PERSON where ORG had been apprehended , had been away on DATE in question . In turn , the applicant disputed that allegation and submitted an additional testimony by PERSON dated DATE , confirming her previous statements as an eyewitness to the abduction and attesting that she had not been questioned about the crime .", "On DATE , following a complaint by the applicant , ORG of ORG found that the investigation had been ineffective , ordered its resumption and instructed that the applicant be issued with copies of certain procedural documents . At the same time , the court observed that the applicant could access and make copies of documents in the criminal investigation file only after the completion of those proceedings . On DATE ORG confirmed that decision on appeal .", "On DATE , following a request by the applicant , ORG declared Mr PERSON a missing person as of DATE .", "At TIME on DATE a group of CARDINAL armed men in camouflage uniforms , wearing masks , armed with sub - machine guns equipped with silencers and speaking NORP entered the applicants’ house in PERSON , searched it and beat up the CARDINAL ORG brothers . They put black plastic bags over the heads of the CARDINAL men , fixed them with adhesive tape and took them away in their underwear and barefoot . The intruders tied up the applicants’ hands and covered their mouths with adhesive tape . Once the applicants had managed to release themselves , they followed the footprints of military boots and bare feet , which were clearly visible in the wet mud . They arrived at a military checkpoint located by a bridge over LOC , QUANTITY from their house . The servicemen stationed there allegedly told them that their relatives had been taken away by “ federal servicemen ” in ORG cars .", "The first applicant submitted her own statement of DATE , as well as written testimonies by CARDINAL of her relatives and neighbours made DATE , which were fully consistent with her statements .", "Akhmed ( the applicant ) and PERSON ( his father ) were detained at TIME on DATE at their home , presumably by the same group as the PERSON brothers ( no . CARDINAL/CARDINAL ) . PERSON was released on DATE in a forest near ORG and gave detailed submissions to the ORG and the investigation about being taken , blindfolded , to the checkpoint , placed in a UAZ vehicle and subsequently detained at a military installation . On TIME of his abduction , while being transported in a UAZ vehicle , and later at the installation , he was detained together with his father and the PERSON brothers .", "According to the applicants , when the first applicant was released he had had numerous bruises on his body and head , scars on the inner side of his legs and a swollen testicle . He had been afraid to seek medical assistance in GPE and had undergone inpatient medical treatment for DATE outside the region , under a false name . He had been recommended surgery on the injured testicle . The applicants furnished no medical documents in support of the allegations of injuries sustained by the first applicant .", "In addition to the detailed statements to the domestic investigating authorities ( see below ) , the applicants made CARDINAL testimonies to the ORG dated DATE , describing in detail the events in question .", "The investigation into the abduction of the ORG brothers [ in many documents in the file also spelled “ Borshov ” ] and CARDINAL members of the PERSON family was opened on DATE by ORG . It was suspended and resumed on several occasions but produced no tangible results . In DATE the ORG submitted CARDINAL pages - the entire contents of the criminal investigation file no . DATE . In DATE ( the date of the latest documents ) , the case remained pending ; no progress had been made in respect of finding the missing men or identifying the perpetrators . Several eyewitnesses testified that the detained men had been taken by their abductors to ORG vehicles parked near a roadblock at the FAC bridge ; however , it does not appear that the servicemen manning the roadblock were identified or questioned .", "On DATE PERSON was granted the status of victim . She was questioned on several occasions after that date . PERSON was questioned and granted the status of victim on DATE .", "Akhmed ORG was questioned on DATE and DATE . He testified that he had been detained together with the CARDINAL missing men . He gave detailed submissions about his detention , beatings , questioning and release at an installation that he presumed to be military . He referred to the black camouflage uniforms of the abductors , the ORG vehicles and the sounds of helicopters landing and taking off above the “ pit ” where he had been detained . On DATE he was accorded the status of victim in the criminal investigation . When questioned in DATE he explained that at the time of release he had been afraid to seek medical help , but that for some time after the beatings he had suffered acute pain in the chest and had had difficulty breathing . It does not appear that any further steps were taken to back up his allegations of ill - treatment , such as the carrying out of a forensic expert report or medical examination .", "The investigators received mostly negative replies to their requests for information about the detained men . Various state bodies , including ORG and ORG ( “ the ORG ” ) , denied having any knowledge of the events or of the fate of the disappeared men , or any information that could implicate them in any criminal activities . The case file contains a handwritten note dated DATE entitled “ Report ” , drawn up by a serviceman of ORG , Senior PERSON . The note alleged , without further references , that the PERSON brothers had been members of an illegal armed group under the command of “ emir PERSON . ” , active in LOC . It listed CARDINAL other men as members of the same group , some of whom had been killed and others who were being searched for . According to the note , in DATE the ORG brothers had taken part in the secret burial of emir PERSON . , following which they had been abducted by unidentified servicemen .", "Another handwritten document , which was undated and entitled “ Explanation ” ( объяснение ) , was signed by GPE , CARDINAL of the men listed in the “ Report ” . According to the text , at some time in DATE GPE . and “ LOC ” [ GPE ] , following the orders of PERSON . , had placed an improvised explosive device near a roadblock in PERSON , as a result of which CARDINAL servicemen had been wounded . Further documents indicated that the crimes committed by that group had become the subject of a separate investigation ; in DATE some pieces of evidence had been declared inadmissible for serious procedural breaches and the investigation had been suspended . ORG has never been formally charged or suspected of any criminal acts .", "The transcripts also state that the witnesses and PERSON were questioned about their possible relationship with PERSON . According to a statement made by ORG sister to the ORG in DATE , their other brother , PERSON , had been among the terrorists who had seized the ORG theatre in GPE in DATE , and had been killed there .", "In DATE the applicant PERSON submitted to the investigators a handwritten note , allegedly given to her by a man who had been released from prison and who had identified her son , ORG , from a photograph . The investigation had not located the man . The note said that ORG had been charged with the illegal handling of explosives and had been transferred to different prisons in ORG DATE and DATE . The note also indicated the names and positions of CARDINAL ORG officers who had allegedly been in charge of the investigation . It does not appear that any of those leads were successful : the CARDINAL officers were not identified , and the detention centres denied having ORG or the other disappeared men on their records .", "Further to a complaint lodged by PERSON under LAW , on DATE ORG of ORG ordered the investigator to resume the suspended proceedings ; it also criticised the investigating authorities’ inactivity in the preceding period . It also upheld the refusal of the prosecutor ’s office to grant the applicant full access to the case file since the investigation was pending . On DATE ORG confirmed that decision ; it also ordered the prosecutor to issue the applicant with copies of the procedural documents sought by her .", "On DATE the NORP district prosecutor criticised the investigation as ineffective and ordered it to be resumed .", "On DATE , further to a complaint lodged by PERSON , ORG of ORG quashed a decision of DATE to adjourn the investigation . The court found that the investigator had failed to carry out a thorough investigation .", "Between TIME on DATE , CARDINAL persons armed with sub - machine guns , wearing camouflage uniforms and masks , entered the applicants’ flat in PERSON . Some of them were equipped with metal shields to protect their bodies and metal spherical helmets , typical of the police special forces . They spoke NORP and communicated by radio with someone in command . They searched the flat and adjacent flats , checked the ORG identity documents and beat up the applicants . They covered the heads of PERSON and CARDINAL other men with plastic bags or their own clothes and led them away to a convoy of CARDINAL vehicles , consisting of a white GPE , a GPE , a PERSON and CARDINAL grey UAZ vehicles , all without registration plates . The convoy passed in front of CARDINAL permanent police checkpoints . DATE , CARDINAL of the applicants’ relatives who had been detained together with PERSON were released in LOC , in the vicinity of the GPE military base . They gave detailed submissions about their journey , blindfolded , to an unknown place TIME away , where both were questioned about their relations .", "The applicants submitted CARDINAL witness statements made in DATE and DATE by them , their neighbours and relatives who had witnessed the abduction .", "The investigation into the abduction was opened by ORG of PERSON on DATE , even though a number of investigative measures had already been taken in DATE . It was suspended and resumed on several occasions , without any apparent outcome . The Government have provided CARDINAL pages of documents from the file . The second applicant was granted the status of victim on DATE . The witnesses alleged that some of the vehicles ( including the PERSON and the ORG ) had been armoured and that the abduction had occurred in full view of a permanent police checkpoint . CARDINAL men who had been taken away and then released were questioned in DATE . CARDINAL of them testified that he had been questioned about the terrorist act of CARDINAL DATE in PERSON . The latest documents submitted by the Government relate to DATE , at which time the investigation was pending . The applicants petitioned the prosecutor ’s offices , but not the court .", "TIME on DATE a group of CARDINAL men , wearing camouflage uniforms , masks and armed with automatic rifles consecutively broke into CARDINAL houses in GPE - Borzoy , in LOC . The men spoke NORP and communicated with their superiors by radio . They used several ( up to CARDINAL ) APCs and ORG vehicles . They beat up ORG , ORG , PERSON and some of the applicants ; covered the detainees’ heads with their clothes and led them away . All detainees were taken away in their underwear and barefoot . The applicants claimed to have seen the PERSON tyre tracks in the snow DATE , leading over a bridge to the village of ORG , and passing by the side of a military base and a permanent military roadblock located on the bridge over LOC between the villages of GPE - GPE and GPE - Yurt .", "NORP In DATE CARDINAL of the applicants provided the ORG with witness statements describing the abductions and their efforts to locate their relatives .", "On DATE the ORG district prosecutor ’s office opened a criminal investigation into the abduction of the CARDINAL men . The Government have submitted CARDINAL pages from that file . The documents contain numerous references to military vehicles and the servicemen ’s participation in the abduction ; however , the investigation was not transferred to the military prosecutor ’s office .", "In DATE the head of the GPE - Borzoy administration corroborated the ORG statements about the circumstances of the abductions . In his statement he also alleged that DATE an ORG officer had shown him a list of wanted persons , including the names of the CARDINAL detainees . It does not appear that that officer has ever been identified or questioned . The only other testimonies contained in the file had been given by the applicants and their relatives .", "The site was examined on DATE . In DATE the family members of the disappeared men were accorded the status of victims in the proceedings . On CARDINAL DATE the ORG representative was allowed to study the file . By that time , the investigation had been suspended and resumed on several occasions .", "Judging by the responses received from ORG and the military prosecutor ’s office , their cooperation was minimal : most of the letters contained standard phrases that no information relevant to the case had been available .", "On CARDINAL occasions in DATE the progress of the case was discussed at working meetings held by the deputy prosecutor of LOC , together with the police and military commanders . TIME of the meetings contain references to the lack of cooperation of the military and ORG with the investigation , and in particular to the absence of information about the possible provenance of CARDINAL APCs and a UAZ vehicle .", "On DATE the central archive office of ORG informed the investigators as follows :", "“ ... [ P]ursuant to LAW ( Federal Law No . CARDINAL - CARDINAL ) of DATE , Presidential Decree No . CARDINAL of CARDINAL DATE setting up the list of information constituting state secrets , and Order of ORG . CARDINAL of DATE [ confidential ] , all documents contained in the central archive of ORG , deposited by the military units that took part in restoring constitutional order and fighting the [ illegal armed groups ] in GPE , have been classified as confidential and containing state secrets .", "Pursuant to section CARDINAL of the Troops of ORG Federal Law No . CARDINAL-FZ ) of DATE it is prohibited to disseminate information about the location or movements of the military units of ORG , or about the carrying out by those units of tasks in the context of fighting the illegal armed groups .", "Information about the service missions of those units may be disclosed only by an appropriate commander , upon the permission of ORG .", "Pursuant to section CARDINAL of LAW ( Federal Law No . CARDINAL - CARDINAL ) of DATE , such information can not be made available to you without the authorisation of the Ministry in charge of the archive . It would therefore appear necessary for you to seek permission from ORG to peruse documents containing state secrets . Once such an authorisation has been obtained , the necessary documents will be provided to you by the [ central archive ] . ”", "The investigation was adjourned in DATE . The ORG submitted that it was still pending .", "Article CARDINAL of LAW of DATE provides that murder is punishable by DATE imprisonment . Aggravated murder , for example if committed by an organised group , is punishable by prison terms , including life imprisonment , and by the death penalty .", "Under LAW , kidnapping is punishable by up to CARDINAL years’ imprisonment . Aggravated kidnapping , for example , committed with the use of arms or by an organised group , is punishable by DATE imprisonment .", "Article CARDINAL sets time - limits for criminal liability . A person can not be held liable for a crime after DATE in the case of a serious crime ( punishable by up to CARDINAL years’ imprisonment ) and after DATE in the case of a grave crime ( punishable by prison terms exceeding CARDINAL years’ imprisonment ) . Time starts to run from the date of the crime and stops running on the judgment of the trial court . If the person escapes justice , the time does not start to run until the person is found . The applicability of time - limits in cases of crimes punishable by a life sentence or the death penalty is decided individually by the trial court . No time - limits are applicable to crimes against peace and humanity .", "The DATE Code of Criminal Procedure of the Russian NORP , which was in force until DATE , required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed . That authority was under an obligation to establish the facts and to identify those responsible and secure their conviction . The decision whether or not to institute criminal proceedings had to be taken within DATE of the first factual report ( see Articles CARDINAL and CARDINAL - CARDINAL ) .", "On DATE the DATE Code was replaced by LAW .", "The new Code establishes that a criminal investigation may be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigating authorities’ own initiative , where there are reasons to believe that a crime has been committed ( see Articles CARDINAL and CARDINAL ) . The decision to open a criminal investigation is to be taken within DATE from the receipt of information about the crime , which period can be extended to DATE in certain circumstances ( see Article CARDINAL ) .", "Article CARDINAL of the Code defines the procedural status of a victim in criminal proceedings and lists the rights and obligations vested in that person . It provides that the victim has the right to acquaint him or herself with the entire case file after the closing of the investigation . Article CARDINAL also stipulates that the victims are to be informed of procedural decisions to open or close criminal proceedings , grant or refuse victim status , and to adjourn proceedings . Copies of those decisions must be sent to the victims . The victims also have access to any decisions to order expert reports and to the outcomes of such reports ( see Article CARDINAL ) .", "A prosecutor is responsible for the overall supervision of the investigation ( see LAW ) . He or she may order specific investigative measures , transfer the case from one investigator to another or order an additional investigation . If there are no grounds for initiating a criminal investigation , the investigator issues a reasoned decision to that effect , which has to be served on the interested party . Under LAW , a prosecutor can examine a complaint concerning the actions or omissions of various officials in charge of a criminal investigation . Once a complaint has been examined , the complainant must be informed of the outcome and the avenues of further appeal .", "Article CARDINAL of the Code sets out the judicial procedure for the consideration of complaints . The orders of an investigator or a prosecutor refusing to institute criminal proceedings or terminating a case , other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen ’s access to justice , may be appealed against to a district court , which is empowered to check the lawfulness and grounds of the impugned decisions .", "Article CARDINAL provides that the investigators of ORG ( as of DATE ) are responsible for the investigation of serious crimes , including murder and abduction .", "Article CARDINAL § CARDINAL prohibits the disclosure of details of the preliminary investigation . Such information can be disclosed only with the permission of a prosecutor or investigator and within the limits determined by them , and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings and does not prejudice the investigation ( see Article CARDINAL § CARDINAL ) .", "Article CARDINAL of LAW of GPE ( relevant part adopted in DATE ) provides that a ORG agency or ORG official will be liable for damage caused to a citizen by their unlawful actions or failure to act . Damages are awarded at the expense of the federal or regional treasury .", "Article CARDINAL sets out the rules for the payment of damages to private persons for the unlawful actions of law - enforcement officers . Other than unlawful criminal prosecution ( confirmed by the criminal conviction of the perpetrators ) , the general rules of Article CARDINAL apply .", "Articles CARDINAL and CARDINAL to ORG provide for payment of non - pecuniary damages . Article CARDINAL states , in particular , that non - pecuniary damages will be payable , irrespective of any award for pecuniary damage .", "The Suppression of Terrorism Act of DATE ( Law no . CARDINAL ) ( hereinafter also called “ the Anti - Terrorism Act ” ) , which was replaced on DATE by ORG ( Law no . CARDINAL-FZ ) , established basic principles in the area of the fight against terrorism . Section CARDINAL of the Anti - Terrorism Act established , inter alia , that the ORG should keep secret , to the maximum extent possible , the technical methods of anti - terrorist operations and not disclose the identity of those involved in them . Section CARDINAL(CARDINAL ) of the new LAW contains similar provisions .", "On DATE ORG issued Order no . CARDINAL detailing the procedure for obtaining information about persons who had taken part in counter - terrorist operations . Any such requests should contain reasons for the requested disclosure and be authorised by the Deputy Head of ORG . The criminal investigation files containing such information should be treated as classified .", "The Federal Security Service Act ( Law no . CARDINAL ) of DATE , with subsequent amendments , provided that the personal data of the agency ’s staff and persons cooperating with it should be stored at the central archive . As of DATE , such information could be divulged only pursuant to a federal law , or a special decision by the head of the relevant regional department of the Service .", "ORG of ORG Resolution CARDINAL ( DATE ) on Enforced Disappearances considered the following points essential for an international instrument in this field :", "“ [ T]he definition of enforced disappearance ... should not include a subjective element , which would be too difficult to prove in practice . The inherent difficulties in proving an enforced disappearance should be met by the creation of a rebuttable presumption against the responsible state officials involved ;", "family members of the disappeared persons should be recognised as independent victims of the enforced disappearance and be granted a ‘ right to the ORG , that is , a right to be informed of the fate of their disappeared relatives ;", "the instrument should include the following safeguards against impunity :", "DATE . obligation for states to include the crime of enforced disappearance with an appropriate punishment in their domestic criminal codes ;", "ORG . extension of the principle of universal jurisdiction to all acts of enforced disappearance ;", "CARDINAL.CARDINAL.CARDINAL . recognition of enforced disappearance as a continuing crime , as long as the perpetrators continue to conceal the fate of the disappeared person and the facts remain unclarified ; consequently , non - application of statutory limitation periods to enforced disappearances ;", "ORG . clarification that no superior order or instruction of any public authority may be invoked to justify an act of enforced disappearance ;", "exclusion of perpetrators of enforced disappearances from any amnesty or similar measures , and from any privileges , immunities or special exemptions from prosecution ;", "perpetrators of enforced disappearances to be tried only in courts of general jurisdiction , and not in military courts ; ...", "CARDINAL.CARDINAL.CARDINAL . failure to effectively investigate any alleged enforced disappearance should constitute an independent crime with an appropriate punishment . The minister and/or the head of department responsible for the investigations should be held accountable under criminal law for the said failure ” .", "The UN International Convention for the Protection of All Persons from Enforced Disappearance of DATE ( ORG ) entered into force in DATE . LAW defined “ enforced disappearance ” as :", "“ ... arrest , detention , abduction or any other form of deprivation of liberty by agents of the ORG or by persons or groups of persons acting with the authorisation , support or acquiescence of the ORG , followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person , which place such a person outside the protection of the law . ”", "The ORG placed signatory GPE under an obligation to investigate such acts and to bring those responsible to justice , whether they themselves had committed the acts in question or were the superiors of the perpetrators ( see LAW , as well as to criminalise disappearance under the national law ( see Articles DATE and CARDINAL ) . The statute of limitations for such crimes should be of long duration and , in view of the continuous nature of the offence , should commence from the time when the offence ceases ( see LAW The LAW also established the right of GPE relatives to know the truth and to obtain reparation ( see LAW .", "DATE International Criminal Court of DATE both describe the widespread or systematic practice of enforced disappearance as a crime against humanity .", "GPE signed LAW but not the ORG , and has not ratified either document .", "International human right bodies , such as ORG and ORG , consider enforced disappearances as a combination of several violations of protected rights . They often entail a violation of both the substantive and procedural aspects of the right to life , a breach of the relatives’ right to be free from degrading treatment on account of the prolonged suffering caused by the absence of news about the fate of their loved ones , and a breach of the abducted ORG right to freedom and security . A summary of those approaches , stressing the lasting nature of some of the violations in question , can be found in the judgment PERSON and Others v. GPE ( [ ORG ] , ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and GPE , § § CARDINAL , ECHR CARDINAL- ) .", "The ORG has already dealt with allegations of enforced disappearances and the failure of investigations in other member GPE . Its judgments summarised domestic legal and practical arrangements designed to address those problems .", "Thus , the ORG has dealt with a “ pattern of enforced disappearances ” occurring principally DATE in LOC GPE ( see , among others , GPE v. GPE , no . CARDINAL/CARDINAL , DATE ; PERSON v. GPE , no . ORG , CARDINAL DATE ; PERSON v. GPE , no . MONEY , ECHR CARDINALII ( extracts ) ; PERSON and Others v. GPE , no . CARDINAL/CARDINAL , CARDINAL DATE ; PERSON v. GPE , no . CARDINAL , CARDINAL DATE ; PERSON GPE , no . CARDINAL , ORG CARDINALVI ; ORG v. GPE , no . CARDINAL , ORG CARDINALV ; and PERSON v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV ) . The PERSON judgment , in particular , outlined the relevant national legislative framework , including provisions on criminal investigations and civil liability of ORG officials for the pecuniary and non - pecuniary damage caused by their actions , as well as specific anti - terrorist legislation and the distribution of responsibility in respect of the offences allegedly committed by the security forces ( see § § CARDINAL - CARDINAL ) .", "The NORP conflict has resulted in a large number of missing persons in DATE . This matter has to be seen in the context of rather lengthy historical developments . Relevant summaries can be found in the judgments of GPE v. GPE ( [ ORG ] no . CARDINAL , ORG CARDINALIV ) and PERSON and Others v. GPE ( cited above ) . As can be seen from those judgments , efforts were made from the start to set up a mechanism to deal with the problem of disappearances . In DATE the ORG on Missing Persons ( ORG ) was created under the ORG auspices . The actual work on cases started in DATE , and some investigative steps were taken in DATE . Since DATE the ORG has organised exhumations and begun to locate and identify remains ( see PERSON , cited above , § CARDINAL ) . CARDINAL bodies of missing persons have now been exhumed , identified and returned to their relatives . The criminal investigations triggered by those findings are still pending ( see PERSON and PERSON v. GPE ( dec . ) , nos . PERSON . , DATE , and PERSON v. GPE ( dec . ) , no . PERSON , DATE ) .", "DATE . A list of legislative and practical measures aimed at solving the disappearance and war crimes issues in GPE can be found in Palić v. GPE ( no . CARDINAL , § § CARDINAL , DATE , DATE , CARDINAL DATE ) . ORG found , in particular :", "“ While it is true that the domestic authorities made slow progress in DATE immediately after the war , they have since made significant efforts to locate and identify persons missing as a consequence of the war and combat the impunity . To start with , GPE has carried out comprehensive vetting of the appointment of police and judiciary ... Secondly , the domestic ORG was set up pursuant to LAW ( see paragraph CARDINAL above ) . It has so far carried out many exhumations and identifications ; for example , in DATE ORG identified CARDINAL persons . Thirdly , the creation of ORG and its War Crimes Sections in DATE gave new impetus to domestic prosecutions of war crimes . That court has so far sentenced CARDINAL people . Moreover , the number of convictions by the Entity and District courts , which retain jurisdiction over less sensitive cases , has considerably increased . Fourthly , in DATE the domestic authorities adopted ORG which provides a systematic approach to solving the problem of the large number of war crimes cases . It defines the time - frames , capacities , criteria and mechanisms for managing those cases , standardisation of court practices , issues of regional cooperation , protection and support to victims and witnesses , as well as financial aspects , and supervision over the implementation of the Strategy . ... Lastly , domestic authorities contribute to the successful work of the international bodies set up to deal with disappearances and other serious violations of international humanitarian law committed in GPE ... ”", "According to document ORG / DH(CARDINAL)CARDINALE of CARDINAL DATE entitled “ Action of the security forces in GPE of GPE : general measures to comply with the judgments of ORG , a special unit has been set up within ORG in GPE to address the issues raised in the ORG ’s judgments . An information document submitted by ORG in DATE ( DH - DD(CARDINAL)CARDINALE ) stated that out of CARDINAL cases discussed ( concerning the so - called “ ORG group ” involving findings of violations of core rights in LOC ) , CARDINAL criminal cases had been concluded ( CARDINAL of which had been terminated as a result of the suspect ’s death ) . The remainder were pending ; most of them had been suspended as a result of a failure to identify the suspects .", "Interim PERSON / ResDH(CARDINAL)CARDINAL of DATE on “ Execution of the judgments of ORG in CARDINAL cases against GPE concerning actions of the security forces in GPE of the GPE ” stated , in so far as relevant :", "“ CARDINAL . Search for disappeared persons", "Considering that , in all judgments concerning disappearances , the ORG also found a violation of LAW on account of the applicants’ suffering as a result of the disappearance of their relatives and of their inability to find out what had happened to them ;", "Taking note of measures aimed at improving the regulatory framework governing the search for disappeared persons in general and at enhancing the search for such persons in GPE in particular , through the developments in use of DNA tests of relatives of disappeared persons ;", "Noting however with particular concern that little progress has been made so far in this respect and that fresh applications concerning disappearances are being lodged with the ORG ;", "Considering that the numerous disappearances which took place in GPE constitute a specific situation which calls for additional tools and means ;", "Stressing in this respect the need to intensify further the search for disappeared persons , in particular through better co - ordination between the different agencies involved , collection , centralisation and sharing of all information and data relevant to the disappearances among different authorities concerned , strengthening local forensic institutions , enhanced cooperation with the relatives of disappeared persons , identification of possible burial sites and other relevant practical measures ;", "Emphasising that the need for such measures is all the more pressing in cases where the continued failure to account for the whereabouts and fate of the missing persons gives rise to a continuing violation of the LAW ; ...", "Emphasising the need for continuous efforts aimed at ensuring close co - operation with GPE families and for further improvement of the legal and regulatory framework governing the participation of victims in domestic investigations ; ...", "ORG the NORP authorities to enhance their efforts so that independent and thorough investigations into all abuses found in the ORG ’s judgments are conducted , in particular by ensuring that the investigating authorities use all means and powers at their disposal to the fullest extent possible and by guaranteeing effective and unconditional co - operation of all law - enforcement and military bodies in such investigations ;", "STRONGLY URGES the NORP authorities to take rapidly the necessary measures aimed at intensifying the search for disappeared persons ;", "ENCOURAGES the NORP authorities to continue their efforts to secure participation of victims in investigations and at increasing the effectiveness of the remedies available to them under the domestic legislation ;", "ENCOURAGES the NORP authorities to take all necessary measures to ensure that the statutes of limitation do not negatively impact on the full implementation of the ORG ’s judgments . ”", "ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) issued CARDINAL public statements in relation to GPE DATE , deploring the absence of cooperation in the investigation of the alleged violations . The public statement of CARDINAL DATE conceded that “ the abductions ( forced disappearances ) and the related problem of unlawful detention ... continue to constitute a troubling phenomenon in the GPE ” .", "On DATE ORG Human Rights presented a report entitled “ Legal remedies for human rights violations in GPE ” . On the basis of that report , on DATE PACE adopted Resolution no . DATE and Recommendation no . DATE deploring the absence of an effective investigation and prosecution of serious human rights violation in the region , including disappearances . They found that “ the suffering of the close relatives of CARDINAL of missing persons in the region and their inability to get over their grief constitute a major obstacle to true reconciliation and lasting peace . ” Among other measures , the ORG called on the NORP authorities to :", "“ CARDINAL.CARDINAL.CARDINAL . bring to trial in accordance with the law all culprits of human rights violations , including members of the security forces , and to clear up the many crimes which have gone unpunished ... ;", "DATE . intensify co - operation with ORG in enforcing the judgments of ORG , especially where they concern reinforcement of the individual measures to clear up the cases of , in particular , abduction , murder and torture in which the ORG has ascertained a lack of proper investigation ;", "ORG . be guided by the example of other countries which have had to contend with terrorism , particularly as regards the implementation of measures conducive to the ORG co - operation with justice in dismantling the terrorist networks and the criminal entities that exist within the security forces , and to prevent further acts of violence ;", "...", "ORG . implement the proposals of ORG to resolve as far as possible the serious problem of missing persons , and to create favourable conditions to renewed PERSON visits to detainees arrested and held in relation with the situation in LOC ;", "...", "both ORG of ORG to devote their utmost attention to the situation in the LOC and to demand exhaustive explanations of the executive and judicial authorities concerning the malfunctions observed in the region and mentioned in this resolution , and to stipulate that the necessary measures be applied . ”", "In Recommendation no . DATE , PACE advised ORG to :", "“ CARDINAL pay the utmost attention to the development of the human rights situation in the LOC ;", "CARDINAL in enforcing the judgments of ORG ) concerning this region , emphasise the prompt and complete elucidation of the cases in which the ORG has ascertained an absence of effective investigation ; ... ”", "In DATE ( DATE ) entitled “ Implementation of judgments of ORG , PACE considered deaths and ill - treatment by law - enforcement officials and a lack of effective investigation thereof in GPE as one of the CARDINAL “ major systemic deficiencies which cause a large number of repetitive findings of violations of the ORG and which seriously undermine the rule of law in the states concerned ” .", "A report dated DATE by PERSON , Commissioner for Human Rights of ORG , following his visit to GPE from DATE , found a number of positive developments aiming to improve DATE life in the GPE visited . Despite those positive steps , the Commissioner defined as some of the most serious issues counter - terrorism measures , abductions , disappearances and ill - treatment , combating impunity and the situation of human rights defenders . The report included the Commissioner ’s observations and recommendations in relation to those topics .", "NORP In particular , the Commissioner was deeply concerned by the persistence of allegations and other information relating to abductions , disappearances and ill - treatment of people deprived of their liberty in LOC . While the number of abductions and disappearances in GPE might have decreased recently compared with DATE , the situation remained far from normal . Referring to the far - reaching effects of disappearances on a society as a whole , he supported the proposal of ORG to create an interdepartmental federal commission to determine the fate of persons who had gone missing during the entire period of counter - terrorism operations in LOC . The Commissioner further emphasised the importance of the systematic application of rules prohibiting the wearing of masks or non - standard uniforms without badges , as well as the use of unmarked vehicles in the course of investigative activities .", "DATE . The Commissioner went on to state that the persistent patterns of impunity for serious human rights violations were among the most intractable problems and remained a source of major concern to him . There had certainly been a number of positive steps , such as the establishment of ORG structures , the increased support for victim participation in criminal proceedings , and the promulgation of various directives regarding the conduct of investigations . Despite those measures of a systemic , legislative and regulatory nature , the information gathered during the visit had led the Commissioner to conclude that the situation had remained essentially unchanged in practice since his previous visit in DATE . He called on the NORP leadership to help in creating the requisite determination on the part of the investigators concerned by delivering the unequivocal message that impunity would no longer be tolerated .", "In DATE ORG ( ICRC ) issued report “ Families of Missing Persons : Responding to their Needs ” . CARDINAL families were interviewed in LOC . In the majority of cases the abductions occurred DATE . The report found :", "“ In general , the families are unable to carry out normal activities without the shadow of the missing relative being a constant reminder . Many withdraw from society , ignoring their needs and those of their family ( for example , some children ’s birthday parties are not allowed to be celebrated ) as they focus on the search for their loved ones and they become socially and physically isolated – they often feel guilty doing something just for themselves ” .", "The report also found that PERCENT of the families had opened a criminal case with the local prosecutor ’s office , but that most of the cases had been suspended . The inability to get answers had “ left them with a sense of hopelessness ” . The report stressed the importance of finding the bodies and the performance of burial rites , since for most families the acceptance of the death was inconceivable as long as the body had not been returned . It concluded by finding that the families of the missing persons were “ very much alone in managing their difficult situation ” . It made a number of recommendations to the NORP authorities , in particular to set up a high - level body on missing persons , which should be transparent , credible , have a clear humanitarian mandate and be independent from the judiciary . The families of the missing persons should be associated with the search and be kept informed of all the important aspects of any progress made , as well as the chances of success . The ICRC further proposed changes to the legislation which would more clearly reflect GPE ’s international obligations , in order to prevent enforced disappearances in the future , as well as to protect the families of the disappeared . It contained a number of other detailed recommendations to improve psychological , socio - economic and legal support to such families .", "DATE . In DATE ORG ) issued a report entitled \" Who Will Tell Me What Happened to My Son ? GPE ’s ORG on GPE ” , which was strongly critical of the absence of progress in the investigations in disappearance cases .", "On DATE ORG and CARDINAL NORP NGOs , ORG published a joint open letter to the NORP President . They spoke of a “ complete failure of the GPE investigative authorities to deal with the abductions of GPE residents by local law - enforcement and security agencies ” , of “ systematic sabotage of investigations by NORP law - enforcement agencies and the inability of ORG to fulfil its direct mandate to investigate crimes ” .", "The Ombudsman of GPE , PERSON , has issued , over DATE , a number of documents on disappearances . His special report of DATE contained the following passages :", "“ The problem of finding the abducted and missing persons ... becomes the topic of my third special report . The first special report entitled ‘ The problems of disappearances in GPE and search of mechanisms to find the forcibly detained ORG was presented on DATE to both chambers of ORG . That report analysed the reasons and conditions leading to the disappearances . At that time , the local prosecutor ’s office had opened CARDINAL criminal cases into abductions ; of those CARDINAL have been adjourned in view of absence of information about the culprits . Many of these cases contained dates , exact timing of the abductions , registration numbers of the military vehicles , the servicemen’ names and radio call - names , the names and numbers of the military units involved , etc .", "Despite obvious competence of the military prosecutor ’s office over these crimes , they are dealt with by the local ORG offices , who are unable to obtain the relevant information about the perpetrators or to question them . ...", "According to ORG , since the beginning of the counter - terrorist operation [ in DATE ] they had opened CARDINAL criminal investigations into the abduction of CARDINAL persons . CARDINAL of those cases remain adjourned , CARDINAL have been transferred to the military prosecutor ’s office . ...", "The problem of identification of the bodies is closely linked to the problem of finding the missing persons . Various sources indicate up to CARDINAL mass burials in GPE , containing up to CARDINAL bodies of those who had lost their lives during the CARDINAL consecutive military campaigns . Another mass burial site is located in GPE in GPE . ... In view of the need to exhume mass burial sites , there remains the problem of absence of a laboratory in GPE which could carry out the identification of the exhumed bodies . ... ”", "The ORG recommended , principally , that a single inter - agency body in charge of disappearances be created in GPE ; that a parliamentary inquiry be set up and that they rely on the experience of independent lawyers and the staff of the ORG ’s office , which had maintained a database of disappeared persons ; that a specialist laboratory be created in GPE for the identification of exhumed remains ; and that a database of DNA samples of the disappeared ORG relatives be created in order to carry out systematic matching with the exhumed remains . In his statement of CARDINAL DATE devoted to the International Day of the Disappeared , PERSON said that CARDINAL persons had disappeared in GPE during the counter - terrorist operation . He repeated his recommendation to set up a single inter - agency body to deal with the problem .", "Mr PERSON , Deputy Head of ORG , published an article entitled “ Problems of investigating cases which have become the subject of review by the ORG ” in the specialist review ORG ( Bulletin of ORG ) , No . CARDINAL ( CARDINAL) DATE . He noted that the majority of the resolved abductions had been committed by members of illegal armed groups . Mr PERSON named some recurrent problems in the investigation of the unresolved crimes allegedly committed by servicemen : the need to fill in information gaps many years after the events ; the difficulties in gaining access to the archives of various security and military units ; the absence of a single database of disappeared persons ; the weakness of the local forensic laboratories , which had been unable to carry out genetic research ; the unclear legal framework for differentiating between the competence of military and civil investigators ; the poor results of the military investigators in collecting evidence concerning potential perpetrators among servicemen ; and the fact that there were no mechanisms for compensating the relatives in the absence of conclusions from the criminal investigations .", "On DATE the press service of the President and Government of GPE reported a speech by Mr PERSON , ORG , at a high - level meeting devoted to the search for missing persons . The Prosecutor referred to the absence of political will to investigate crimes allegedly committed by servicemen . He recommended setting up a single federal inter - agency body to deal with the search for missing persons and the investigation of crimes . The body would have unrestricted access to the relevant archives and decide on the confidentiality of the data contained therein . Regarding the conflict of powers between the military and civilian investigators , he suggested that the relevant legislation be amended so as to put the military prosecutors in charge of identifying suspects among servicemen .", "In a letter to the GPE Minister of the Interior ( no . CARDINAL - CARDINAL/CARDINAL - CARDINAL - CARDINAL ) of DATE , the Head of ORG complained that the “ operative assistance rendered by police in the criminal proceedings [ instituted on abductions ] was inappropriate , the ORG requests about the carrying out of search measures and other requests had been carried out with undue delays or not thoroughly , and the replies were mostly of a formal nature and did not contain the data requested ” . He asked ORG to alert its staff to the importance of the cases in question and to ensure their proper cooperation .", "In DATE the Deputy Prosecutor of GPE sent a letter to the head of ORG , PERSON . The Deputy Prosecutor strongly criticised ORG work on abduction cases in GPE :", "\" The investigative authorities fail to carry out urgent investigative actions and organise proper cooperation with the operational services in order to solve crimes . In fact , top - ranking officials of ORG have no departmental control over criminal investigations . No concrete steps are taken to eliminate the violations identified by the agencies of the prosecutor ’s office . The perpetrators are not held accountable . There are instances where crimes of abductions have actually been concealed by the investigators of the [ ORG ] ... As a result of delayed initiation of criminal proceedings and the inactive and passive nature of investigations , the perpetrators flee and the whereabouts of the affected [ abducted ] persons are not established . ”" ]

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

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

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in Plattling . He was represented before the ORG by PERSON , a lawyer practising in GPE .", "On DATE the applicant was convicted by ORG ( ORG ) of an offence under LAW ( Vereinsgesetz ) and sentenced to DATE imprisonment on probation . He was found guilty of having participated in GPE in activities of illegal NORP organisations .", "On DATE ORG at ORG served the applicant with a notice to pay the costs , including costs for the translation of his telephone conversations from NORP and NORP into NORP . These conversations were taped in the course of the criminal investigation .", "The applicant unsuccessfully challenged the inclusion of the translation costs in this assessment of the costs . On DATE his appeal was dismissed by ORG ( ORG ) which held , inter alia , that the accused should bear the costs of such part of the proceedings as concerned the act that gave rise to the conviction . The applicant 's conviction was mainly based on the telephone tapping . LAW ( e ) of the LAW did not prevent translation costs being awarded against a convicted person . This provision had the purpose of ensuring that , irrespective of his financial situation , an accused who could not understand or speak the language used in court had the right to an effective defence and accordingly to a fair trial . The free assistance of an interpreter had therefore to cover all the issues which were relevant for the defence . There would be a breach of the principle of equality of arms between the prosecution and the defence where an accused was deprived of the opportunity to have knowledge of these issues .", "However , the situation found in the present case did not affect the applicant 's rights under LAW ( e ) . The translation of the applicant 's telephone conversations was not necessary for his defence . It was required for the investigations to be carried out in a NORP or NORP speaking environment . These costs were therefore excluded from the scope of LAW ) of the LAW . This provision did not imply that a foreign accused was exempted from the payment of the costs of the investigations in so far as they resulted from the use of his mother tongue .", "On DATE ORG ( Bundesverfassungsgericht ) , sitting as a panel of CARDINAL judges , refused to entertain the applicant 's constitutional complaint ." ]

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[ "The applicant is of GPE ethnic origin and lives in PERSON , in LOC ( western LOC ) , in a GPE settlement .", "On DATE , TIME , ORG of western LOC , on the initiative of LOC police station , conducted a large - scale police operation in the GPE settlement of PERSON . The operation was aimed at arresting persons who , according to information obtained by the police , were involved in drug trafficking . CARDINAL police officers and CARDINAL judicial official took part in this operation , in the course of which CARDINAL GPE dwellings were searched and CARDINAL individuals arrested .", "The applicant , who was DATE pregnant , was in the settlement at the time of the operation .", "The applicant and other GPE women were rounded up by the police for a body search . According to her statement , whilst the police operation was taking place the applicant waited her turn to be searched by the police who were searching other residents of the settlement . She noticed that certain police officers were taunting a disabled GPE who was a relative of hers .", "As she moved to approach the police officers , she was forcefully pushed back by CARDINAL of them while another one kicked her in the back , in spite of the fact that she had shouted that she was pregnant . As a result of the kick , the applicant felt an intense pain in the abdominal area and started bleeding . Although the bleeding was obvious to all the police officers present , the applicant was not taken to hospital . Not having any personal documents – as she was at the time an unregistered stateless person DATE and being alone , she felt she could not go to the hospital on her own for fear of being refused treatment .", "DATE she informed members of ORG that she had been kicked by a police officer and that she was bleeding . CARDINAL of them then rushed her to ORG , where she was admitted immediately . She underwent a number of medical tests .", "On DATE the applicant suffered a miscarriage and was kept under medical supervision until DATE , when she was discharged from the hospital .", "According to the version of events given by the Government , the police officers who participated in the police operation of DATE did not use force against civilians . Neither the CARDINAL persons arrested nor any other individual who was in the settlement during the operation had been assaulted or subjected to racial abuse . The presence of a judicial officer guaranteed the police officers ' proper conduct .", "According to the medical report drawn up at the end of the examination , “ the applicant was admitted to the hospital on DATE , DATE pregnant , with haemorrhaging from her uterus ( risk of spontaneous abortion ) . On DATE there was a complete expulsion of the foetus and on DATE her uterus was cleaned ” .", "On DATE counsel for the applicant lodged a criminal complaint with the GPE public prosecutor against the police officer who had allegedly used violence against the applicant and whose identity was unknown to her . In the complaint the applicant joined the proceedings as a civil party seeking damages , asked to be examined by a forensic doctor and named CARDINAL persons who could testify as witnesses . She also included the address and telephone numbers of her lawyers .", "On DATE the GPE public prosecutor sent a letter to the commander of LOC police station requesting that a preliminary inquiry ( προανάκριση ) be launched into the allegations contained in the applicant 's criminal complaint so as to identify the unknown perpetrators , who would be charged with inflicting serious bodily harm under Articles CARDINAL § CARDINAL ( a ) - CARDINAL of LAW .", "On DATE CARDINAL witnesses named by the applicant submitted a written testimony to the police officer in charge of the preliminary inquiry . On the same date the applicant submitted a written memorandum to the police requesting that the police officers from LOC police station be excluded from conducting the preliminary inquiry since officers from that station had participated in the operation in question and it was most likely that one of them had ill - treated her .", "By a letter dated DATE the commander of LOC police station informed the GPE public prosecutor of the applicant 's request and asked him to make a decision and issue the relevant order as to whether he should continue to conduct the preliminary inquiry . It can not be ascertained from the case file whether the public prosecutor replied . However , LOC police station continued with the preliminary inquiry .", "On DATE CARDINAL police officers , the head of the security division of LOC police station and the head of the anti - crime unit of LOC police station respectively , testified before the police officer conducting the preliminary inquiry . Both officers stated that they did not have any knowledge of ill - treatment inflicted upon the applicant .", "On DATE the investigation file was forwarded to the GPE public prosecutor . In the covering letter the LOC police station commander repeated the applicant 's request that the police officers serving at his police station be prevented from conducting the preliminary inquiry .", "On DATE the GPE public prosecutor requested the LOC magistrate ( πταισματοδίκης ) , the competent judicial authority , to summon the applicant and any other witnesses she wished to call .", "On DATE a court bailiff visited the settlement where the applicant lived in order to summon her and another woman to testify before the LOC magistrate on DATE . The court bailiff stated that she was unable to find either the applicant or the other witness and that she had been informed by police officers from LOC police station that the QUANTITY women had moved to “ an unknown address ” .", "On DATE the Elefsina magistrate returned the case file to the GPE public prosecutor .", "On DATE the GPE public prosecutor closed the file with the indication “ Perpetrator unknown ” . The authorities did not inform the applicant or her legal representatives that the file had been closed . On DATE , when making an enquiry at the GPE public prosecutor 's office , ORG was informed that the case had been closed .", "On DATE ORG sent a letter to the LOC police station commander , enclosing a copy of the bailiff 's statement and enquiring as to how the police officers could have been aware of the applicant 's change of address .", "In his reply dated DATE the LOC police station commander commented on the court bailiff 's reference to LOC police station 's having informed her that the applicant had moved to “ an unknown address ” . According to the station commander , the reference was general and vague and thus could not be confirmed and the records of the police station did not contain any relevant information .", "In the meantime , on DATE , responding to the publicity that had been generated , the Chief of ORG launched an informal investigation in order to clarify whether the police operation of DATE had involved unlawful or excessive use of force by members of the police . The investigation was conducted under the direct supervision of the Deputy Director of Police , GPE , who had been actively involved in the police operation of DATE . As he stated in his report : “ [ T]he general supervision and coordination of the police actions had been orally assigned by the commander of ORG to the undersigned , who prepared the action plan and personally supervised the police officers ' action on the operational level . ”", "Police officer GPE proceeded to question CARDINAL senior police officers who had participated in the operation in question . According to their statements , they had not witnessed any of their colleagues ill - treating the GPE residents .", "On DATE the police went to the applicant 's settlement in order to serve her with a summons for interview , but did not find her .", "On DATE the report on the findings of the informal investigation was issued . According to the report , the presence of a judicial officer during the police operation guaranteed that , in the event of incidents of police brutality , the public prosecutor would be informed . Furthermore , according to officer ORG 's findings : “ the complaints are exaggerated ... It is in fact a common tactic employed by the athinganoi ( NORP word for GPE ) to resort to the extreme slandering of police officers with the obvious purpose of weakening any form of police control . ” The report concluded that , given that a criminal investigation had already been initiated , it was advisable to suspend the disciplinary proceedings until either a criminal court had ruled on the case or the alleged perpetrator had been identified . In accordance with this recommendation , the disciplinary proceedings were suspended .", "ORG issued a report on DATE entitled “ Disciplinary / administrative investigations into allegations against police officers ” . It stated as follows in relation to investigations into complaints raising serious issues , such as excessive use of force and/or police brutality :", "“ CARDINAL . Failure to conduct ORG ( Ενορκη Διοικητική DATE , – SAI )", "The fact that informal investigations are more frequently conducted - informal investigations represent PERCENT of the investigations carried out in total - raises the important question whether the methods of investigation used by ORG are adapted to the offences complained of . In a number of cases where an informal investigation was carried out , although the nature of the offence complained of required an ORG , the ORG observed that although there were elements that would have justified disciplinary proceedings against police officers , ORG refused to carry out an LOC . ... Such complaints [ concerning allegations of ill - treatment or police brutality ] could not be easily rejected on the basis of an informal investigation , given that they are often substantiated with forensic examinations or other medical certificates . ... In the following examples , an ORG was not carried out although the nature of the offences required it : ( a ) use of physical force : e.g. ... striking and subsequent miscarriage of a pregnant woman of GPE origin ... ORG observed that the NORP Police omit , on a regular basis , to institute disciplinary proceedings even in cases where the existence of strong objective evidence , such as witness statements , photographs , forensic reports , medical certificates etc . , can not be denied . Such evidence can not be summarily overruled but needs to be examined thoroughly through the formal procedure of an SAI . Cases with strong evidence requiring an ORG that was never conducted : ( a ) forensic or medical reports : e.g. ... a pregnant woman of GPE origin suffered a miscarriage after being struck ... ”" ]

[ "14", "3" ]

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[ "3" ]

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[ "The first applicant , Miss PERSON , is a NORP citizen born in DATE and currently resident in GPE . At birth the applicant was registered as being of the male sex . Prior to her gender reassignment treatment ( see paragraph CARDINAL below ) she was married . She has CARDINAL daughter from that marriage , which is now dissolved .", "In DATE the first applicant began treatment at a gender identity clinic in GPE and , on a date unspecified , successfully underwent sex reassignment surgery and treatment . She changed her name by deed poll to her present name . The change of name was recorded on her passport and driving licence .", "Miss GPE refers to the difficulties which she has encountered as a result of her decision to undergo gender reassignment surgery and her subsequent change of sex .", "She states that she was informed by her consultant psychiatrist and her surgeon that she was required to obtain a divorce as a precondition to surgery being carried out . Following the divorce , the applicant ’s former spouse applied to the court to have her contact with her daughter terminated . The applicant states that the judge granted the application on the basis that contact with a transsexual would not be in the child ’s interests . The applicant has not seen her daughter since then , a period of DATE .", "Although her new name has been entered on her passport and driving licence , her birth certificate and various records including social- security and police records continue to record her original name and gender . As to her passport , she maintains that if there is a need for further enquiries about the bearer , this will inevitably lead to her former name and gender being disclosed . She cites by way of example her experience when applying for a visa to GPE embassy in GPE .", "On DATE and CARDINAL DATE Miss GPE attended court to stand surety in the sum of QUANTITY for a friend . On both occasions she was required , to her great embarrassment , to disclose to the court her previous name . She has also been dissuaded from acting as an alibi witness for a friend who was tried on criminal charges in DATE for fear of adding an element of sensationalism to the proceedings through the disclosure to the court of her original gender as inscribed on her birth certificate .", "In DATE Miss GPE was arrested for breach of firearms regulations . The charges were dropped when it was established that the pistol was a replica . Following comments of police officers indicating that they were aware that the applicant had undergone a sex - change operation , the applicant sought to discover whether these personal details were held on police computer files . She discovered that the official request for information made under the provisions of LAW DATE required her to state her sex and other names . She did not pursue the enquiry .", "On DATE the applicant entered into an insurance contract in respect of her car . The form which she was required to fill in as the basis of the contract required her to state her sex . Since she continues under GPE law to be regarded as male she was obliged to give her sex as male .", "She also notes that she is obliged under LAW DATE to disclose her former sexual identity in certain contexts under pain of criminal sanction .", "The applicant maintains that her decision to undergo gender reassignment surgery has resulted in her being subjected to discrimination at work or in relation to obtaining work . She is a pilot by profession . She states that she was dismissed by her employers in DATE as a direct consequence of her gender reassignment and has found it impossible to obtain employment in the respondent ORG in her chosen profession . She attributes this in large part to the legal position of transsexuals in that ORG .", "The second applicant , Miss PERSON , is a NORP citizen born in DATE . She has been living in the GPE since DATE and acquired GPE citizenship by naturalisation in DATE .", "The second applicant was registered at birth as being of the male sex . She states that from an early age she began to experience difficulties in relating to herself as male and when she was CARDINAL she fully understood that she was a transsexual . She left GPE in DATE as she was concerned about the consequences of being identified as a transsexual . Thereafter she led her life abroad as a female .", "DATE , Miss PERSON received psychotherapy and hormonal treatment and finally underwent gender reassignment surgery on CARDINAL DATE at ORG , GPE .", "On CARDINAL GPE , following earlier refusals , she applied to the NORP consulate in GPE seeking a change of photograph and the inscription of her new name in her passport . She was informed that this could only be carried out in accordance with an order from the GPE courts . On DATE Miss ORG obtained an order from ORG that she be issued a birth certificate by ORG in GPE recording her new name and the fact that she was of the female sex . The birth certificate was issued on DATE . In the meantime , on DATE and on production of the court order , the NORP consulate issued a new passport to the applicant recording her new name and her sex as female .", "On DATE the second applicant requested that her original birth certificate in GPE be amended to record her sex as female . By letter dated DATE , ORG ) replied that there was no provision under GPE law for any new information to be inscribed on her original birth certificate .", "Miss ORG states that she is forced to live in exile because of the legal situation in GPE . She has a male partner whom she plans to marry . She states that they would like to lead their married life in GPE but has been informed by the ORG by letter dated CARDINAL DATE that as a matter of LANGUAGE law , if she were to be held to be domiciled in GPE , she would be precluded from contracting a valid marriage whether that marriage “ took place in the GPE or elsewhere ” .", "Under LANGUAGE law , a person is entitled to adopt such first names or surname as he or she wishes . Such names are valid for purposes of identification and may be used in passports , driving licences , medical and insurance cards , etc . The new names are also entered on the electoral roll .", "Under LANGUAGE law , marriage is defined as the voluntary union between a man and a woman . In the case of PERSON v. PERSON ( [ DATE ] Probate Reports CARDINAL ) , Mr Justice PERSON ruled that sex for that purpose is to be determined by the application of chromosomal , gonadal and genital tests where these are congruent and without regard to any surgical intervention . This use of biological criteria to determine sex was approved by ORG in NORP v. PERSON ( [ DATE ] ORG ) and given more general application , the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution , notwithstanding the fact that the accused had undergone gender reassignment therapy .", "Under section CARDINAL(b ) of LAW DATE any marriage where the parties are not respectively male and female is void . The test applied as to the sex of the partners to a marriage is that laid down in the above - mentioned case of PERSON v. PERSON . According to that same decision a marriage between a male - to - female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse ( obiter per Mr Justice PERSON ) .", "Registration of births is governed by ORG “ the DATE LAW ) . Section CARDINAL(CARDINAL ) of that LAW requires that the birth of every child be registered by ORG for the area in which the child is born . An entry is regarded as a record of the facts at the time of birth . A birth certificate accordingly constitutes a document revealing not current identity but historical facts .", "The sex of the child must be entered on the birth certificate . The criteria for determining the sex of a child at birth are not defined in the LAW . The practice of the Registrar is to use exclusively the biological criteria ( chromosomal , gonadal and genital ) as laid down by Mr Justice PERSON in the above - mentioned case of PERSON v. PERSON .", "The DATE LAW provides for the correction by the Registrar of clerical errors or factual errors . The official position is that an amendment may only be made if the error occurred when the birth was registered . The fact that it may become evident later in a person ’s life that his or her “ psychological ” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error . Only in cases where the apparent and genital sex of a child was wrongly identified or where the biological criteria were not congruent can a change in the initial entry be made . It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect . No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex .", "The Government point out that the use of a birth certificate for identification purposes is discouraged by ORG , and for DATE birth certificates have contained a warning that they are not evidence of the identity of the person presenting it . However , it is a matter for individuals whether to follow this recommendation .", "A transsexual continues to be recorded for social security , national insurance and employment purposes as being of the sex recorded at birth . A male - to - female transsexual will accordingly only be entitled to a ORG pension at the ORG retirement DATE and not DATE which is applicable to women .", "In its judgment of DATE , in the case of PERSON and ORG , ORG ( ECJ ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and accordingly LAW of DATE on the implementation of the principle of equal treatment for men and women as regards access to employment , vocational training and promotion and working conditions precluded dismissal of a transsexual for a reason related to a gender reassignment . The ECJ held , rejecting the argument of ORG that the employer would also have dismissed PERSON if PERSON had previously been a woman and had undergone an operation to become a man , that", "“ ... Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment , he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment .", "To tolerate such discrimination would be tantamount , as regards such a person , to a failure to respect the dignity and freedom to which he or she is entitled and which the ORG has a duty to safeguard . ” ( paragraphs CARDINAL–CARDINAL )", "The ruling of the ECJ was applied by ORG in a decision handed down on DATE ( ORG v. PERSON [ DATE ] CARDINAL Industrial Law Reports ) .", "In their written observations on the legal recognition of transsexuals in comparative law ( see paragraph CARDINAL above ) , ORG suggested that over DATE there has been an unmistakably clear trend in the member ORG towards giving full legal recognition to gender reassignment . According to the study carried out by ORG , the majority of member GPE now make provision for such recognition . For example , out of CARDINAL countries analysed , CARDINAL ( including GPE ) do not permit a change to be made to a person ’s birth certificate in CARDINAL form or another to reflect the re - assigned sex of that person ." ]

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[ "12", "14", "8" ]

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[ "ORG On DATE Mr PERSON was stopped by the police while driving his car . He refused to submit to a breath test . In a \" sentence order \" ( PERSON ) of the same day the GPE district authority ( ORG ) ordered him to pay a fine of CARDINAL NORP schillings ( ORG ) with TIME ' imprisonment in default , for an offence under section CARDINAL(CARDINAL)(b ) taken together with section CARDINAL(CARDINAL ) of FAC ( Straßenverkehrsordnung - see paragraphs CARDINAL and CARDINAL below ) .", "ORG The applicant appealed against that decision to the PERSON regional government ( PERSON ) , which dismissed the appeal on DATE .", "ORG On DATE Mr Umlauft applied to ORG ) . As his main submission , he complained of the unlawfulness of the decree of ORG ( ORG für GPE ) which provided for the use of a certain type of breathalyser , because its calibre did not in fact conform to the provisions of LAW . In the alternative , he alleged that the proceedings in question had not complied with Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention .", "On DATE , at the conclusion of a consideration of the case in private , ORG declined to accept the appeal for adjudication ( Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) - see paragraph CARDINAL below ) , since , in view of its case - law on LAW , it did not have sufficient prospects of success ; moreover , the case did not lie outside the jurisdiction of ORG ( Verwaltungsgerichtshof ) .", "ORG At Mr PERSON 's request , it referred the application to ORG on DATE .", "ORG Reiterating in substance the arguments he had set out before ORG , the applicant said that his refusal to blow into the breathalyser could not amount to a breach of LAW , since the apparatus did not comply with the applicable regulations and statutory provisions . He also asked ORG to refer the question of the lawfulness of the decree to ORG again for review ( PERSON ) , together with the question whether the proceedings had complied with LAW . He did not ask it to hold a hearing .", "On DATE ORG dismissed the appeal on the following grounds :", "\" In the instant case , however , having regard to the refusal to submit to a breath test , it is of little relevance to know what would have been the significance , as regards the seriousness of the intoxication , of the fact that the colouring had reached or gone beyond the mark on the tube .", "Having regard to the unlawfulness ( GPE ) of refusing to submit to a breath test , which is the offence the applicant was charged with , the fact that the tube which was to be used to analyse his exhaled breath did not comply with the aforementioned decree is not , in administrative criminal law , of such importance as to require the impugned decision to be set aside .", "...", "Since it is apparent from the very content of the application that the contravention of the law alleged by the applicant has not occurred , the application falls to be dismissed at a private sitting without further formality under section CARDINAL(CARDINAL ) of LAW . \"", "The court refused to refer the case to ORG , holding that the latter had already ruled on the other CARDINAL points raised by the applicant .", "ORG Under LAW DATE it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or QUANTITY respectively . The same section also lays down the conditions for the use of breathalysers and blood tests .", "ORG In its DATE version , section CARDINAL(CARDINAL ) of the Act provided :", "\" It shall be an administrative offence ( PERSON ) , punishable with a fine of not CARDINAL and not QUANTITY or , in default of payment , with DATE imprisonment , for any person", "...", "( b ) to refuse to submit to a breath test where the conditions laid down in section CARDINAL are satisfied ;", "... \"", "ORG In DATE , at the time when ORG ratified LAW ( see paragraph CARDINAL below ) , section CARDINAL of LAW ( ORG ) provided :", "\" Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order , safety and a proper flow of traffic . \"", "Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) provides :", "\" Hearings by trial courts in civil and criminal cases shall be oral and public . Exceptions may be prescribed by law . \"", "ORG By Article CARDINAL para . CARDINAL of LAW , ORG , when an application ( Beschwerde ) is made to it , has to determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed by the LAW or has applied regulations ( Verordnung ) contrary to the law , a law contrary to LAW or an international treaty incompatible with NORP law .", "Article CARDINAL para . CARDINAL provides :", "\" Up to the time of the hearing ORG may by means of a decision ( ORG ) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The court may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . \"", "ORG By LAW para . CARDINAL of LAW , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful .", "Section CARDINAL(CARDINAL ) of LAW ( Verwaltungsgerichtshofsgesetz ) provides :", "\" Applications from whose content it is apparent that the contravention of the law alleged by the applicant has not occurred shall be dismissed , at a private sitting , without further formality . \"", "Section CARDINAL(CARDINAL ) provides , in particular , that at the end of the preliminary proceedings ( GPE ) ORG must hold a hearing where the applicant makes a request to that effect .", "Section CARDINAL(CARDINAL ) reads as follows :", "\" Notwithstanding a party 's application under subsection ( CARDINAL ) , ORG may decide not to hold a hearing where", "ORG the proceedings must be stayed ( section CARDINAL ) or the application dismissed ( section CARDINAL ) ;", "ORG the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;", "ORG the impugned decision must be quashed as unlawful on account of a breach of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;", "ORG the impugned decision must be quashed because its content is unlawful according to the established case - law of ORG ;", "ORG neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed ;", "ORG it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further . \"", "ORG - paragraphs CARDINAL of section CARDINAL ) were in force in DATE ; sub - paragraphs CARDINAL and CARDINAL were inserted in DATE and sub - paragraph CARDINAL in DATE .", "Section CARDINAL(CARDINAL ) of the Administrative Court Act provides :", "\" In so far as ORG does not find any unlawfulness deriving from the respondent authority 's lack of jurisdiction or from breaches of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) ) ... , it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to CARDINAL of the parties might be decisive for ruling on [ CARDINAL of these complaints ] ... , it must hear the parties on this point and adjourn the proceedings if necessary . \"", "Section CARDINAL(CARDINAL ) of the same LAW states that , save as otherwise provided , ORG must either dismiss an application as ill - founded or quash the impugned decision .", "By section ORG ) ,", "\" The Administrative Court shall quash the impugned decision if it is unlawful", "ORG by reason of its content , [ or ]", "ORG because the respondent authority lacked jurisdiction , [ or ]", "ORG on account of a breach of procedural rules , in that", "( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or", "( b ) the facts require further investigation on an important point , or", "( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . \"", "ORG 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 ( PERSON ) \" ( section CARDINAL(CARDINAL ) ) .", "ORG In a judgment of CARDINAL DATE ( G CARDINAL/CARDINAL ) ORG held :", "\" From the fact that it has been necessary to extend the reservation in respect of LAW to cover the procedural safeguards of LAW , because of the connection between those CARDINAL provisions ( article CARDINAL , article CARDINAL ) , it follows that , conversely , the limited review ( die ( bloß ) nachprüfende PERSON ) carried out by ORG or ORG is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation . \"", "ORG Pursuant to LAW , administrative courts called \" independent administrative tribunals \" ( ORG ) were set up in the Länder with effect from DATE . The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences ( ORG ) .", "ORG The instrument of ratification of the Convention deposited by ORG on DATE contains , inter alia , a reservation worded as follows :", "\" The provisions of LAW shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure , BGBl [ ORG ] No . CARDINAL , subject to review by ORG or ORG as provided for in LAW . \"" ]

[ "6" ]

[ "6-1" ]

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[ "NORP The applicant , Mr PERSON , is an NORP national born in GPE on DATE .", "On DATE the applicant instituted proceedings before ORG .", "NORP The proceedings were concluded by a judgment dated DATE .", "On DATE the applicant applied to ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto Act ” , complaining about the excessive length of the above - mentioned proceedings .", "ORG , by a decree filed in the relevant registry on DATE , awarded to the applicant the sum of CARDINAL ORG as compensation .", "On an unspecified date in DATE , the applicant challenged the decree of ORG of GPE before ORG complaining about the insufficient amount of the compensation obtained .", "The sum due was paid to the applicant on DATE . On DATE the applicant lodged an application with the ORG [ no . MONEY ] complaining about the delayed payment of the “ Pinto ” compensation .", "ORG , by a decision filed in the relevant registry on CARDINAL DATE , dismissed the appeal and ordered the applicant to pay the legal fees , costs and expenses of the proceedings quantified at CARDINAL EUR .", "On DATE the applicant lodged a further application with the ORG [ no . CARDINAL/CARDINAL ] in relation to the same “ Pinto ” proceedings , complaining about the insufficiency of the “ Pinto ” compensation awarded to him , the order of ORG to pay legal fees , costs and expenses of the proceedings and the ineffectiveness of the “ Pinto ” remedy .", "The applicant , Mr PERSON , is an NORP national born in GPE ( GPE ) on DATE .", "On DATE the applicant instituted administrative proceedings before ORG .", "The proceedings ended on DATE .", "NORP On DATE the applicant instituted “ Pinto ” proceedings before ORG of GPE , seeking compensation for the excessive length of the above - mentioned proceedings , which at the time were still pending .", "ORG of GPE , by a decree filed in the relevant registry on DATE , awarded to the applicant the sum of CARDINAL,CARDINAL.CARDINAL EUR as compensation .", "On an unspecified date in DATE the applicant challenged the decree before ORG , complaining about the insufficiency of the compensation obtained .", "The sum due was paid to the applicant on DATE .", "ORG , by a decision filed in the relevant registry on CARDINAL DATE , dismissed the appeal and ordered the applicant to pay the legal fees , costs and expenses of the proceedings quantified at CARDINAL EUR .", "On DATE the applicant lodged an application with the ORG [ no . CARDINAL ] complaining , inter alia , about the insufficient amount of the “ Pinto ” compensation .", "On DATE the applicant lodged a further application with the ORG [ no . CARDINAL/CARDINAL ] in relation to the same “ Pinto ” proceedings , complaining about the delayed payment of the “ Pinto ” compensation and the ineffectiveness of the “ Pinto ” remedy .", "The applicant , Mr PERSON , is an NORP national born in GPE on DATE .", "On DATE , the applicant filed an appeal against a decision of the ORG before ORG .", "The final judgment in the proceedings was delivered on DATE .", "On DATE the applicant instituted “ Pinto ” proceedings before ORG , seeking compensation for the excessive length of the above - mentioned proceedings .", "By a decree filed in the relevant registry on DATE , ORG of GPE awarded to the applicant the sum of CARDINAL ORG as compensation .", "On an unspecified date in DATE , the applicant challenged the decree before ORG , complaining about the insufficiency of the compensation obtained .", "On DATE the sum awarded by ORG was paid to the applicant .", "On DATE the applicant lodged an application with the ORG [ no . PERSON ] complaining about the delayed payment of the compensation awarded by ORG .", "By a decision filed in the relevant registry on DATE , ORG upheld the appeal of the applicant and increased the compensation to CARDINAL ORG .", "On DATE the sum due was paid to the applicant .", "On DATE the applicant lodged a further application with the ORG [ no . CARDINAL/CARDINAL ] in relation to the same “ Pinto ” proceedings , complaining about the delayed payment of the “ Pinto ” compensation awarded by ORG and the ineffectiveness of the “ Pinto ” remedy .", "The applicant , Mr PERSON , is an NORP national born in GPE on DATE .", "On DATE the applicant instituted administrative proceedings before ORG . The final judgment in the proceedings was delivered on DATE .", "On an unspecified date in DATE the applicant instituted “ Pinto ” proceedings before ORG of GPE , seeking compensation for the excessive length of the above - mentioned proceedings .", "By a decree filed in the relevant registry on DATE , ORG of GPE awarded to the applicant the sum of CARDINAL ORG as compensation .", "The sum due was paid to the applicant on DATE .", "On DATE the applicant filed an application ( no . CARDINAL/CARDINAL ) before the ORG complaining about the delayed payment of the compensation awarded by ORG of GPE .", "On an unspecified date in DATE the applicant challenged the decree of ORG of GPE before ORG , complaining about the insufficiency of the compensation obtained .", "By a decision filed in the relevant registry on DATE , ORG upheld the appeal and increased the compensation to CARDINAL ORG .", "The sum due was paid to the applicant on DATE .", "On DATE the applicant lodged a further application with ORG ( no . CARDINAL ) in relation to the same “ Pinto ” proceedings , complaining about the delayed payment of the “ Pinto ” compensation awarded by ORG and the ineffectiveness of the “ Pinto ” remedy ." ]

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[ "The applicant was born in DATE and is a resident of GPE . At the time of the events , he lived in GPE .", "On DATE a burglary was committed where , inter alia , a television and a video recorder were stolen .", "On an unspecified date a preliminary investigation was opened .", "On DATE the apartment where the applicant was living was searched by the police , with the apparent subsequent approval of ORG . Neither the applicant nor any other representative of the household was present . The search was conducted in the presence of CARDINAL witnesses , neither of them was indicated to be the residence 's manager or a representative of the municipality . Various items were seized among which were CARDINAL photo cameras , a hi - fi system and a wrench .", "On DATE , CARDINAL DATE , the applicant was arrested in GPE and taken into police custody . He was then transferred to GPE .", "On DATE , under an order issued by an investigator and approved by ORG , the applicant was placed DATE preliminary detention as of TIME and held at ORG . The applicant was suspected of having committed the burglary on DATE because the stolen television and a wrench , allegedly used to perpetrate the offence , had been found in his apartment . In addition , at the time of his arrest the applicant had apparently attempted to abscond .", "On DATE ORG extended the preliminary detention of the applicant for DATE until TIME on DATE .", "On DATE the applicant , together with CARDINAL other individuals , was charged with having committed the burglary of CARDINAL DATE . He was remanded in custody upon a decision of an investigator which was confirmed later in DATE by ORG . In ordering the remand in custody , the investigator stated that the applicant lacked a permanent address , that he had committed numerous other burglaries , that he might re - offend and that he might abscond as he had apparently done in DATE when a national arrest warrant had been issued against him .", "On DATE , under an order issued by an investigator , the charges against the applicant were amended to include another CARDINAL burglaries and his detention on remand was maintained . In ordering the continued detention , the investigator cited the gravity of the offences with which the applicant had been charged , the likelihood that he might abscond and his personality .", "On DATE the applicant appealed against his detention . He maintained that his continued detention was unwarranted as there was no danger that he would abscond or re - offend because , inter alia , he had a permanent address in another city and his brother could pay his bail . The applicant also relied on LAW in his submissions .", "NORP ORG dismissed the applicant 's appeal on DATE . The court found that the applicant had been charged with a serious offence which warranted mandatory detention . In addition , the court concluded that the applicant might abscond because he did not have any personal identity documents , had no permanent address and was apparently residing in an apartment rented by CARDINAL of his friends . It also found that it was likely that he would re - offend considering the fact that he had perpetrated the offences with which he had been charged during the operational period of a previous DATE suspended sentence . In respect of the arguments pertaining to LAW , the court examined them and found that the applicant 's continued detention was in conformity with the exceptions provided in the said provision .", "The applicant filed another appeal against his detention on CARDINAL DATE arguing that there was no longer a danger that he might abscond or re - offend because his brother was willing to pay his bail , support him financially and provide him with employment .", "On DATE ORG dismissed the applicant 's appeal . The court found , inter alia , that the applicant had failed to provide evidence that he even had a brother and was unable to indicate where the said brother lived , what kind of business he was running and where .", "On DATE the applicant filed his third appeal against his detention arguing that he had been in detention for DATE and that there was no longer a danger that he might abscond or re - offend because his brother was willing to pay his bail , support him financially and provide him with employment .", "An indictment was filed against the applicant on an unspecified date .", "The judge rapporteur of ORG , also on an unspecified date , ruled that the court would examine the applicant 's latest appeal at its hearing scheduled for DATE . For undisclosed reasons the hearing was postponed to DATE .", "NORP ORG dismissed the applicant 's third appeal at its hearing on DATE . The court found that the applicant had been charged with a serious offence and that he might abscond because he did not have a permanent address and was residing in an apartment rented by CARDINAL of the co - accused . It also found that it was likely that he would re - offend considering the fact that he had perpetrated the offences with which he had been charged during the operational period of a previous DATE suspended sentence . The decision was upheld on appeal by ORG on DATE .", "NORP In response to a fourth appeal of the applicant against his detention filed on an unspecified date , ORG found in his favour on CARDINAL DATE . On appeal by the prosecuting authorities the decision was quashed by ORG on DATE . The latter court found that the applicant might abscond because he did not have a permanent address and was residing in an apartment rented by CARDINAL of his friends . It also found that it was likely that he would re - offend considering his past criminal tendencies and that he lacked employment .", "The subsequent development of the criminal proceedings is unclear . It is also unknown whether , and when , the applicant was released or granted bail . However , as of the date of the applicant 's submissions of DATE , the case was still pending before the court of first instance .", "The applicant contended , which the Government did not challenge , that as from CARDINAL DATE he was detained for DATE at ORG and was then transferred to ORG where he remained at least until DATE .", "In the applicant 's submission the cells were small , overcrowded and below street level . There was no natural light or fresh air in the cells . Quite often there were rodents and cockroaches . A bucket was provided for the sanitary needs of the detained . There was no hot water , soap or other toiletries . The applicant was not permitted to go out of his cell for exercise . The food provided was of insufficient quantity and substandard . The applicant was not allowed to read newspapers or books .", "In the applicant 's submission the conditions in the Pazardzhik Prison were slightly better than those in ORG . Similarly , though , the food was insufficient and of the same inferior quality ; the cells were small and overcrowded ; fresh air and light were insufficient and a bucket was provided for the sanitary needs of the detained . Limited exercise was provided in the prison yard .", "Under ORG , as in force at the relevant time , the police were empowered , on the basis of an order to that affect , to arrest and take a person into custody who , inter alia , had committed an offence or whose identity could not been ascertained due to lack of appropriate personal identity documents ( section CARDINAL ( CARDINAL ) ) . A person taken into police custody had the right to be assisted by a lawyer and to appeal against his detention to the domestic courts , which were required to immediately rule on such an appeal ( section CARDINAL ( CARDINAL ) and ( CARDINAL ) ) . Police custody could not be longer than TIME ( section CARDINAL ) .", "In a reported case of DATE , ORG upheld a finding of a lower court that an order for taking a person into police custody had been unlawful due to lack of legal grounds ( реш. № DATE от CARDINAL ноември DATE г. по адм. д. № DATE г. , V отд. на ORG ) .", "The relevant provisions of LAW ( the “ ORG ” ) and the NORP courts ' practice at the relevant time are summarised in the ORG 's judgments in several similar cases ( see , among others , ORG v. GPE [ ORG ] , no . ORG , § § DATE , ORG CARDINAL-II ; PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL ( extracts ) ) .", "As of that date the legal regime of detention under the ORG was amended with the aim to ensure compliance with ORG ) .", "The relevant part of the amended Article CARDINAL provides :", "“ ( CARDINAL ) ORG pending trial shall be ordered [ in cases concerning ] offences punishable by imprisonment ... , where the material in the case discloses a real danger that the accused person may abscond or commit an offence .", "( CARDINAL ) In the following circumstances it shall be considered that [ such ] a danger exists , unless established otherwise on the basis of the evidence in the case :", "NORP in cases of special recidivism or repetition ;", "where the charges concern a serious offence and the accused person has a previous conviction for a serious offence and a non - suspended sentence of not less than DATE imprisonment ;", "where the charges concern an offence punishable by not less than DATE imprisonment or a heavier punishment .", "( CARDINAL ) Detention shall be replaced by a more lenient measure of control where there is no longer a danger that the accused person may abscond or commit an offence . ”", "It appears that divergent interpretations of the above provisions were observed in the initial period of their application upon their entry into force on DATE .", "NORP In DATE ORG clarified that the amended LAW excluded any possibility of a mandatory detention . In all cases the existence of a reasonable suspicion against the accused and of a real danger of him absconding or committing an offence had to be established by the authorities . The presumption under paragraph CARDINAL of Article CARDINAL was only a starting point of analysis and did not shift the burden of proof to the accused ( ORG ) .", "At the relevant time , LAW ORG provided that in the course of an enquiry ( i.e. when there is insufficient evidence to initiate formal criminal proceedings ) a search of LOC could be conducted only in the course of examining a crime scene and if its immediate execution was the only possibility to collect and secure evidence .", "At the relevant time , LAW ORG provided that a search of LOC may be carried out if there is probable cause to believe that objects or documents , which may be relevant to a case , would be found in them . Such a search could be ordered by the trial court ( during the trial phase ) or by the prosecutor ( during the pre - trial phase ) ( LAW ) .", "A search of LOC was to be conducted in the presence of witnesses and the person using them or an adult member of his family . In case the person using them or an adult member of his family could not be present , the search was to be conducted in the presence of the residence 's manager or a representative of the municipality ( LAW ) .", "There was no special procedure through which a search warrant issued by a prosecutor could be challenged . Thus , the only possible appeal was a hierarchical one to the higher prosecutor ( Article CARDINAL ) , which did not have suspensive effect ( Article CARDINAL ) .", "ORG of DATE ( the “ ORG ” ) provides that the ORG is liable for damage caused to private persons by ( a ) the illegal orders , actions or omissions of government bodies and officials acting within the scope of , or in connection with , their administrative duties ; and ( b ) the organs of the investigation , the prosecution and the courts for unlawful pretrial detention , if the detention order has been set aside for lack of lawful grounds ( sections CARDINAL - CARDINAL ) . The relevant domestic law and practice under sections CARDINAL and CARDINAL of the ORG has been summarised in the cases of PERSON v. PERSON ( no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL , § § CARDINAL CARDINAL , DATE ) .", "In respect of conditions of detention , despite some initial uncertainty as to the applicability of the ORG in respect of such complaints , in a number of recent cases the domestic courts have ruled that the ORG 's liability does arise under the ORG and its LAW in particular ( реш. от CARDINAL г. по гр. д. № CARDINAL г. PERSON ; реш. № CARDINAL от CARDINAL г. по въззивно гр. д. № CARDINAL г. PERSON ОС ; реш. № CARDINAL от CARDINAL г. по гр. д. № CARDINAL г. на Габровският РС ; реш. CARDINAL.CARDINAL.CARDINAL г. по гр. д. № CARDINAL г. на Софийският РС ; реш. № CARDINAL от CARDINAL.CARDINAL.CARDINAL г. по гр. д. № CARDINAL г. на ORG ; реш. № CARDINAL от CARDINAL г. по гр. д. № CARDINAL/CARDINAL г. PERSON ) .", "In respect of unlawful searches of LOC , the only reported case dates DATE where ORG examined , on appeal , an action for damages stemming from an allegedly unlawful search and seizure conducted by the authorities in the home of the claimant . In that particular case , the court rescinded the judgment of the lower court and remitted the case solely because the latter court had failed to examine the action under LAW ORG , but had rather examined it as a tort action . Accordingly , ORG instructed the lower court to re - examine the said action solely under the ORG ( реш. от DATE г. по гр. д. № MONEY г. , ORG , IVб отд. ) .", "The ORG visited GPE in DATE , DATE , DATE and DATE . ORG and ORG were visited in DATE . There are also general observations about the problems in all ORG detention facilities in the DATE , DATE and DATE reports .", "The ORG found that most , albeit not all , of the ORG detention facilities were overcrowded . With the exception of CARDINAL detention facility where conditions were slightly better , the conditions were as follows : cells did not have access to natural light ; the artificial lighting was too weak to read by and was left on permanently ; ventilation was inadequate ; the cleanliness of the bedding and the cells as a whole left much to be desired ; detainees could access a sanitary facility twice a day ( morning and evening ) for TIME and could take a DATE shower ; outside of the CARDINAL daily visits to the toilets , detainees had to satisfy the needs of nature in buckets inside the cells ; although according to the establishments ' internal regulations detainees were entitled to a “ DATE walk ” of TIME , it was often reduced to TIME or not allowed at all ; no other form of out - of - cell activity was provided to persons detained .", "The ORG further noted that food was of poor quality and in insufficient quantity . In particular , the DATE 's “ hot meal ” generally consisted of a watery soup ( often lukewarm ) and inadequate quantities of bread . At the other meals , detainees only received bread and a little cheese or halva . Meat and fruit were rarely included on the menu . Detainees had to eat from bowls without cutlery – not even a spoon was provided .", "The ORG also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that , as a result , detainees ' contacts with the outside world were very limited . There was no radio or television .", "The ORG concluded that the NORP authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “ almost without exception , the conditions in the ORG detention facilities visited could fairly be described as inhuman and degrading ” . In reaction , the NORP authorities agreed that the ORG delegation 's assessment had been “ objective and correctly presented ” but indicated that the options for improvement were limited by the country 's difficult financial circumstances .", "NORP In DATE the ORG recommended to the NORP authorities , inter alia , that sufficient food and drink and safe eating utensils be provided , that mattresses and blankets be cleaned regularly , that detainees be provided with personal hygiene products ( soap , toothpaste , etc . ) , that custodial staff be instructed that detainees should be allowed to leave their cells during DATE for the purpose of using a toilet facility unless overriding security considerations required otherwise , that the regulation providing for TIME exercise per day be fully respected in practice , that cell lighting and ventilation be improved , that the regime of family visits be revised and that pre - trial detainees be more often transferred to prison even before the preliminary investigation was completed . The possibility of offering detainees TIME outdoor exercise per day was to be examined as a matter of urgency .", "The ORG established that ORG had CARDINAL cells , situated in the basement , and at the time of the visit accommodated QUANTITY detainees , including QUANTITY women in a separate cell .", "Six cells measuring QUANTITY were designed to accommodate CARDINAL detainees ; the other CARDINAL , intended for CARDINAL occupants , measured CARDINAL - and - QUANTITY . This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the ORG . However , all the remaining shortcomings observed in the other ORG detention facilities – dirty and tattered bedding , no access to natural light , absence of activities , limited access to sanitary facilities , etc . – also applied there . Even the TIME exercise rule , provided for in the internal regulations and actually posted on cell doors , was not observed .", "In this report the ORG found , inter alia , that the prison was seriously overcrowded and that prisoners were obliged to spend most of DATE in their dormitories , mostly confined to their beds because of lack of space . It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities .", "The ORG noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements .", "In most investigation detention facilities visited in DATE , with the exception of a newly opened detention facility in GPE , conditions of detention were generally the same as those observed during the ORG 's DATE visit , as regards poor hygiene , overcrowding , problematic access to toilet / shower facilities and a total absence of outdoor exercise and outofcell activities . In some places , the situation had even deteriorated .", "In the ORG detention facility , as well as in CARDINAL other places , detainees “ had to eat with their fingers , not having been provided with appropriate cutlery ” .", "During DATE visit some improvements were noted in the country 's investigation detention facilities , severely criticised in previous reports . However , a great deal remained to be done : most detainees continued to spend DATE on end locked up in overcrowded cells TIME a day .", "Concerning prisons , the ORG drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates ." ]

[ "3", "5", "8" ]

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

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[ "The facts of the case , particularly concerning events on DATE , were disputed by the parties . Having regard however to the length of time which had elapsed since those events and the nature of the documentary material submitted by the parties , the ORG decided that a fact finding investigation , involving the hearing of witnesses , would not effectively assist in resolving the issues . It has proceeded to examine the applicant ’s complaints on the basis of the written submissions and documents provided by the parties .", "The applicant ’s and ORG ’s submissions concerning the facts are set out below ( Sections A and B ) . The documents relating to the events and complaints are also summarised ( Section C ) .", "NORP In DATE , the applicant was DATE and the father of CARDINAL children , living in the GPE hamlet QUANTITY from the village of ORG ( also known as PERSON or PERSON ) , in the PERSON district , GPE in LOC . This village had been subject to previous attacks by security forces in conjunction with village guards during DATE ( see application no . CARDINAL/CARDINAL , PERSON and Others v. GPE ) .", "On DATE , the applicant ’s village was subject to an armed attack by village guards supported by a helicopter gunship under the direction of ORG and gendarmes from PERSON . The attack started at TIME . The applicant was at his home in GPE with his wife PERSON , his sons PERSON and PERSON and his daughter PERSON . They heard sounds of gunshots coming from the village and saw flames and smoke starting to rise from different parts of the village . Women and children fleeing the village ran towards the applicant ’s hamlet . The applicant called to his son PERSON to take the tractor and flee , which he did . The applicant saw a number of village guards whom he knew – PERSON , PERSON , PERSON and PERSON ( this family name appears in some documents as PERSON ) .", "Hamit and ORG pleaded with the village guards holding the Koran . The guards nonetheless burned the applicant ’s house and burned his crops . The applicant saw that a helicopter gunship was firing at his son PERSON . PERSON got off the tractor and put his hands over his head . The helicopter descended to within QUANTITY , took a look at him and his friends and then flew away . PERSON carried on by tractor to NORP village , QUANTITY away . Looking back from NORP , he could see his house and fields burning . When it was dark , the applicant went by tractor to Altinkum . He returned later when the village guards had left .", "His house was damaged as follows . The walls were riddled with bullets and all the windows were broken . The ORG diesel tank attached to the back of the tractor had been pierced by bullets and all the diesel had poured out . The tank had caught fire because of the bullets . QUANTITY full of diesel , a tractor trailer and the wheels of the trailer were riddled with bullets . His tractor , irrigation pump and CARDINAL irrigation pipes had been destroyed by bullets . CARDINAL sacks in front of the house had also been burned . QUANTITY of harvested wheat , QUANTITY of barley and CARDINAL lorryloads of straw had been burned , a whole year ’s labour .", "During the attack on ORG itself , a CARDINAL-year - old villager PERSON and a DATE boy PERSON were shot and killed . The village guards shot at and set on fire other houses , including that of PERSON , and destroyed crops in the fields and burned crop stores .", "The PERSON district gendarme captain , Captain PERSON , told the villagers that they were to say that the terrorists raided the village or it would cost them dear . The captain drew up a report stating that there had been a clash between terrorists and village guards and had villagers sign it .", "The applicant continued to live in his house for DATE . He was summoned DATE after the incident to the LOC gendarme station and detained there by the commander who was angry with him for staying in Gom . The commander summoned his son PERSON and told him that the applicant would not be released unless he burned down the house . PERSON burned the house and the applicant was released . The applicant was later told by a gendarme at Bayrambası that the gendarmes had taken photographs of the burned house . The PERSON district gendarme commander had been angry as he wanted photographs of a house in good condition . The gendarmes had then come and taken photographs of the applicant in front of his son ’s house .", "On DATE , the applicant was summoned to ORG where he allegedly counter - signed a report by sergeant PERSON and gendarme private PERSON . This was sent to the PERSON chief public prosecutor by PERSON . On DATE , the applicant was forced to sign a statement by the PERSON public prosecutor .", "The PERSON public prosecutor opened an investigation into the complaints of the applicant . On DATE , a decision was taken that due to lack of evidence the investigation could not be pursued .", "An investigation also took place into the deaths which took place on DATE . This substantiated the applicant ’s claim that an attack took place on NORP village by armed village guards from ORG , that the village guards fired at the houses , damaged or destroyed the villagers’ property and crops , that they were supported by local gendarme units including a helicopter and that there were no members of the ORG in the village . The applicant refers inter alia to the petition of PERSON dated DATE , the statements of GPE and ORG dated DATE , of PERSON and PERSON dated DATE , of Sevket GPE dated DATE and of ORG dated DATE .", "On DATE , the public prosecutor issued a decision of non - jurisdiction in respect of the CARDINAL deaths and referred the case to ORG . On DATE , that court referred the case back to PERSON concerning the prosecution of CARDINAL village guards , PERSON , PERSON , PERSON and PERSON . In DATE , the CARDINAL village guards were acquitted of murder on the basis of insufficient evidence .", "On DATE , PERSON and CARDINAL of his relatives were going to pick up wood cut down by the PERSON stream ( elsewhere referred to as GPE or GPE ) . On coming across ORG terrorists resting by the stream , an armed clash broke out . ORG and PERSON were wounded . Other Boyunlu village guards watching from a hill noticed the clash and went to help . The terrorists fled towards PERSON . The gendarmerie were informed by wireless . As the terrorists passed through the village , they fired their guns at random , killing PERSON and PERSON . The terrorists were chased out of the village by the village guards and gendarmes . As it became dark , they gave up the pursuit . TIME , the area was searched but nothing was found save that the terrorists had run away towards ORG .", "On DATE , the gendarmes drew up an incident report and a location sketch map . The statements of the villagers were taken by the gendarmerie . PERSON , father of the murdered child , stated that he had been hit on the head by PERSON , the husband of the murdered woman and that he blamed the ORG for the murder of his son . On DATE , CARDINAL village guards gave their statements which corroborated their stories and were not contradictory on any important point . These described how the terrorists had fired on the village guards by the stream and then fled through PERSON firing at random . On DATE , statements were taken from the CARDINAL wounded village guards who had been taken to hospital . These supported the other village guards .", "On DATE , PERSON lodged a complaint with the PERSON public prosecutor alleging that the NORP village guards had attacked ORG , killed his wife and burned the crops and some of the houses . The public prosecutor took statements from his sister - in - law , several other villagers and the village guards accused of the attack . On DATE , PERSON and PERSON made statements to the public prosecutor alleging that their son had been murdered by village guards . These statements were seriously contradictory , e.g. PERSON , contrary to his earlier statement , said that he was in the village and saw his son shot , while PERSON said that he was outside the village .", "On DATE , the public prosecutor gave a decision of non - jurisdiction and sent the case to ORG . On DATE , the file was sent back as the accused were village guards .", "The CARDINAL village guards were tried by ORG , which on DATE released them due to lack of evidence . The court did not rely on the statements of the complainants as they were contradictory .", "The applicant did not make any complaint to the public prosecutor about events . On being informed that he had made an application to GPE , the public prosecutor questioned him with a view to initiating an investigation . In his statement the applicant mentioned that none of his possessions had been burned and stated that he did not make any complaint about this . The public prosecutor therefore decided not to pursue the investigation further .", "On DATE , the applicant was at his home in GPE hamlet , QUANTITY from GPE . At TIME , shots were heard coming from the village . Smoke and flames appeared . Village women and children were fleeing in his direction . At first he thought it was the soldiers raiding the village . He later discovered that it was the protectors . He called to his son PERSON in the fields and told him to escape . His son got on his tractor and fled . He knew some of the village guards and recognised PERSON , PERSON , PERSON and PERSON coming towards their hamlet . His daughter PERSON and son PERSON brought out the Koran and pleaded with the guards not to burn their house and crops . Despite that , the village guards burned the house and crops . He saw that a helicopter was firing at his son in the tractor . He ran away to hide with the women from the village ; his wife and children did not leave the house . When it got dark , he and other villagers went on a tractor to Altinkum . In TIME , thinking the village guards had gone , he went to his house . No - one was there . He saw nothing had happened to the objects in the house but the walls of the house were full of bullet holes and the windows broken . The diesel tank of the tractor had been hit by bullets and the petrol leaking out had caught fire . The barrel full of diesel , the tractor trailer and its wheels were also shot up . The irrigation pump had been rendered unusable due to gunfire . CARDINAL empty sacks in front of the house had been burned . In the fields , he saw that QUANTITY of harvested wheat , QUANTITY of barley and CARDINAL lorry loads of straw had been completely burned .", "On the television it was said that there had been a clash between the terrorists and the village guards in the village . The Captain came to the village and shamelessly told the villagers that the terrorists had burned the village and hamlet . No guerrillas had come to the village and they would not have done such a thing .", "On TIME , the village guards of ORG , CARDINAL , carried out a raid on his village of PERSON . He was working in his field at the time . He heard gunshots coming from GPE , QUANTITY from PERSON . TIME , the village guards came towards PERSON , shouting that they were going to burn and shoot up the village and claiming that the children of the PERSON villagers were guerrillas . The men in the fields were able to run away more easily , getting into tractors and fleeing . Some women and children hid in the clumps of trees near the village . He saw the village guards rake the village with gunfire . In the evening , he learned that PERSON and PERSON were shot inside the village . He got into his tractor and fled towards FAC . As they fled , guards shot at them from the ground while military helicopters fired on them from the air . When he returned later , he found that his house had been shot up and the goods inside destroyed and set on fire . His crops had also been burned and destroyed .", "The Captain from the PERSON gendarme command came to the village and said : “ You ’ll say that your crops and homes were burned and shot up by terrorists , that terrorists raided your village . If you accuse the village guards , it will cost you much dearer ” . He heard that the Captain drew up a report saying that a clash had broken out between the terrorists and village guards , that CARDINAL people had died in the cross fire and that the village had been burned and destroyed by terrorists . The report was signed by the son of PERSON , against his will . The ORG had not come to the village . The ORG was forcing them either to go tot he mountains or to leave the village . They were in fear of the village guards and their lives were in danger from them .", "The applicant had been shown the photograph submitted by the Government . He stated that the house was not his .", "He explained as follows .", "The house in those photographs was not his . On DATE , after burning houses in ORG , the village guards had come to his house in GPE , QUANTITY away , and burned his crops and fired on the agricultural equipment and their homes . He watched from QUANTITY away . The house was damaged but still habitable . He lived there for DATE . DATE , he was summoned to NORP gendarme station . The commander was angry with him and took him into detention . Then the commander summoned the applicant ’s son , PERSON , and threatened him that unless he destroyed his father ’s house , his father would not be released . So his son went to his house in Gom and destroyed it . The applicant on release went to live with PERSON in NORP village . DATE , he heard that the captain of the PERSON district gendarmerie was asking for photographs of his house . The PERSON gendarmes took photographs of his destroyed house and sent them to PERSON . The applicant heard from a soldier at the police station that the PERSON gendarme captain was angry as he had wanted pictures of a house in good condition . The soldiers then came to the applicant ’s son ’s house and took photographs of the applicant outside his son ’s house . At the time , the applicant had no idea why they were doing so .", "As regarded the statement which he made to the PERSON public prosecutor on DATE , he stated that he had been detained on various occasions in connection with this incident and subject to threats over his complaints against the ORG . He was forced to make such a statement at the public prosecutor ’s as he was afraid of being taken into detention again and threatened .", "In this statement taken by a lawyer , PERSON , the applicant said that he was under pressure due to his application . He had been called to the gendarmes’ station and threatened . After he submitted documents to the ORG , the documents were sent to PERSON and the gendarmes there , who were perpetrators of the incident , threatened him to force him to withdraw his complaints . He was frightened that they would do bad things .", "In DATE , a clash broke out between village guards and the ORG in the area between ORG and PERSON villages . CARDINAL village guards were wounded . Towards TIME , a large number of village guards entered PERSON and began to burn the harvested crops . After burning PERSON , the guards came to the applicant ’s hamlet . His house was the only one in the hamlet . They set his house alight and raked it with gunfire . His son fled on the tractor . The village guards shot at the trailer . The applicant ’s irrigation pump , a QUANTITY diesel tank , QUANTITY of diesel , a tractor and CARDINAL irrigation pipes were rendered unusable by gunfire . The guards also burned QUANTITY of wheat , QUANTITY of barley and CARDINAL lorryloads of straw . He , his wife PERSON , his daughter PERSON and his sons PERSON and PERSON ( now in GPE ) were in the hamlet at this time . Afterwards , they moved to live as a family in PERSON . DATE , the Boyunlu village guards came and told them they had to leave their house and they moved into PERSON . The village guards burned GPE and his house and their statements were not true .", "DATE , he was summoned to NORP gendarme station by the PERSON public prosecutor . The station commander threatened him and the village muhtar Ebedin PERSON , saying that he had made a complaint about the ORG and that if he did not change his testimony it would not be good for him . They then went to the public prosecutor ’s office and as he was frightened he could not say that his house had been burned down . He was illiterate and his statement was not read to him . He was also arrested DATE after the attack and detained for DATE . He was tortured and ill - treated . He did not say his house was burned down as he was afraid that he would be tortured . Ebedin ORG , the muhtar , was not keen on testifying as he was scared , as was the imam . The photographs taken by the Government of his house were in fact of the house of his son PERSON in PERSON .", "At the time of the incident , he was staying with his father , the applicant , in GPE hamlet . A clash broke out between the ORG and village guards . CARDINAL village guards were wounded . After that the guards set PERSON alight and came to their hamlet . When he saw them coming , he was scared and drove off on the tractor . He told CARDINAL others in the fields and they got on their tractors too . As they crossed a stream , a helicopter opened fire on them . They got off their tractors and put their hands on their heads . The helicopter descended to QUANTITY above their heads , looked at them and then flew away . He got on his tractor and went on to NORP village . Looking back from there , he could see that the house and fields had been burned . After DATE and a night he returned . The house was a ruin , part of it burned and shot up . The tractor and trailer were burned , shot up and unusable . Harvested crops had been burned and a diesel tank , QUANTITY of diesel , a motor pump , and water pipes had been shot up and were unusable .", "At TIME on DATE of the incident , there were gunshots near PERSON . She was in front of the house . Bullets began to hit the house . Soldiers and village guards from ORG arrived and began to set the village alight , firing haphazardly in all directions . Everything they fired at burst into flames . They set alight the wheat and then again raided her house . They entered her house and took them all outside . They broke and burned the fridge , TV , radio - cassette player , butter maker , curtains , quilts , mattresses , rugs and kitchen implements . They set the house alight and meanwhile insulted and threatened them . They told them to leave the village or they would kill them all . They also burned crops and shot up the farm equipment . After the incident , the family moved to PERSON .", "At TIME on DATE of the incident there were gunshots near PERSON . She was in front of the house . Bullets began to hit the house . Soldiers and village guards came into the village and set it alight , firing haphazardly in all directions . Her statement reproduced in almost identical terms the statement of her mother above .", "At the time of the incident , she was living in LOC village with her husband PERSON . A clash broke out near the village . After this , village guards came to the village firing at random . A CARDINAL-year - old woman and a child were killed . They set alight harvested crops and shot up all houses . Her house was a colander and everything inside ruined . The guards then went to GPE hamlet and shot up the applicant ’s house and property and burned his crops . Her husband went with the applicant to ORG in ORG and applied to ORG . DATE , her husband was captured wounded with a ORG militant after a clash with the security forces . He was later killed for refusing to assist the security forces in capturing other members of the ORG . DATE , her house was burned by village guards and soldiers . She went to live in GPE . She had now returned to stay in PERSON and had spoken to the applicant and contacted her lawyers . She had not followed up the application about the burning of her house and the murder of her husband out of fear and as she was not able to contact her lawyers . She now wanted to take responsibility for the application made by her husband .", "NORP The petitioners complained that PERSON , PERSON and PERSON had fired at villagers from PERSON . It was stated that the aggressors were from GPE who hated and had a grudge against the PERSON village due to the latter ’s lodging of legal proceedings against the Boyunlu villagers’ illegal entry onto PERSON village lands .", "On DATE , he was attending his herd . In the evening , he heard shots towards the upper end of GPE . When he returned to the village , his son LOC was not there . He was told that he was at a neighbour ’s . TIME , a villager , PERSON , ran up , saying that Cihan had been killed in a clash between the ORG and village guards . His dead body was outside the village . GPE told him to say that he must say that the guards shot his son or the terrorists would shoot him . When the witness asked GPE who shot his son , the man hit him with a stick . The witness went to find the body . There were soldiers around . He took his son to the PERSON hospital for an autopsy . His guess was that the NORP terrorists murdered his son and filed a complaint . He also filed a complaint against the man who hit him with the stick .", "The witness was a village guard in LOC . On DATE , while he was in the village , he and others received a request for help from others who had been cutting poplar trees near PERSON and had clashed with terrorists . The guards went to the place and found that QUANTITY persons had been injured . The terrorists were firing randomly while dispersing . The guards followed them . On entering the village , the terrorists continued firing . The guards entered the village ; apparently CARDINAL villagers were killed and the terrorists ran from the village . Security forces then arrived . TIME , an operation was carried out but no result was achieved . The guards were asked to return to their village .", "The witness was a village guard in GPE . On DATE , he and other guards were told to come as there was a clash . On their arrival at the PERSON stream area they found CARDINAL injured persons . The terrorists were firing randomly and continued doing so when they entered the PERSON village . The guards entered the village and the terrorists fled from the northern part . They were told that CARDINAL villagers had died . At this stage , the security forces caught up with them . It was dark then . TIME , they followed the trail of the terrorists , who had run away towards Altinkum . There had been CARDINAL of them but they were not found . The guards were told to return to their village .", "On DATE , in the afternoon , the witness and others went to cut down poplars in the PERSON area which belonged to ORG . CARDINAL village guards were keeping watch on the hills . They heard gunshots downstream and returned fire . PERSON was injured . They reported to the village . The clash continued for some time . When help arrived , the terrorists , CARDINAL , ran back towards PERSON . PERSON , who came to help from the village , was also injured . They ran after the terrorists who kept turning back to fire . The terrorists who entered the village fired randomly . When the village guards entered the village , they saw that an old woman and a child had died due to the wild firing of the terrorists . The security teams arrived . A search was carried out . The terrorists had run towards ORG and the gendarme commander gave instructions . The area was besieged . However the operation was abandoned due to the nightfall . It continued TIME without result . The guards were asked to return to their village .", "The witness , a village guard , recalled that a call for help came from friends out cutting poplars . They went to the place of the incident and found CARDINAL injured persons . They left men to tend the injured and went after the terrorists , who were randomly firing as they tried to escape . Entering PERSON the terrorists kept firing heavily . As the terrorists ran from PERSON , the guards entered . They heard that CARDINAL villagers had died due to the ORG firing . The operation teams arrived as it was getting dark . The commander waited until TIME to send out a search party . The terrorists who had fled towards Altinkum village could not be found . The village guards were told to return to their village .", "The witness , a village guard , had been providing security to the men cutting poplars at the PERSON stream . Gunshots were heard and CARDINAL of the men were injured . The guards returned fire . When help arrived , the terrorists started fleeing towards PERSON , CARDINAL or CARDINAL of them . The guards went in hot pursuit . The terrorists fired randomly and intensively inside the village . As the guards neared the village , the terrorists left . They lost them in the stream below the village . They learned that CARDINAL villagers had died during the terrorist shooting . The military arrived . Due to darkness , the commander covered the ORG possible escape routes and sent out a search party TIME . On following their trail , it was found that the terrorists had gone to ORG . The guards were sent home .", "The witness had gone to cut poplar trees , while CARDINAL men watched from the hills . Terrorists fired on them and his brother yelled that he was injured . They returned fire . Other village guards came to help after they reported on the radio . The terrorists fled north , TIME . With the help , the guards followed towards PERSON . PERSON , who had come to help , was injured by terrorist fire . The injured were carried back to the village while the others continued after the terrorists , who fired back as they went . The terrorists entered PERSON . The exchange of fire there went on for some time . Military teams arrived . The terrorists used the stream bed and escaped to the north . On entering the village , the village gards learned that CARDINAL villagers had died under indiscriminate terrorist fire . The commander positioned his teams and due to nightfall left the search till TIME . It was found that the terrorists had fled on a tractor to Altinkum . The village guards returned to their homes .", "The report was signed by PERSON , ORG senior sergeant PERSON as well as PERSON , village guard , PERSON , father of a deceased victim , and PERSON , son of the other deceased victim . It stated the following :", "DATE . On DATE , at TIME , the Boyunlu village guards heard a report on the radio that CARDINAL village guards , who had gone to cut poplar trees , had clashed with terrorists . PERSON and PERSON had been injured . A second team of village guards went to the location of the incident . The terrorists broke off contact and ran towards PERSON . Information was received that the village guards had re - established contact with the terrorists . CARDINAL teams from PERSON gendarmes commando division were deployed at Altinkum . CARDINAL village guard team and CARDINAL internal security team from NORP gendarme station deployed in GPE village . During deployment , it was learned that the terrorists had entered into PERSON , and firing between them and the village guards on the hills continued . The terrorists escaped on a tractor towards GPE , still firing . PERSON gendarmes and village guards arrived at the village from GPE . They discovered that a woman , PERSON ( born in DATE ) and PERSON ( born in DATE ) died as a result of indiscriminate fire from the terrorists . The security forces were positioned for TIME . In TIME , a search uncovered CARDINAL rounds of MONEY GCARDINAL bullets , CARDINAL rounds of CARDINAL calibre PERSON rifle bullets and CARDINAL rounds of ORG automatic rifle bullets belonging to ORG terrorists . The injured village guard and citizen were transferred to PERSON and in turn referred to ORG in a helicopter for treatment .", "Upon the instructions of the PERSON public prosecutor , the bodies of the villagers murdered by the terrorists were sent to the district centre for an autopsy . During the incident , the NORP village guards used up CARDINAL projectiles , CARDINAL hand grenades and CARDINAL rounds of CARDINAL PERSON calibre kalashnikov bullets , while the commandos from PERSON used CARDINAL rounds of QUANTITY mortar projectiles and DATE rounds of GCARDINAL infantry rifle bullets . Despite searches , empty cartridges could not be found due to the rocky and tree - covered terrain . Following searches of the village and the location of the clash , it was established that no other life or property was lost .", "This map showed , inter alia , the path taken by the terrorists from the poplar trees to the south of LOC village into the village from where they escaped north towards GPE , the position of the commando teams to the south of the village and the location of the bodies of the CARDINAL villagers .", "This report was signed by the public prosecutor and CARDINAL doctors . It stated that the body identified as PERSON had CARDINAL entry bullet hole on the left back scapula and an exit hole on the level of the front armpit . Death was due to widespread internal thoracic haemorrhage occurring as a result of injury to vital internal organs . On the body of the DATE child , identified as PERSON , there was a bullet entry hole QUANTITY to the left of the xiphoid bone and an exit hole QUANTITY to the left of the CARDINALth vertebra . Death was due to widespread internal haemorrhage and loss of blood . As the cause of death was certain , no classical autopsy was required .", "NORP This report recorded DATE old bruising on the head and large ecchymotic areas on the left side of his back and costar vertebral region . There were signs of suspected broken ribs . The patient was referred to ORG for diagnosis and treatment .", "NORP This report noted one probable bullet entry hole on the foot , one on the right arm and a possible third entry hole ( location illegible ) . There was no danger to life . The patient was referred to ORG Orthopaedics unit .", "A bullet entry hole was noted QUANTITY above the rear left kneecap and an exit hole QUANTITY above the knee cap . There was the possibility of a fracture . There was no danger to life . The patient was referred to ORG Orthopaedics unit .", "The witness , a Boyunlu village guard , was chopping down trees with PERSON and PERSON , with CARDINAL other men guarding them QUANTITY away on high ground ( so that their radio worked ) . He saw CARDINAL men firing at them . He was injured in the arm and leg . He fired back . The terrorists ran away . The guards had called ORG on the radio summoning the other guards . They arrived and pursued the terrorists . He heard gunshots coming from PERSON . He and PERSON were taken to hospital .", "The witness , a village guard , was chopping trees near LOC village at FAC . CARDINAL terrorists opened fire as they arrived . He and PERSON were injured immediately . PERSON fired back and the terrorists ran away . The guards protecting them reported the incident . The area was besieged . He heard gunshots coming from GPE . He was taken to hospital for treatment of his injured leg .", "On DATE , at TIME , the petitioner ’s village PERSON had been raided by ORG guards . He escaped from the house while his wife and daughter - in - law escaped . Village guards PERSON , PERSON , PERSON and PERSON indiscriminately fired at his house , killing his wife . They also set fire to their crops and burned some houses . They had had a land dispute with the above - mentioned individuals , the documents on which for DATE were at the judiciary . He lodged a complaint against the CARDINAL village guards .", "On DATE , gunshots were heard in the village . The witness ’s wife PERSON had told him that village guards had arrived . The witness and his son ran out of the village . He came back at TIME when the gendarmes were there . He found his wife lying dead in their house . His daughter - in - law told him that village guards from GPE ( PERSON , PERSON , PERSON and PERSON ) had entered the house and shot her . The guards fired at and burned houses and also burned the crops . There were no terrorists in the village . The village had had a land dispute in DATE with the ORG guards named above ; he guessed that was the reason for the attack . While the guards were there , a helicopter flew over the village , manoeuvring . He requested that the perpetrators be punished and his crops be reimbursed .", "On DATE , at TIME , a raid was carried out on the village by the Boyunlu village guards . The witness ’s father - in - law GPE ran away with other villagers on hearing the shots . CARDINAL guards ( PERSON , PERSON , PERSON and PERSON ) entered the house and killed her mother - in - law . The guards fired at the houses and burned the crops . She named other witnesses of events .", "The witness , a Boyunlu village guard , was told on the radio that terrorists had opened fire on his brother and others who were chopping wood . They informed the NORP gendarme station immediately . The gendarmes told them to go to the location of the incident where they themselves would arrive shortly . The guards arrived at the place of the clash . The terrorists were running away . The guards followed them . The terrorists entered PERSON village . The guards took position to the south and on the hill . There was an exchange of fire . The terrorists started to run away and got into a tractor shortly before nightfall . A helicopter arrived . The officer brigade commander was in it . The helicopter fired on the terrorists in the tractor . During the clash , a fire broke out in the crops surrounding the village . Darkness fell . First Lieutenant PERSON told the guards to return to ORG . He later heard that there were CARDINAL dead villagers but the guards had not killed anyone . PERSON , who had filed a complaint , had a grandson who was a terrorist and was killed and many of his relatives were terrorists . They were slandering the guards due to pressure from the terrorists .", "The witness , a shepherd from ORG , was grazing his sheep on DATE . He was not a guard . He heard about the clash in the evening . He had not been involved in any way . He named witnesses to support him .", "The witness , the head village guard from ORG , heard over the radio that his brother and others who were chopping wood had been fired at by terrorists . They immediately informed the local gendarme station by radio . The clash was at the LOC stream area . They arrived at the location and participated in the clash . The terrorists started to run away and entered PERSON . The guards positioned themselves to the south . They exchanged fire with the terrorists . The helicopter arrived and opened fire on the terrorists . When the terrorists got into a tractor to escape towards GPE , the helicopter and the guards started to follow them . Some guards passed through the village . During the clash tracer bullets started a fire in the crops and threshing piles . The guards followed the terrorists to Altinkum village outskirts . Due to the darkness and as the terrorists had reached the ORG side , they returned to PERSON where the soldiers had arrived . He learned that a woman and child had been killed . The guards and soldiers stayed in PERSON during the night . Nobody claimed that the guards had killed anyone . PERSON was a close relative of his , like an aunt to him . The complaints had been made against the guards due to pressure from the terrorists . The terrorists wanted to undermine the village guard system .", "The witness , a village guard , recalled that the guards heard on the radio that people cutting poplars were under fire by terrorists in the ORG stream area . After informing the NORP gendarme station , they went to help them and participated in the clash . ORG , the head guard ’s brother , and PERSON were injured . As the clash continued , the terrorists made their way to PERSON , which they entered . The guards could not , taking position on the hill outside . Gendarmes arrived nearby at the ORG . A helicopter flew over , firing on the terrorists in the village . The terrorists started to escape towards GPE . The helicopter went in pursuit . Some guards followed . The witness stayed in the village with some other guards . The terrorists had left at TIME . Before the guards left at TIME , they heard that a woman and child had died . At TIME , the soldiers arrived in the village . At TIME , the PERSON gendarme commander contacted the village guards on the radio and the village guards returned to PERSON and stayed the night . The withness had not killed anyone . The complaints must have been made due to pressure from the terrorists .", "This reported that , following a joint operation CARDINAL by ORG , the PERSON commando unit and the GPE gendarme station , the perpetrators of the murders of PERSON and PERSON , who had injured PERSON , PERSON and PERSON , had not been apprehended nor their identities established .", "At TIME , CARDINAL ORG guards entered PERSON village and started firing at all the houses . Bullets hit his house . There were no terrorists in the village or any clash . He heard that the guards murdered PERSON and PERSON . The guards set fire to the grain piles but not the houses . After TIME , they returned to their village . Before they left , a helicopter flew low over the village , firing at some places . After nightfall , at TIME the soldiers arrived . The witness told PERSON , the ORG commander of the local Bayrambası station , what had happened . They did not open any proceedings though .", "DATE ORG guards came into PERSON village firing their guns . They fired at the houses and entered , using bad language . The witness heard that CARDINAL persons , PERSON and PERSON , were killed . The guards burned the harvest and crops but not the houses . At TIME , the guards left towards their own village . A short time before , a helicopter appeared , firing at various targets . After the guards left , the soldiers entered the village . The villagers told them everything but the soldiers did not believe them and did not apprehend the village guards .", "DATE . At TIME , the witness heard gunshots in the village . Guards from Boyunlu entered firing their guns . There were no terrorists in the village , nor was there any clash . The guards set fire to the crops and threshing piles but not the houses . They came to the witness ’s house , searching for weapons , and tied up his son , claiming that he was a terrorist . They took his son away . His son later managed to run away . While their crops were burning , a helicopter flew over the village at a low height . The head guard PERSON was talking into a radio to the commanding officer , saying : “ They are running away on a tractor towards GPE ” . The helicopter then flew in that direction . At nightfall , most of the guards left , the head guard and a few others staying on . The others went towards PERSON , probably to burn the crops there . The soldiers arrived . Due to fear of the guards , the villagers did not feel able to complain . The soldiers did not do anything to them .", "At TIME , village guards arrived in the village . He and other villagers shut themselves in their houses out of fear . He heard gunshots . Apparently the guards shot at the houses . There were no terrorists in the village , and no clash occurred . Apparently the guards burned the crops and threshing piles . After dark the soldiers arrived . ORG told him that when PERSON came to the door to tell the guards not to enter they killed her . While these incidents were taking place , there was a helicopter flying low over the village .", "Village guards from ORG had come into the village of PERSON firing their weapons . He saw his son LOC shot by the chief village guard as he came to the house . Later the guards burnt the crops . At nightfall , the guards left . There had been no terrorists in the village and there had been no armed clash . Soldiers apparently arrived after the guards had left DATE he did not see them as he stayed inside out of fear .", "On hearing gunshots , the witness had run towards ORG house . Her son PERSON was with her . They entered the house and bolted it . There was gunfire and LOC was shot . Her husband was outside the village grazing livestock . The village guards apparently burned the crops , starting a fire in the threshing area . No terrorists were in the village nor was there any clash with terrorists .", "The witness was out in the fields . At TIME , he heard gunshots . Returning to his house , his father met him QUANTITY from the house and said that he should hide as the Boyunlu village guards were killing the men of the village . He hid near the stream not far from the house . He saw that CARDINAL people from Boyunlu were raiding the village . He named the ones he recognised . He saw PERSON , PERSON and PERSON enter his house and randomly fire with their rifles . They took his father , mother , sister , brother and wife hostage and announced that they would be killed if he did not come out . His mother appealed to him and he came out . PERSON tied him up and demanded to know where the terrorists were . He told PERSON that the terrorists had taken him and his father away DATE before . They were released on payment of FAC . PERSON said that he was lying and that he had made a deal with the terrorists . He was hit with rifle butts . He did not see PERSON or PERSON being killed . The guards threatened to kill him too . They released his hands to allow him to drink and he took advantage of the opportunity to run away .", "NORP The village guards burned the threshing piles . A helicopter flew over the village at a low altitude . PERSON was talking to the helicopter on the radio . It was the provincial gendarme regional commander . PERSON claimed that there were CARDINAL dead and told the helicopter to fire at certain places . He said the terrorists were running away in a tractor . When the helicopter queried whether they were villagers , he said that they were terrorists and to kill them all . The helicopter refused to do so as they were civilians .", "At TIME , when the security forces arrived , the witness told the ORG commander what had happened . The ORG said that they had been told that they had been raided by terrorists . The ORG talked to PERSON , who was there . PERSON laughed , claiming that he could have destroyed the whole village but the first lieutenant had said that it was enough . The guards stayed in the village for DATE . The witness filed a complaint against them .", "NORP This report listed the cartridges recovered from the incident on DATE . It established that they had been fired from CARDINAL different weapons . They were currently under examination to see if they had been fired in other incidents . A further report would issue if that was the case .", "DATE . This decision listed the deceased victims , PERSON and PERSON , and the injured persons , PERSON , PERSON and PERSON , and identified the suspects as ORG terrorists . It was understood that an armed assault was carried out on village guards by terrorists in LOC . The terrorists withdrew , entering PERSON village and firing indiscriminately . CARDINAL villagers died . The security forces arrived and the terrorists escaped . As the offences were within the jurisdiction of ORG , the PERSON prosecutor referred the file to ORG chief public prosecutor .", "This decision listed PERSON , PERSON , PERSON and PERSON as suspected perpetrators of the murder of PERSON and PERSON . It was understood that the suspected village guards had raided PERSON village and murdered the above persons by indiscriminate firing on duty . The case was referred to the PERSON public prosecutor for the institution of proceedings .", "The incident was described as an armed clash with members of the ORG , which took place on DATE . It was stated that CARDINAL ORG guards set out for PERSON hill where they came across a group of CARDINAL to CARDINAL terrorists . A clash occurred during which PERSON and an unidentified NORP terrorist were killed . As soon as contact was made , CARDINAL teams of village guards from ORG , a team of village guards from Onbaşılar , a ORG unit and CARDINAL gendarme commando units set out in pursuit . Though bloodstains were found and it was thought that CARDINAL terrorists were wounded , no further terrorists were discovered .", "This protocol stated that an investigation had been carried out into the complaints of the applicant and PERSON that their houses and gardens had been burned in PERSON . No complaint had been made to the local gendarme station about this . PERSON had however been killed during a skirmish with the security forces on DATE near GPE in which he had taken part as a terrorist . The applicant had houses in PERSON and in GPE . He came to PERSON village during the harvest season . His house , garden and fields in PERSON had not been burned down by village guards .", "The applicant stated that he lived in GPE . PERSON was killed in armed clashes with the security forces on DATE . He did not know whether he was a terrorist or not . His own house , garden and fields in PERSON were not burned as was alleged . He had not applied to any authority about the matter .", "It had been reported that the applicant and ORG had applied to ORG , alleging that their houses , garden and fields had been burned down by village guards on DATE .", "According to their investigations , it appeared that no complaint had been made to the gendarmerie about this matter . PERSON had been killed on DATE fighting as a terrorist against the security forces at FAC , GPE . The applicant had houses in PERSON and PERSON , and his house , garden and fields had not been burned down by village guards . The allegations were false .", "Although it had been alleged that the applicant and ORG houses , gardens and fields had been burned by village guards and that they had been forced to leave their village , it appeared from the applicant ’s statement , the letter from the PERSON district gendarmerie , the autopsy report and all other documents that the investigation failed to produce any evidence that the allegations were true and that the offences charged had been committed . It followed that no public prosecution should be opened .", "This judgment acquitted PERSON , PERSON , PERSON and PERSON of the murder of PERSON and PERSON .", "The court found that on DATE a clash took place between the ORG and the defendant village guards . The terrorists escaped towards PERSON , where the victims lived . The village guard defendants went into the village in pursuit . The ORG summarised the evidence as follows .", "PERSON claimed that he was not at the incident but was grazing his sheep . His defence was confirmed by the testimony of PERSON , GPE , PERSON and PERSON ( name illegible ) . PERSON , PERSON and PERSON stated that they were in the incident and that when they entered the village , a CARDINAL - way conflict took place . The victims might have died in the conflict but the village guards did not kill them .", "PERSON , the husband of PERSON , had run away and did not witness what happened to his wife . PERSON stated that CARDINAL men had fired . PERSON , mother of LOC , had stated that they had shut themselves in their house . There had been firing outside and a bullet had hit and killed her son . She had opened the door and seen the CARDINAL defendants ORG , PERSON and Gurkan . PERSON stated that he did not see the incident himself . PERSON said that he did not know who killed the victims and did not see the incident with his own eyes . PERSON stated that he did not see the perpetrators of the murder incident with his own eyes .", "Empty cartridges or other material evidence at the location proving the defendant ’s participation in the murder were absent .", "Statements had been taken from Captain PERSON and First Lieutenant PERSON , commanding officers during the incident . They stated that there had been a conflict between the ORG and the village guards and that the victims died as a result of firing by the terrorists . They had seen the terrorists running from the village through their binoculars . They had carried out an investigation and concluded that the victims were killed by terrorists . However , some witnesses indicated that as a result of pressure from the terrorists , some villagers held the defendants responsible . Consequently , on the basis of the evidence gathered , no convincing evidence had been obtained to prove that the defendants killed the victims . The fact that the victims were killed by the terrorists or the defendants could not be established with certainty .", "The claims made by the complainants were not based on eye witness accounts . The statements made during the investigation contradicted those given in court and could not be taken into account . The ORG statements and the content of the file did not furnish sufficient , definitive and convincing evidence of the offence . Therefore the defendants had to be acquitted .", "The applicant stated that he had already made a statement to the PERSON public prosecutor . At his request , that statement of DATE was read out to him . He stated that he maintained it . He was under no pressure and denied the allegations that had been made to that effect . His house and property had not been burned . In DATE , there were clashes between PERSON and GPE , after which the terrorists fled . After the incident , the village was searched by village guards . In the course of the incident , CARDINAL people were killed . His house was not burned at that time . He had not applied to any authority .", "The witness was not in the village at the time of the incident but was told that clashes broke out between people not from the village , presumably terrorists , and village guards from ORG and PERSON . Those people fled through the village . CARDINAL people were killed during the clashes . He had not heard or seen that the applicant ’s house or garden were burned . He had known PERSON , who had been killed in an armed clash with the security forces in DATE . There were CARDINAL households in the village , and the applicant was still living there working in his orchard and garden .", "The witness lived in GPE , located in an area subject to frequent terrorist incidents . Many villagers abandoned their homes because of the harassment from the terrorists , and moved to safer areas protected by village guards and the security forces . About that time , the applicant moved to PERSON , taking out the windows and doors of his house in the GPE district to sell . As the house was abandoned , it fell into ruin , though the concrete parts were still sound . His house was not burned down or destroyed by village protectors . He guessed that the applicant was influenced by his son who lived in GPE and was a member of the ORG .", "The witness lived in GPE , as he had been forced to leave his former house and gardens in the LOC due to intensive terrorist activity . Many others , including the applicant , who was a relative of his , did the same . The applicant ’s house in the GPE district was also harassed by terrorists . On CARDINAL occasion there was a ORG raid on the valley , during which ORG and PERSON were injured and terrorists escaping from the battle entered the applicant ’s house . The applicant abandoned his house there and came to live in PERSON . He returned to remove the wooden parts . The concrete parts of the house still stood though some stone had collapsed as he had removed beams . There was no question of village guards tearing down his house . All the villagers knew that the applicant ’s sons lived in GPE and supported the ORG .", "On DATE , the Government provided CARDINAL photographs , accompanied by a procès - verbal dated DATE .", "The CARDINAL photographs showed a man , purported to be the applicant , standing outside his house at GPE . The QUANTITY house was roofed and intact .", "On DATE , the applicant ’s lawyer submitted CARDINAL colour photographs of the applicant standing outside his house . They showed a derelict building , without roof , with bricks and stones remaining up to the height of the applicant .", "The ORG refers to the overview of domestic law derived from previous submissions in other cases , in particular the ORG and Others v. GPE judgment of DATE , Reports of Judgments and Decisions CARDINAL , § § DATE , the Menteş and Others v. GPE judgment of DATE , Reports CARDINAL , § § CARDINAL ; the PERSON and PERSON v. GPE judgment of DATE , Reports CARDINAL-II , § § DATE ; the GPE v. GPE judgment of CARDINAL DATE , Reports CARDINAL , § § DATE ; and no . CARDINAL/CARDINAL , ORG v. GPE ( Sect . CARDINAL ) , judgment of DATE .", "Since DATE , serious confrontations have occurred in the south - east of GPE between the security forces and the members of the ORG ( Workers’ ORG ) . This confrontation has claimed the lives of CARDINAL of civilians and members of the security forces .", "CARDINAL principal decrees relating to the south - eastern region have been made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - eastern GPE . Under LAW b ) and ( d ) of the decree , all private and public security forces and ORG are at the disposal of the regional governor .", "The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of the regional governor , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW", "“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”", "Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides as follows :", "“ All acts or decisions of the authorities are subject to judicial review ...", "The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”", "This provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose liability is of an absolute , objective nature , based on the theory of “ social risk ” . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .", "Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .", "The Criminal Code makes it a criminal offence :", "– to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ;", "– to issue threats ( LAW ) ;", "– to make an unlawful search of an individual ’s home ( Articles CARDINAL and CARDINAL )", "– to subject an individual to torture or ill - treatment ( Articles CARDINAL in respect of torture , and Article CARDINAL in respect of ill - treatment , inflicted by civil servants ) ; and", "– 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 . A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution ( LAW . Complaints may be made in writing or orally . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .", "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 . In these circumstances proceedings may be initiated by the ( non - military ) persons concerned before the competent authority under LAW , or before the suspected ORG hierarchical superior ( Articles CARDINAL and CARDINAL of Law CARDINAL on the LAW and the Procedure of Military Courts ) .", "NORP If , at the relevant time , the alleged author of a crime is a ORG official or civil servant , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .", "ORG . Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated by the civil courts pursuant to LAW and non - pecuniary or moral damages awarded under LAW . Damage caused by terrorist violence may be compensated out of ORG .", "In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of State security prosecutors and courts established throughout GPE .", "NORP The public prosecutor is also deprived of jurisdiction with regard to offences allegedly committed by members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of the regional governor ( see paragraph CARDINAL above ) shall be subject , in respect of acts performed in the course of their duties , to the Law of DATE on the prosecution of civil servants . The Law of DATE has been replaced by another law in the meantime . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision declining jurisdiction and transfer the file to ORG . These councils are made up of civil servants , chaired by the governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case ." ]

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[ "13", "14", "3", "6", "8" ]

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[ "The applicant was born in DATE and lives in the town of GPE .", "In DATE he took part in a rescue operation on the site of the GPE nuclear disaster . As of an unspecified date the applicant has been in receipt of social benefits in this connection .", "On an unspecified date the applicant sued ORG ( Управление социальной защиты населения мэрии города ORG , “ the authority ” ) seeking to recover the amount of allegedly unpaid social benefits .", "By judgment of DATE ORG ( “ the ORG ” ) examined and granted the applicant ’s action and ordered the authority to pay him the arrears of ORG .", "The judgment was upheld on appeal by ORG ( “ the Regional Court ” ) on DATE . It came into force on DATE . Immediately thereafter the applicant obtained an execution writ and instituted enforcement proceedings .", "The amount due to the applicant pursuant to the judgment of DATE and decision of CARDINAL DATE was paid to him by CARDINAL money transfers dated DATE ( CARDINAL RUR ) and DATE ( CARDINAL RUR ) respectively .", "On DATE ORG examined and granted the applicant ’s claim for penalty in connection with alleged non - enforcement of the judgment of DATE . The court ordered the authority to pay the applicant RUR CARDINAL,CARDINAL.CARDINAL .", "The judgment of CARDINAL DATE was not appealed against by the parties and came into force on DATE .", "NORP Immediately thereafter the applicant obtained an execution writ and instituted enforcement proceedings .", "NORP By letter of CARDINAL DATE the bailiffs returned the writ and supporting documents to the applicant and invited him to apply to a local branch of ORG .", "It appears that the applicant followed these instructions and submitted the writ and supporting documents to ORG . On DATE the ORG refused to pay the money due by reference to the fact that the respondent authority had not been registered .", "On an unspecified date the respondent authority brought an application seeking supervisory review of the judgment of CARDINAL DATE . A judge of ORG on DATE examined the application and decided to forward it for examination on the merits to the ORG of ORG .", "It appears that by letter of CARDINAL DATE ORG notified the applicant and other parties in the case of the supervisory review hearing of DATE .", "On DATE ORG quashed the judgment of CARDINAL DATE by way of supervisory review and remitted the case for a fresh examination at the first instance . It appears that the applicant was absent from the hearing .", "According to the Government , on DATE the first instance court discontinued the proceedings in the case for the applicant ’s failure to appear .", "It appears that on DATE and DATE ORG examined and fully granted the applicant ’s CARDINAL fresh claims for unpaid social benefits . It ordered the authority to pay RUR CARDINAL,CARDINAL.CARDINAL and RUR CARDINAL,CARDINAL.CARDINAL respectively . Both decisions were enforced with DATE delay , in DATE and DATE respectively .", "A special law adopted in DATE entitles the participants of the liquidation of the consequences of the GPE nuclear accident to additional social benefits , including DATE payments .", "Section CARDINAL of LAW of CARDINAL DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that a coercive action will follow , should the defendant fail to comply with the time - limit .", "Under LAW of the LAW , the enforcement proceedings should be completed within DATE upon receipt of the writ of enforcement by the bailiff .", "Under special rules governing enforcement of execution writs against the recipients of allocations from the federal budget , adopted by ORG on DATE ( Decree No . CARDINAL , as in force at the relevant time ) , a creditor is to apply to a relevant branch of ORG holding debtor ’s accounts ( Sections CARDINAL to CARDINAL ) .", "Within DATE the branch examines the application and notifies the debtor of the writ , compelling the latter to abide by the respective court decisions ( Sections CARDINAL ) . In case of the debtor ’s failure to comply within DATE , the branch may temporarily freeze the debtor ’s accounts ( see LAW ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE ( PERSON ) . The respondent Government were represented by their Agent , PERSON , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant , a civil servant with a DATE salary of MONEY ( ORG ) at the time in question , made a request for aid ( Beihilfe ) to ORG , his employer . He asked to be reimbursed part of the cost , namely CARDINAL ORG , he had paid for magnesium tablets prescribed by his physician .", "On DATE the Land refused this request .", "On DATE the applicant instituted preliminary administrative proceedings ( PERSON ) by lodging an objection to the decision of DATE .", "On DATE the Land dismissed the applicant ’s objection .", "On DATE the applicant brought an action against ORG with the GPE ( ORG Administrative Court claiming that the magnesium tablets in question were eligible for aid , and requested a renewed decision by the Land .", "By letter dated DATE ORG informed the applicant at his request that all cases were dealt with in chronological order , that there was a backlog of cases and that for the time being he could not expect a date for an oral hearing to be set .", "On DATE ORG replied to another information request by the applicant that a decision was expected to be reached DATE .", "On DATE the applicant lodged an extraordinary complaint , that the GPE ( ORG Administrative Court was taking no action , with ORG . By a letter dated DATE ORG informed the applicant that his extraordinary complaint was not admissible since LAW did not provide for such a remedy and , furthermore , he was not , as prescribed by the relevant law , represented by counsel . On DATE the applicant withdrew the complaint of inactivity he had lodged with ORG . With decision dated DATE ORG discontinued the complaint proceedings .", "On DATE the applicant lodged a constitutional complaint with ORG that ORG was taking no action . On DATE ORG refused to admit the applicant ’s constitutional complaint for examination ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .", "On DATE the GPE ( ORG Administrative Court referred the case to a single judge for a decision . By a judgment of DATE the GPE ( ORG Administrative Court dismissed the applicant ’s action .", "The judgment was served on the applicant on DATE and has since become final ." ]

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[ "The applicant was born in DATE and lives in GPE .", "Since DATE the applicant has been involved in an administrative dispute with the GPE relating to the planned construction of a public road .", "The applicant submits that on many occasions he was denied the right to see the relevant planning and building permissions and that the municipality clerks prevented him from accessing the files .", "On DATE and DATE the applicant was charged with several offences , in particular insulting ORG and uttering threats . ORG subsequently ordered the applicant to undergo a psychiatric examination in order to determine whether he could be held criminally responsible in respect of the above - mentioned offences .", "On DATE the applicant was arrested and placed in a psychiatric hospital in order to undergo an observation .", "On DATE the applicant attacked a judge who was visiting another patient in the hospital . He was immobilised and given sedative medication . On DATE the hospital asked the court for a post factum permission to treat the applicant without his consent .", "On DATE the applicant underwent a psychiatric examination .", "On DATE the NORP ORG gave a decision and declared the extension of the applicant ’s detention in the hospital to be lawful . The applicant was released from the hospital on DATE .", "On CARDINAL DATE ORG gave a decision and discontinued the criminal proceedings against the applicant . The court found it established that the applicant had committed the offences in question . However , he should not have been held criminally responsible as he was suffering from paranoia with elements of psychosis . It further referred to an expert ’s opinion and ordered that the applicant be placed in a psychiatric hospital in Choroszcza .", "On DATE ORG dismissed an appeal by the applicant .", "Subsequently , the applicant asked the court to discontinue the enforcement proceedings relating to his placement in a psychiatric hospital . He claimed that his state of health had significantly improved . On DATE ORG dismissed his request . On DATE ORG dismissed the applicant ’s appeal .", "Meanwhile , the applicant was charged with assaulting a NORP municipality employee . On DATE expert psychiatrists considered that the applicant suffered from paranoia with elements of psychosis . On DATE the ORG discontinued the criminal proceedings against the applicant and ordered his placement in a psychiatric hospital .", "On DATE the applicant was arrested by the police on the basis of the decision of CARDINAL DATE . He was then transferred to ORG . He was seen by a doctor upon his arrival . However he refused to answer any questions .", "On DATE the applicant lodged an interlocutory appeal against the decision to place him in a psychiatric hospital . He stressed that his condition had meanwhile improved and that he had not been summoned to go to the hospital voluntarily . He also complained that he could not prepare himself for the confinement . On DATE ORG dismissed the applicant ’s interlocutory appeal .", "On DATE ORG ordered the applicant ’s internment in the same institution ( ORG ) on the basis of its final decision of DATE .", "The applicant subsequently lodged several motions , in particular another application for release on DATE which was dismissed on DATE .", "On DATE an expert psychologist submitted her opinion to the court . She observed an improvement in the applicant ’s emotional behaviour . On DATE CARDINAL expert psychiatrists submitted their joint opinion to the court . They concluded that the applicant ’s condition had significantly improved . However , he should continue treatment in a hospital .", "On DATE ORG ordered the applicant ’s release . The court referred to an opinion prepared by CARDINAL psychiatrists and a psychologist . They concluded that the applicant ’s condition had significantly improved and that he could be treated outside the hospital .", "The applicant escaped from the hospital on DATE .", "On DATE the hospital informed ORG about the applicant ’s escape . The hospital stressed that it refused to release the applicant because confinement in respect of another set of criminal proceedings against him had been ordered . The hospital referred to the decision of DATE given by ORG .", "Subsequently , the applicant sued ORG for compensation . He complained about the treatment he received and in particular about the fact that his head had been shaved without his consent and also that he had been placed in a closed ward of the hospital . On DATE ORG granted the applicant MONEY in compensation . On DATE the ORG court gave judgment and increased the amount of compensation to FAC CARDINAL,CARDINAL .", "The applicant ’s subsequent confinement was examined by the ORG in application no . CARDINAL .", "Conditions for the detention of persons of unsound mind who are not criminally responsible on medical grounds are laid down in LAW of DATE :", "Article CARDINAL", "“ The court may impose a preventive measure provided for in this LAW which involves confinement in a closed medical institution only if necessary to prevent the repeated commission of a prohibited act by a perpetrator suffering from mental illness , mental impairment or addiction to alcohol or other narcotic drugs . Before imposing such a measure the court shall hear evidence from psychiatrists and a psychologist . ”", "Article CARDINAL", "“ § CARDINAL . If the perpetrator has committed a prohibited act of significant harm to the community in a condition excluding his criminal responsibility as specified in LAW and there is a high probability that he will commit such an act again , a court shall commit him to a suitable psychiatric institution .", "§ CARDINAL . NORP The duration of the stay in the institution shall not be fixed in advance ; the court shall order the perpetrator ’s release from the institution if his or her stay is no longer deemed necessary .", "§ CARDINAL . NORP The court may order the reconfinement of a perpetrator specified in LAW in a suitable psychiatric institution if this is advisable in the light of the circumstances specified in LAW in LAW ; the order may not be issued DATE after the date of release from the institution . “" ]

[ "5" ]

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

[ "5-1-e" ]

[ "5" ]

[ "5-1" ]

[ "5-1-e" ]

[ "The applicants are CARDINAL NORP nationals , born respectively in DATE , DATE and DATE . They all reside in LOC . In DATE and DATE , the first applicant was the mayor of Chianche ; the other applicants were members of ORG ( “ PERSON edilizia municipale ” ) , a body responsible for expressing opinions on the granting of building permits . Before the ORG , they are represented by Mr PERSON , a lawyer practising in LOC .", "On an unspecified date , ORG commenced criminal proceedings against the applicants on charges of abuse of public authority ( “ interesse privato in atti d’ufficio ” ) in the course of their duties as mayor and members of ORG . On DATE ORG requested that the applicants and CARDINAL other persons be committed for trial .", "In an order of DATE , the ORG investigating judge scheduled the date of the preliminary hearing for DATE . This order was subsequently served on the applicants , who were thus given official notification of the charges brought against them .", "In an order of DATE , the investigating judge committed the applicants and their CARDINAL co - accused for trial , commencing on DATE before ORG .", "On DATE Mr D. , CARDINAL of the judges composing the bench of the court , withdrew from the case . On DATE the proceedings were adjourned by reason that the order fixing the date of the hearing had not been served on CARDINAL of the accused . On DATE Mr NORP observed that notwithstanding his withdrawal , the case was still pending before the section in which he was sitting ; the case - file was therefore forwarded to the President of ORG .", "A hearing scheduled for DATE was adjourned by ORG of its own motion . On DATE CARDINAL witnesses were examined and the parties presented their final pleadings . The applicants requested to be acquitted or , in the alternative , that the charges against them be declared time - barred .", "In a judgment of DATE , filed with the registry on CARDINAL DATE , ORG declared that the charges brought against the applicants and their co - accused had become time - barred at the latest on DATE . This decision became final on DATE .", "" ]

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[ "The applicant was born in DATE and lives in GPE .", "According to the applicant , at TIME on DATE , police officers belonging to the special intervention forces of ORG took the applicant into custody in order to transport him from his home in GPE to GPE , QUANTITY away . They had not presented any warrant or other legal document justifying his arrest , nor informed him of the reason for his arrest or where they intended to transport him .", "The applicant contended that while in custody he had been beaten by police officers so severely that he had lost consciousness . As a result , he needed urgent medical assistance and was admitted to the emergency ward of ORG . While he was on a drip at the hospital , he was hit again and handcuffed by police officers . This occurred in the presence of his lawyer .", "The Cluj Police immediately transferred him from ORG to the emergency ward of ORG , where he remained for TIME from TIME until TIME .", "At TIME , although unable to speak because he had been given sedatives in hospital , he was transported from the hospital directly to ORG in order to be interviewed . There , he was informed for the first time of the reason for his arrest , namely that he was suspected of making repeated phone calls threatening to kill someone . He was interviewed until CARDINAL a.m.", "A preliminary criminal investigation was initiated in connection with allegations that the applicant had made threatening telephone calls against a resident of ORG . On DATE , the prosecutor attached to ORG therefore issued an order for the applicant to be brought before him for questioning .", "At TIME on DATE , having been informed by police officers about the order , the applicant agreed to accompany the police officers to ORG in GPE . On their way to GPE , near PERSON , the applicant informed them that he was feeling sick and became physically agitated , presenting the symptoms of an epileptic seizure .", "The police officers took the applicant to the nearest hospital in DATE , where he was examined and received immediate medical treatment . While in the consulting room , the applicant had a panic attack and started hitting his legs and hands against the bed . CARDINAL police officers had to intervene and immobilise the applicant ’s hands so that he could be disconnected from the medical devices .", "The applicant was transported in an ambulance from ORG to the emergency ward of ORG for further medical examinations , which took place from TIME . The diagnosis was abdominal trauma and abrasions .", "As no traumatic injuries or clinical indications requiring an immediate operation were diagnosed , the applicant was discharged from the hospital and presented himself at the police station for questioning .", "After questioning , the applicant gave a written statement , which according to the prosecutor was barely legible . He was assisted by his lawyer during the questioning .", "On DATE ORG examined the applicant and issued a report that stated that his injuries could have been caused DATE by being hit with a hard object . It noted the existence of bruising and abrasions on the upper abdomen and on both hips , and estimated that the applicant would need DATE to recover .", "A medical certificate issued by ORG on DATE showed that the applicant had been hospitalised on DATE for TIME . The certificate stated that the applicant had been diagnosed with a minor cranial trauma , abdominal trauma and abrasions , and concluded with the expression “ Affirmative assault ” ( “ PERSON agresiune ” ) .", "The applicant contended that although on DATE he had submitted a request with ORG to be provided with a copy of the order to which the police officers had referred in order to justify the deprivation of his liberty , he had not received a copy .", "On DATE the ORG attached to ORG decided to discontinue the criminal proceedings against the applicant for making threatening phone calls on the grounds that his guilt could not be proved .", "On DATE the applicant lodged a criminal complaint against QUANTITY police officers alleging unlawful arrest , abuse of authority , abuse of the ORG powers of investigation and deprivation of liberty .", "On DATE the applicant ’s lawyer , ORG , made a written statement concerning the events that had occurred on DATE . She submitted that the manager of the applicant ’s company had called her at QUANTITY informing her that CARDINAL police patrols had taken the applicant into custody . She had called the applicant , who had confirmed that he was in police custody . She also submitted that she could hear police officers insulting and hitting the applicant . As she had understood from their phone conversation that the applicant did not feel well , she had decided to accompany him . She had called the ambulance service and discovered that the applicant had been taken to the ORG emergency ward . When she found him there , he had been connected to medical devices but supervised by CARDINAL police officers from ORG . She alleged that she had seen the police officers punch the applicant because he refused to remain in bed . She had accompanied the applicant to ORG and then to the police headquarters , assisting him during questioning .", "On DATE the applicant ’s criminal complaint was registered with ORG attached to ORG .", "On DATE of the police officers against whom the applicant had lodged a criminal complaint were heard by the prosecutor . Their written statements were all identical .", "On DATE ORG attached to ORG of Appeal decided not to prosecute on the grounds of lack of evidence that the offences in question had been committed . The decision stated that criminal proceedings had been initiated against the applicant on DATE . His deprivation of liberty had been justified by the necessity to interview him immediately , even before summoning him on the basis of an order to appear before the investigating body ( mandat de aducere ) issued by a prosecutor . The decision further stated that the applicant had agreed to accompany the police officers and that , in any event , the applicant ’s allegation that he had not been given a copy of the warrant could not lead to the conclusion that the police officers had abused their position , as his legal interests had not been infringed . In addition , the prosecutor held that the applicant had been provided with the order on the way from ORG to ORG . In respect of the applicant ’s allegation that he was subjected to physical violence by the police officers , he concluded that the injuries noted by the forensic doctor had been self - inflicted . The police officers had accompanied him to ORG because he had mentioned that he did not feel well . While he was being examined by a doctor , he had had a panic attack and had started to hit the hospital ’s bed with his body , hands and feet . The police ORG intervention had therefore been necessary ; they had immobilised him in order to disconnect him from the various medical devices .", "On DATE the head of ORG dismissed the applicant ’s appeal against the aforesaid decision on the grounds that it had been lodged outside the time - limit set by the law . He stated , inter alia , that the order to appear before the investigating body had been issued because the applicant , although legally summoned , had refused to go to the police station to be interviewed . He added that the decision of CARDINAL DATE had been communicated to the applicant on DATE by registered letter and kept at the local post office until DATE . As the applicant had not collected the letter , it had been returned to the sender .", "On DATE the applicant appealed to ORG of Appeal against the prosecutor ’s decisions .", "On DATE ORG dismissed the appeal on the grounds that it had been lodged outside the time - limit . It stated that the decision of DATE had been communicated to the applicant by registered letter on CARDINAL DATE , but had not been collected by him from the post office . It concluded that the legal term of DATE for lodging an appeal against the prosecutor ’s decision had begun on DATE and not on DATE , the date on which the applicant had allegedly found out about the decision .", "The applicant appealed again , claiming that the decision of CARDINAL DATE had never been communicated to him and , therefore , that the term for submitting his complaint against it had not started to run .", "On DATE the High Court of Cassation and ORG allowed the appeal on points of law lodged by the applicant on the grounds that the appeal had been lodged within the time - limit set by law , quashed the judgment of DATE and referred the file back to ORG of Appeal .", "The applicant lodged an application with the High Court of Cassation and Justice for the removal of the file to another court on the grounds that ORG was not impartial . His application was granted on DATE and the file was transferred to ORG of Appeal .", "On DATE , ORG allowed the applicant ’s appeal against the ORG decision not to prosecute . It sent the file back to ORG attached to ORG for further investigation on the grounds that the investigation proceedings had not been properly conducted . It noted , inter alia , that the investigation of the allegations against the police officers had not been thoroughly investigated on the basis of the evidence against each of them . It added that despite the fact that the file contained CARDINAL pages , the procedural acts carried out by the criminal investigation body were mentioned only at pages DATE and consisted of CARDINAL identical statements made by CARDINAL of the police officers involved in the incident , and the statements of the applicant ( pages CARDINAL ) and the applicant ’s lawyer ( pages CARDINAL - CARDINAL ) . The rest of the file contained copies of documents submitted by the applicant and copies of documents not related to the case . It also noted that the prosecutor , in deciding not to prosecute , had provided no explanation as to why CARDINAL police officers out of CARDINAL had been interviewed , why their statements were identical and why he had not taken into account the documents submitted by the applicant attesting that the applicant had suffered injuries . It made particular reference to the medical certificate issued by ORG on DATE , as well as the medical certificate issued by ORG on DATE . It concluded that in the light of such medical certificates , a competent court could not decide that there was a lack of evidence that the offences in question had been committed .", "On DATE ORG and ORG dismissed an appeal on points of law lodged by ORG attached to ORG . Consequently , the decision to continue the investigation was upheld .", "On DATE the prosecutor questioned for the first time the CARDINAL other police officers involved in the events of DATE .", "On DATE the applicant ’s lawyer made a written statement that she had not only heard during her phone conversation with the applicant but had also seen how the latter had been subjected to ill - treatment by the police officers on DATE . She added that despite the fact that she had repeatedly asked to see the order to appear before the investigating authority on DATE of the events , she had only seen it DATE in the case file .", "On CARDINAL DATE the prosecutor heard CARDINAL of the police officers who had already made statements on DATE .", "On DATE the ORG attached to ORG again decided not to prosecute the police officers . It found that the applicant had not been subjected to ill - treatment by the police officers and had been deprived of his liberty pursuant to a warrant that had been issued in compliance with the law .", "The applicant lodged an appeal against this decision with the chief prosecutor , claiming that the prosecutor in charge had not observed the instructions of ORG and Justice in respect of the evidence to be re - administered . He also claimed that despite the fact that he had been summoned to appear before the prosecutor on DATE , he had not been heard because the prosecutor had been absent from his office for DATE . The applicant also submitted that not all of the police officers against whom he had lodged the criminal complaint had been heard by the prosecutor ; he made the same claim with respect to other individuals who had witnessed the events of DATE but had never been heard by the investigating body .", "On DATE the chief prosecutor dismissed the applicant ’s appeal on the grounds that the injuries mentioned in the forensic certificate had been self - inflicted while he was simulating an epileptic seizure . He held inter alia that the order to appear before the investigating body had been issued because the applicant had failed to appear before the prosecutor , despite the fact that he had been summoned .", "By a decision of CARDINAL DATE , ORG allowed the applicant ’s appeal . It held that the prosecutor had not complied with its decision of DATE and again remitted the case to ORG , ordering it to commence criminal proceedings against the QUANTITY police officers mentioned in the initial criminal complaint .", "The criminal proceedings are still pending and no judgment on the merits has been rendered .", "Excerpts from the relevant provisions of LAW with regard to ill - treatment can be found in GPE v. GPE ( no . MONEY , § MONEY , DATE ) .", "Article CARDINAL of the NORP LAW deals with bodily harm and provides , inter alia , that the harm caused to the physical integrity or health of a person requiring DATE of medical care is punishable by CARDINAL to CARDINAL months’ imprisonment or a fine .", "Article CARDINAL deals with abusive behaviour and provides that a public servant on duty who uses insulting language while physically harming someone shall be punished by DATE to CARDINAL years’ imprisonment .", "The order to appear before the courts ( mandatul de aducere ) was , at the material time , provided for by ORG CARDINAL - CARDINAL of the Code of Criminal Procedure , which read as follows :", "“ ( CARDINAL ) A person may be brought before [ a ] criminal - investigation body or [ a ] court on the basis of an order to appear , drawn up in accordance with the provisions of LAW , if , having been previously summoned , he or she has not appeared , and his or her hearing or presence is necessary .", "( CARDINAL ) An offender or a defendant may be brought [ before the authorities ] on the basis of an order to appear even before being summoned , if the criminal - investigation body or the court considers that , and provides reasons why , this measure is necessary for the determination of the case . ”", "“ ( CARDINAL ) [ An ] order to appear is enforced by the police .", "( CARDINAL ) If the person specified in the order can not be brought [ before the authorities ] because of an illness or for any other reason , the police officer appointed to enforce the order shall mention this situation in an official report , which shall immediately be handed to the criminal - investigation body or the court .", "( CARDINAL ) If the police officer appointed to enforce the order to appear does not find the person specified in the order at the specified address , he shall investigate and , if unsuccessful [ in locating the individual ] , shall draw up an official report including mention of the investigative activities undertaken .", "( CARDINAL ) If the offender or the defendant refuses to accompany a police officer or tries to escape , he or she may be forced to obey the order . ”" ]

[ "3", "5" ]

[ "5-1" ]

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[ "5" ]

[ "5-2" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE . He is represented before the ORG by PERSON , a lawyer practicing in GPE . The respondent Government are represented by their Agent , Mr PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant has a son , PERSON , born in DATE out of wedlock . The applicant stopped cohabiting with PERSON ’s mother , PERSON , shortly after PERSON ’s birth . A. was granted sole custody of PERSON and no access arrangements were made for the applicant . It appears that the applicant had barely any contact with his son in his early childhood .", "Due to A. ’s unstable life , child welfare officials intervened to give her support in caring for PERSON from DATE . In DATE , PERSON , then aged DATE , was taken into public care for DATE and placed with a substitute family ( S .- V. ) , who lived QUANTITY away from the applicant ’s home . Since then , this family has provided PERSON with support and respite and holiday care . In DATE started psychological therapy .", "On DATE , A. was hospitalised and PERSON moved to live with the S .- V. family . DATE died . PERSON continued to live with PERSON Around that time the applicant began to visit PERSON regularly , and it appears that PERSON began to stay with him every other DATE .", "On DATE , the local ORG ( sosiaalilautakunta , socialnämnden ) decided to take LOC into public care pursuant to LAW ( lastensuojelulaki , barnskyddslagen ) and ordered that he be placed with the S .- V. family . It appears that the applicant consented to the care order , and did not appeal against it .", "Meanwhile , ORG instituted proceedings before ORG ( käräjäoikeus , tingsrätten ) , requesting that custody of PERSON be granted to his foster parents . During the proceedings , the applicant applied for custody . On DATE , ORG decided that custody of PERSON should be granted to the applicant as he , as a biological parent , was willing to assume custody . In addition , the visits between the applicant and PERSON had taken place without difficulty .", "In DATE the applicant requested ORG to remove his son from public care . ORG asked for a report on the applicant ’s circumstances from ORG of the applicant ’s home municipality . According to the report , the applicant had been unwilling , or unable , to cooperate . The social welfare officials considered that were PERSON to live with his father , his care , upbringing , supervision and other needs might not be guaranteed . They were not convinced that PERSON would be better off with his father . PERSON ’s psychiatrist , Dr. PERSON , filed an opinion with ORG , in which she reported that PERSON did not want to decide where he should live , but had said that he did not want further changes in his life and wished to continue going to the same school with his friends .", "It appears that the applicant was invited to participate in CARDINAL preparatory meetings held by ORG on DATE and DATE . The applicant did not attend .", "On DATE , ORG decided to refuse the request . It considered that the circumstances justifying PERSON ’s continued public care still existed .", "The applicant continued to meet PERSON regularly . It appears that although he was granted a right to have PERSON live with him for CARDINAL extended periods in DATE and DATE , for reasons attributable to the applicant the visits did not in fact take place .", "The applicant challenged the care decision before ORG ( hallinto - oikeus , förvaltningsdomstolen ) . He claimed that public care was contrary to PERSON ’s interests . Further , the fact that he was PERSON ’s biological father had been neglected in the decision - making . He maintained that if the decision had been based on the fact that he had never lived with PERSON , it was deficient since he had never been given that possibility .", "ORG submitted a statement to the court to which the applicant filed a response . Upon the request of the applicant , ORG held an oral hearing on DATE . In the hearing the applicant maintained that PERSON should live with him . He claimed that cooperation between the social welfare officials and the substitute family had been difficult . The court took evidence from a social worker , PERSON , who stressed inter alia that PERSON had been provided with child welfare services since DATE . She also considered that cooperation with the applicant had been difficult and that he was socially restricted . The foster mother , PERSON , told the court that the applicant had never visited them and that PERSON had developed significantly during his stay with the substitute family . PERSON , then aged DATE , expressed the view that he would like to live with his father , although he had good relations with his foster parents and the other children living in the substitute family .", "ORG upheld the decision on DATE . It found that the mere fact that the applicant had been granted custody of PERSON was not conclusive of the public care in issue . It went on to find that the applicant was reported as having been uncooperative with the social welfare officials , who could not rely on him to take DATE responsibility for QUANTITY As M. had had difficult experiences and had suffered bereavement in his childhood , ORG concluded that , in its assessment , the continuation of public care in the substitute family was in PERSON ’s best interests .", "On DATE , a care plan meeting was held at the home of the substitute family . According to the Government , the social welfare official reported that the applicant had behaved inappropriately at the meeting . This was contested by the applicant .", "ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , having obtained written submissions from ORG and the applicant , upheld the public care decision on DATE .", "In DATE M. lived with the applicant for DATE . He refused to return to the S .- V. family and on DATE , he was placed in a children ’s foster home . When the re - placement was considered by ORG , PERSON did not object , and nor did he express the wish to live with the applicant . The applicant did not attend a preparatory hearing although allegedly invited . PERSON spent DATE with the applicant over DATE .", "For an account of domestic law see PERSON and T. v. GPE [ ORG ] , no . GPE , § § CARDINAL - CARDINAL , ORG CARDINALVII and NORP v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ) . In addition , the provisions of particular relevance to the present case are described below .", "Section CARDINAL of LAW ( lastensuojelulaki , barnskyddslagen , Act no . DATE amended ) provides that ORG must take a child into care and provide substitute care for him or her if ( a ) the child ’s health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by alcohol or drug abuse , by committing an illegal act other than a minor offence or by any other comparable behaviour ; ( b ) the measures of assistance in open care are not appropriate or have proved to be inadequate ; and ( c ) substitute care is considered to be in the best interests of the child .", "According to section QUANTITY , ORG must discharge a child from care when there is no longer any need for the care or substitute placement referred to in section CARDINAL , unless such discharge is clearly contrary to the best interests of the child . In determining the best interests of the child , the duration of the substitute care , the relationship between the child and the persons providing the substitute care , and the contacts between the child and his parents shall be taken into account ." ]

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[ "The applicant was born in DATE and lives in GPE , a city in NORP .", "At the material time the applicant was a colonel of ORG . In DATE he requested an early discharge for health reasons . Under domestic law , long - serving servicemen in need of better housing ( the applicant met these conditions ) could be discharged against their will only if the command provided them with such housing . When asking for discharge , the applicant specified that he wished to receive the housing .", "Since no housing was provided , the applicant sued his command . On DATE the Military Court DATE ordered the Director of ORG to discharge the applicant with the provision of housing in GPE , and to pay MONEY ( RUB ) by way of non - pecuniary damages . This judgment became binding on DATE .", "From DATE the command offered the applicant flats in GPE ( GPE ) , Kursk ( Kursk Region ) , PERSON ( Vladimir Region ) , PERSON ( GPE ) , GPE ( GPE ) , and PERSON ( ORG ) . The applicant rejected these offers because he wished to receive a flat in Tver .", "For this reason , the applicant once again sued his command . On DATE ORG of Garrison CARDINAL ordered the Director of ORG to discharge the applicant with the provision of housing in GPE and to pay RUB CARDINAL by way of non - pecuniary damages . This judgment became binding on DATE after the appeal court had upheld it having specified that the housing should be provided in Tver .", "In DATE , DATE , and DATE the command offered the applicant CARDINAL flats in GPE . The applicant rejected these offers because he considered that the command should have first satisfied his claims for other benefits , and because he disliked the flats’ characteristics .", "Under section CARDINAL § CARDINAL of LAW on ORG , servicemen who have served DATE and more and whose housing needs to be improved , can not be discharged against their will without the provision of such housing .", "According to the Ruling of the Constitutional Court CARDINAL-O of DATE , after expiry of a serviceman ’s contract and in the absence of his written agreement to discharge without provision of housing , he should be considered as serving voluntarily only until the provision of housing ." ]

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

[ "P1-1" ]

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[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and , as far as the ORG is aware , lives in Luttelgeest . She was represented before the ORG by Ms GPE van PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. PERSON , of ORG .", "CARDINAL .", "NORP The applicant travelled to the GPE via GPE from GPE , GPE , on CARDINAL and DATE . She applied for asylum upon her arrival at GPE ( GPE ) FAC . At the first interview ( eerste gehoor ) , held to determine the applicant ’s identity and itinerary , it emerged that she was in possession of a boarding pass for an onward flight from GPE to GPE .", "A further interview ( nader gehoor ) was held on DATE to enable the applicant to state grounds in support of her claim for asylum . The applicant stated that she had been active in the department of GPE as a member of the youth movement of the political party ORG ( ORG ) , visiting towns and villages in the countryside in order to spread political propaganda . Disappointed with the lax and accommodating attitude of her political leaders towards the guerrilla movements active in the country including ORG ( PERSON Revolucionarias de Colombia , ORG ) , she had transferred her allegiance and support to the independent presidential candidate Mr PERSON , who was campaigning on a platform of robust action against the guerrilla movements . Because of her political activity , she had received crudely - worded death threats by telephone and letter from members of ORG .", "The applicant was subjected to a supplementary interview ( aanvullend gehoor ) on DATE in which she was questioned about her stated political activities . She gave details of these , and of the death threats about which she had spoken earlier . She had sought and been granted police protection : police officers had come to visit her from time to time , and one had given her a mobile telephone number to call . She had nonetheless decided to leave her country when the threats failed to diminish . She had obtained a ticket to GPE because , unlike the GPE , GPE was accessible to her without a visa .", "The applicant ’s representative submitted corrections and additions to the report of the supplementary interview on DATE , and again on CARDINAL DATE , for addition to the file .", "On DATE the Minister for ORG ( Minister PERSON Integratie , “ the Minister ” ) gave reasoned notice of her intention ( voornemen ) to deny the applicant asylum .", "Written comments ( zienswijze ) were submitted on the applicant ’s behalf on DATE .", "NORP The Minister gave her decision on DATE , finding that the applicant had actually enjoyed effective protection from the NORP authorities but had given it up to travel to the GPE .", "An appeal was lodged on behalf of the applicant with ORG ( rechtbank ) of GPE , sitting in ‘ s - Hertogenbosch , on DATE . On various dates in the following DATE various supporting information was submitted . The Minister lodged a written statement of defence on DATE . The applicant ’s representative afterwards submitted further documents .", "ORG held a hearing on DATE . It delivered its decision on DATE . It held the applicant ’s appeal well - founded , as the protection admittedly offered by the NORP authorities had been limited to brief visits by the police to the applicant ’s home and could not , in the light of the applicant ’s involvement in politics as a political party activist , be considered sufficiently effective to reduce any risk to her to acceptable proportions .", "NORP The Minister lodged an appeal on DATE to ORG ( GPE bestuursrechtspraak ) of ORG ( PERSON ) .", "A written response was lodged on the applicant ’s behalf on DATE .", "Following a hearing on DATE , ORG gave judgment on DATE accepting the Minister ’s appeal and , deciding anew , retrospectively rejecting the applicant ’s appeal to ORG as ill - founded . It held that the protection offered by the NORP authorities could not be dismissed as ineffective , as the applicant had fled GPE after receiving a new death threat but without giving the protection a chance to be effective .", "The applicant lodged a second asylum application on DATE . She was interviewed in connection with new facts and circumstances ( gehoor nieuwe feiten en omstandigheden ) on DATE . She alleged , among other things , that a family of NORP would - be refugees whom she had met in the GPE in DATE had been murdered , apparently by ORG , after having been returned to GPE .", "On DATE the Head of ORG ( Immigratie- en naturalisatiedienst ) gave reasoned notice of the intention to reject this second asylum request also , given that it remained the case that the NORP authorities had shown themselves willing and able to offer the applicant protection against the ORG .", "On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie , “ the Deputy Minister ” ) , who by this time had replaced the Minister for ORG as the minister responsible for the implementation of aliens law , gave a decision rejecting the applicant ’s second asylum request as unfounded on the ground that , whatever the value of the new facts stated by the applicant , and even if they could be lawfully established , it remained the case that the NORP authorities had been prepared to offer her protection .", "Under LAW of the CARDINAL LAW ( Vreemdelingenwet DATE ) , an alien is eligible for a residence permit for the purposes of asylum if , inter alia ,", "- he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of CARDINAL DATE , or", "- he or she has established that he or she has well - founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .", "On DATE the Deputy Minister of ORG adopted a new paragraph of LAW DATE ) setting out the policy to be followed with regard to asylum seekers from GPE ( Staatscourant ( Official Bulletin ) DATE , no . DATE , published CARDINAL DATE ) . As relevant to the present case , it reads :", "“ CARDINAL.CARDINAL ORG by the authorities", "Within GPE there exist a number of protection programmes for persons fearing persecution by CARDINAL of the warring parties . Admission to CARDINAL of these programmes is , however , not possible for everyone . In addition , in a number of cases effective protection will not be possible .", "Asylum seekers who claim to fear persecution by CARDINAL of the warring parties will have to make out a case that they can not qualify for protection or that effective protection is not possible in their case .", "In principle , asylum seekers who report their problems to the authorities can be expected to await the reaction of the authorities . Persons who report to the authorities and leave GPE immediately without awaiting any reaction will have to provide a satisfactory explanation why it was not possible for them to await the authorities’ reaction .", "If asylum seekers can not satisfy us that in their case protection can not be provided , then there is no reason to grant them a residence permit for asylum purposes based on LAW of LAW . ”", "Mr PERSON , the presidential candidate supported by the applicant , was elected president of GPE for the first time in DATE . He won a second term in DATE . In DATE Mr PERSON , who had been minister of defence under President PERSON , was elected president .", "According to the official country report ( ambtsbericht ) on GPE published by ORG in DATE , the presidency of PERSON was characterised by the expansion and strengthening of the NORP armed forces and police . The guerrilla movements had largely been forced back into rural areas , although they were still predominant in certain areas including parts of the department of GPE . However , protection programmes existed ; CARDINAL of these , operated by ORG and ORG , was available for trade union leaders , human rights activists , mayors and former mayors , journalists , witnesses of human rights violations , leaders of social organisations in general , members of the left - wing ORG party ( now defunct ) and ORG , elected members of local government bodies and local ombudsmen . This programme , for which MONEY had been reserved in DATE , protected CARDINAL individuals at that time .", "In DATE ORG published the following advice to GPE nationals travelling to GPE :", "“ ...", "Terrorism", "In the rural areas confrontations still occur between guerrilla groups , new illegally armed groups , drugs cartels and NORP armed forces . Attacks occur regularly in the country , sometimes also in urban areas . GPE is CARDINAL of the countries with the highest numbers of landmine victims in the world . In rural areas , in particular those to which non - essential travel is to be avoided , you are therefore advised always to follow local advice about the possible presence of landmines .", "Serious crime", "Serious crime and terrorism go hand in hand in GPE . The terrorist organisations ORG and ORG [ Ejército de Liberación Nacional , ORG ] , as well as drugs cartels and so - called new illegally armed groups are involved in drugs manufacturing and trading , abductions , extortion , smuggling and other serious criminal activity .", "You are advised to be vigilant in connection with possible attacks in busy areas and in the vicinity of government and military buildings .", "...", "Unsafe areas", "Owing to the presence and activity of illegally armed groups such as ORG and ORG you are advised not to travel at all to the regions of GPE , PERSON ( not including GPE ) , ORG ( not including PERSON ) , ORG ( not including PERSON , provided that one travels there by air ) , ORG and ORG and surrounding area .", "You are advised to avoid non - essential journeys to GPE ’s rural border areas , rural areas in GPE , ORG , the south and west of Meta , ORG , GPE , the south and west of GPE del GPE , PERSON , GPE , GPE , PERSON , ORG and ORG .", "Visits to the tourist spots , such as the coffee - growing area ( ‘ PERSON ) , GPE , GPE , GPE , GPE and PERSON , involve no security risk as long as normal precautions are taken . This also applies to DATE in the major cities GPE , NORP , GPE , GPE , GPE , GPE and PERSON and the departments of ORG and ORG . ”", "The applicant has submitted a list , taken from ORG , of attacks which she states were carried out by ORG in the department of GPE DATE and DATE . Almost all of the CARDINAL attacks listed are directed against military and police targets , money transports and infrastructure ( e.g. roads , pylons ) . The victims are mostly soldiers , sometimes police officers ; on CARDINAL occasions “ politicians ” ; on CARDINAL occasions oil workers . Unidentified civilians are listed as victims of CARDINAL attacks .", "ORG from GPE ( DATE , ORG / EG / COL/CARDINAL/CARDINAL ) contain the following information ( page CARDINAL , footnote references omitted ) :", "“ Following DATE of intense fighting , a negotiated peace process with the ORG took place DATE . The negotiations eventually broke down in DATE and the conflict resumed , creating large population displacement . Since DATE , President PERSON committed to defeat the guerrillas pursuant to the ‘ ORG and Defence Policy’ . The current military efforts , such as the killing of ORG ’s chief commanders and the dismantling of its military structure , have significantly weakened the ORG . ”", "It describes CARDINAL categories at risk , namely “ Present and Former Members and Supporters of CARDINAL of the Parties to the Conflict ” , “ Local and Regional Government Authorities ” , “ Judges and Other Persons Involved in ORG ” , “ ORG ” , “ Journalists and Other ORG ” , “ ORG Leaders ” , “ ORG ” , “ ORG and NORP ” , “ Women with Certain Profiles ” , “ Children with Certain Profiles ” and “ ORG ” . The category “ Women with Certain Profiles ” includes women victims of forced displacement , women victims of violence ( sexual abuse and sexual violence , torture , mutilation , forced prostitution , forced public nudity ) at the hands of illegal armed groups , forcibly recruited women ( i.e. for purposes such as sexual servitude ) , indigenous women or women of NORP descent , and women who are victims of domestic violence ( pages DATE ) ." ]

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[ "The applicant was born in DATE and lives in GPE .", "His wife died on DATE , leaving CARDINAL child born in DATE . His second claim for widows’ benefits was made in DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . After asking for reconsideration , the decision was again confirmed on DATE . The applicant appealed to ORG which on DATE confirmed the previous decision . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .", "On DATE the applicant applied to the Inland Revenue , requesting an allowance equivalent to that received by a widow , namely Widow ’s Bereavement Allowance ( “ ORG ” ) for the DATE and NORP . On DATE the Inland Revenue informed him that he was ineligible for ORG as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .", "The relevant domestic law and practice is described in the ORG ’s judgment in the case of PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and PERSON , PERSON , PERSON and Geen v. the GPE , nos . CARDINAL , GPE , GPE and GPE , judgment of DATE ." ]

[ "14", "P1" ]

[ "P1-1" ]

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[ "ORG Mr PERSON , a NORP national , lived in GPE DATE . He now lives in GPE .", "ORG On DATE the NORP police arrested the applicant following the discovery of a quantity of drugs and a firearm , among other things , during a search of his home ; he was held in police custody for DATE . CARDINAL other persons were arrested in connection with the same proceedings . The applicant and the other CARDINAL suspects were prosecuted on charges of importing prohibited drugs into GPE , drug trafficking and unlawful possession of a firearm .", "ORG During the trial Mr PERSON claimed that his confessions and those of the other CARDINAL defendants had been made under duress . He apparently also pleaded that his participation in the alleged offences had been intended to secure the arrest of drug traffickers wanted by the NORP guardia civil .", "ORG On DATE the Tribunal de Corts gave judgment as follows :", "\" ...", "[ ORG ] sentences PERSON , who has been found guilty of importing , possessing and dealing in toxic substances and prohibited drugs and of unlawful possession of a firearm , to DATE imprisonment ; ... orders that all the accused be deported from the ORG and that they pay costs ; the time already spent in custody in connection with these proceedings by those convicted shall be deducted from the principal sentence .", "This judgment is final . \"", "The judgment was served on Mr PERSON on DATE in the presence of his lawyer .", "ORG In its report the ORG noted in addition that after CARDINAL further trials ORG sentenced the applicant to DATE imprisonment for bribing a civil servant and to DATE imprisonment for attempting to escape , and that Mr PERSON claimed that these judgments - whose date has not been determined - were never served on him .", "Mr PERSON chose to serve his sentence in GPE and was taken to GPE prison on DATE .", "On DATE he attempted to escape and on CARDINAL DATE was sentenced on that account to DATE imprisonment by ORG .", "He served part of his sentence at ORG prison DATE and DATE and was then moved to Muret prison .", "ORG On DATE the applicant lodged a memorial with the ORG public prosecutor , complaining of the proceedings conducted against him in GPE and of his detention in GPE .", "In a letter to the governor of Muret prison dated DATE and communicated to the applicant on CARDINAL March , the public prosecutor replied as follows :", "\" Please inform PERSON , prisoner number DATE , that he should address his petition to the President of ORG , which has sole jurisdiction , as the judgment which imposed the sentence he is serving was delivered by that court .", "Please inform him that no further action is to be taken in connection with his application of DATE . \"", "ORG On DATE Mr PERSON lodged a criminal complaint with ORG against the ORG public prosecutor , alleging arbitrary detention and denial of justice . He also lodged an application to join the proceedings as a civil party . He claimed that the public prosecutor had not complied in his case with the requirements of Articles CARDINAL - CARDINAL et seq . of the Code of Criminal Procedure concerning the transfer to GPE of persons convicted abroad and had not even informed him of the existence of those provisions .", "ORG On DATE the Minister of ORG wrote to the principal public prosecutor at ORG as follows :", "\" On DATE you forwarded to me a letter from Mr PERSON complaining of the proceedings as a result of which he came to serve his sentence in GPE .", "I have the honour to inform you of the following .", "PERSON chose to serve his sentence in a NORP prison , as he was entitled to do under LAW of LAW of DATE . No right to retract such a choice is conferred by that provision .", "A transfer carried out under the above - mentioned LAW DATE means a transfer from a ` sentencing ORG ' to an ` administering ORG ' .", "With regard to the circumstances of the complainant 's detention , GPE is indeed the ORG administering enforcement of the sentence imposed on him in GPE , and there is no provision in the Convention for transfer from CARDINAL administering ORG to another . I would add that , in any event , GPE can not even be regarded as the sentencing State , since in law it is not recognised as a ORG . It should be noted that the arrangement between GPE and GPE in the matter of the execution of prison sentences is not the only one of its kind ; it is similar to the situation under the Convention on neighbourly relations between GPE and the Principality of GPE of CARDINAL DATE . With regard to application of Articles CARDINAL - CARDINAL et seq . of the Code of Criminal Procedure , concerning the transfer to GPE of persons sentenced and imprisoned abroad , those provisions are not applicable in this case , as GPE is not considered a subject of international law and its courts are therefore not foreign courts within the meaning of Article CARDINAL - CARDINAL . \"", "ORG The applicant was released on CARDINAL DATE and then expelled from NORP territory .", "ORG The transfer to GPE of a person convicted abroad is governed by the following provisions of LAW ( Law no . CARDINAL of DATE ) :", "\" Where , by virtue of an international convention or agreement , a person detained in execution of a sentence passed by a foreign court is transferred to NORP territory in order to serve the remaining portion of his sentence there , the sentence shall be enforced in accordance with the provisions of this LAW , and in particular Articles CARDINAL - CARDINAL to CARDINAL - CARDINAL . \"", "\" Immediately after his arrival in NORP territory the convicted prisoner shall be brought before the public prosecutor of the place of arrival , who shall question him as to his identity and draw up a record of the interview . Where , however , it is not possible to question him immediately , the convicted person shall be taken to the local prison , where he may not be detained for more than TIME . On expiry of that limit the chief warder shall , without more , ensure that he is brought before the public prosecutor [ since the entry into force of Law no . CARDINAL - CARDINAL of CARDINAL DATE the words \" chief warder \" have been replaced by \" prison governor \" ] .", "Having inspected the documents recording the GPE ' agreement to the transfer and the prisoner 's consent , together with an original or execution copy of the foreign judgment containing his conviction , accompanied , where necessary , by an official translation , the public prosecutor shall apply for the convicted person 's immediate imprisonment . \"", "\" The portion of the sentence imposed abroad remaining to be served in the foreign State shall , by virtue of the international convention or agreement , be directly and immediately enforceable in NORP territory .", "However , where the sentence imposed is more severe , in nature or length , than the penalty provided for in NORP law for the same offence , the criminal court of the place of detention shall , on an application by either the public prosecutor or the person convicted , substitute for it the sentence which is most similar in LANGUAGE law , or reduce it to the maximum the law allows . Consequently , the court shall determine , in the individual case , the nature of the sentence to be enforced and its length , which may not exceed the portion which remained to be served in the foreign ORG . \"", "\" The court shall give its decision in public , after hearing thepublic prosecutor , the person convicted and , where appropriate , the lawyer chosen by him or officially assigned at his request under the legal - aid scheme . This decision shall be enforceable immediately , any appeal notwithstanding . \"", "\" The time taken for the transfer shall be deducted in full from the sentence enforced in GPE . \"", "\" All appeals and applications relating to enforcement of the prison sentence remaining to be served in GPE shall be submitted to the criminal court of the place of detention . The provisions of Article CARDINAL of this Code shall apply . \"", "\" Execution of sentence shall be governed by the provisions of this Code . \"", "\" No criminal proceedings may be brought or continued and no sentence may be enforced in respect of the same offence against a convicted person who , under the terms of an international convention or agreement , is serving in GPE a prison sentence imposed by a foreign court . \"", "The LAW of the Principality of Andorra , in force since DATE , and ORG , of DATE , radically altered the LOC judicial system .", "ORG In the PERSON and PERSON v. GPE and GPE judgment of DATE ( Series A no . CARDINAL , pp . CARDINAL , paras . CARDINAL - CARDINAL ) the ORG described the LOC legal system before DATE as follows :", "\" CARDINAL . ORG With the exception of ORG , which settles disputes between neighbours and is responsible to ORG , the courts of GPE have their legal basis in ORG historic ` right of justice ' and are thus directly responsible to ORG . The members of the lower courts are always of NORP nationality , while those of higher courts are often of foreign origin , because of the smallness of the ORG and out of concern for preserving the independence of the judiciary .", "ORG As a general rule , judges are appointed by ORG . ORG traditionally selects NORP judges , either honorary judges or serving judges seconded by ORG , chosen with regard to personal competence , knowledge of LOC law , knowledge of NORP and understanding of NORP . The episcopal Co - Prince bases his choice on the criteria of competence , independence , lack of personal interests in GPE and availability for service , judicial office in GPE being incompatible with the position of judge in GPE , even on a part - time basis and for a fixed term .", "Criminal justice", "ORG A decree of the veguers [ ( direct representatives in GPE of the CARDINAL ORG , the President of GPE and ORG ) ] of DATE laid the foundations of a new criminal justice system , providing in particular for the intervention of counsel and the establishment of a public prosecutor 's office . A decree on criminal procedure followed on DATE . A Code of Criminal Procedure , based on the veguers ' decrees and on customary law , was introduced in DATE and amended on DATE .", "( a ) The institutions", "( i ) The batlles", "ORG The batlles are first - instance judges with criminal and civil jurisdiction , and also have other duties . They carry out investigations into crimes which have been committed , supervise the enforcement of court judgments pronounced in GPE , and sit on ORG as non - voting assessors ( see paragraph CARDINAL below ) . Since the veguers ' decree of DATE they are CARDINAL in number . The NORP veguer and the episcopal Co - Prince each appoint CARDINAL of them , chosen from a list of CARDINAL names drawn up by ORG . The persons appointed must have PERSON nationality .", "( ii ) ORG", "ORG was established by ORG in DATE . It has first - instance jurisdiction over minor criminal cases and appeals against its judgments can be brought before ORG .", "( iii ) The Tribunal de Corts", "ORG was until DATE the supreme criminal court . It ` judges ... all cases relating to offences committed on the territory of the Valleys , without difference or distinction of persons , and offences committed by NORP abroad ' ( LAW ) . It also rules on appeals brought against judgments of the batlles .", "ORG The court is composed of CARDINAL members , the Judge of Appeals and the CARDINAL veguers .", "The Judge of Appeals presides over the court , directs the proceedings and acts as the reporting judge who drafts the judgment . He decides alone on appeals concerning detention on remand . He is a NORP or NORP judge appointed for DATE by each Co - Prince alternately ; he must have a knowledge of the law of the ORG and its official language , NORP .", "The veguers ... are entitled to sit but generally do not do so . The NORP veguer - a diplomat appointed by ORG for an indefinite period - has since DATE been substituted by a NORP judge , either honorary or seconded by ORG . The episcopal veguer has not sat since DATE and now delegates his duties to a NORP judge ... The veguers or their substitutes need not be PERSON , nor need they be jurists , but they must speak LANGUAGE . They are assisted by CARDINAL batlles , CARDINAL notaries who act as clerks of court , an usher and CARDINAL rahonadors , who are delegated by ORG , of which they are members .", "ORG The public prosecutor 's office is composed of a fiscal general and an assistant fiscal general , who are appointed for DATE by whichever of ORG has not appointed the Judge of Appeals .", "( iv ) The Tribunal Superior de Corts", "ORG By a decree of CARDINAL DATE , which had been in the course of preparation since DATE , the veguers established a new court , the Tribunal Superior de Corts , which consists of CARDINAL judges appointed for DATE by ORG and decides on appeals ( recursos de suplicació ) against judgments of ORG . On DATE they issued a further decree dealing with procedure , including the following transitional provisions :", "' CARDINAL . ORG Convicted persons who before the coming into force of the present decree have to serve or ... are in the course of serving sentences of imprisonment as a result of judgments of ORG may bring an appeal ( recurs de suplicació ) against such sentences to the Tribunal Superior within DATE from the coming into force of the present decree .", "ORG The present decree shall come into force on DATE . '", "( b ) Enforcement of sentences", "ORG Article CARDINAL of LAW provides for CARDINAL distinct systems of enforcement for sentences of imprisonment passed in GPE : a convicted person serves his sentence in an NORP prison if the sentence is DATE , and in a NORP or NORP prison in other cases .", "( i ) The choice of country of detention", "ORG In the latter case it is for the convicted person to choose between GPE and GPE . The choice is definitive and implies the tacit acceptance of the prison regime of the country chosen . This practice originates in customary law as traditionally applied since DATE .", "DATE , transfer to GPE was requested by CARDINAL convicted persons and to GPE by CARDINAL . No prisoners from GPE were admitted to NORP prisons in DATE and DATE .", "( ii ) The NORP system", "ORG If a convicted person chooses GPE , as in the present case , enforcement of the sentence is governed by the provisions of LAW ( circular of the Minister of Justice of CARDINAL DATE ) . Like any person convicted in a foreign country and transferred to GPE , he is entitled ( according to ORG ) to remission of sentence , prison leave and semi - imprisonment in the same way and subject to the same conditions as prisoners sentenced by a NORP court ( Article D.CARDINAL of LAW ) .", "ORG The judge responsible for the enforcement of sentences has sole jurisdiction to decide whether to grant the prisoner release on licence or to remit part of his sentence , within the legal limits .", "If the term of imprisonment exceeds DATE , it is for the Minister of ORG to grant release on licence . The Minister must first obtain the consent of ORG ( LAW ) .", "ORG Under LAW , disputes relating to the enforcement of sentences are brought before the court which pronounced the sentence , in this case the LAW court .", "( iii ) Pardons", "An individual pardon can only be granted by the CARDINAL ORG acting jointly .", "ORG Collective pardons do not apply to prisoners sentenced by PERSON courts who serve their sentences in GPE , as they were expressly excluded by a decree of the President of GPE of DATE . The presidential decrees of CARDINAL DATE and CARDINAL DATE did authorise pardons to take effect if this was allowed by international agreements ratified by GPE , but there is no specific arrangement with GPE on this point .", "( iv ) Amnesties", "ORG Only the LOC authorities have jurisdiction to grant an amnesty . In addition , ORG can vary its own decision by reducing the sentence and granting genuine release on licence , which is referred to as ` provisional release ' .", "Civil justice", "ORG There are CARDINAL levels of jurisdiction in civil matters .", "ORG The batlles ( see paragraph DATE above ) have first - instance jurisdiction , as in criminal cases .", "ORG The Judge of Appeals ( see paragraph CARDINAL above ) hears appeals against the decisions of the batlles .", "ORG The court of final jurisdiction is ORG which consists of CARDINAL ` senates ' , ORG of GPE and ORG .", "The former consists of CARDINAL ex officio members ( the President of the GPE tribunal de grande instance and the NORP veguer , who has not sat for DATE now ) and CARDINAL members appointed for DATE by ORG ( a lawyer from the GPE bar and a person with knowledge of the language and customs of GPE ) . It does not apply NORP law or follow NORP procedure ; in particular , it is not subject to review by ORG .", "The latter senate consists of a President , a Vice - President and CARDINAL judges ( vocals ) , appointed by the episcopal Co - Prince . The CARDINAL senates have their seats at GPE and GPE respectively , but carry out their functions in GPE . \"", "ORG Since DATE CARDINAL prisoner from GPE has been admitted to a NORP prison .", "ORG In their joint report of CARDINAL DATE on the legislation of ORG prepared at the request of ORG ) Mr PERSON , Judge of ORG , and Mr PERSON , member of ORG , made the following observations :", "ORG The LAW and the qualified law on justice have radically reformed the LOC judicial system . The system described by ORG in DATE and CARDINAL of its judgment in the case of PERSON and PERSON of DATE ( Series A no . CARDINAL ) is consequently a thing of the past .", "At present , the court of first instance is the PERSON or ORG and the ORG themselves who have criminal , civil and administrative jurisdiction . The ORG sit as CARDINAL - person courts for petty criminal offences , for civil cases involving minimal amounts and for administrative cases concerning social security disputes . In other cases , ORG meets with CARDINAL members or in plenary .", "ORG acts as a first - instance court for major offences and as an appeals court for petty and minor offences .", "As for ORG , it has jurisdiction for all appeals lodged against judicial decisions handed down by the PERSON in civil and administrative cases , and by ORG in criminal cases .", "All judges are appointed for a renewable DATE term by ORG . During their term of office they are irremovable . The office of judge is incompatible with any public office and with the exercise of any other professional activity .", "Under DATE , paragraph CARDINAL , of the LAW , criminal judgments are handed down by a judicial authority other than the one in charge of the investigation .", "The office of the public prosecutor forms a separate body possessing a status like that of the judiciary . Its members can not receive instructions from the political authorities .", "ORG is composed of CARDINAL members appointed as follows : CARDINAL by ORG , CARDINAL by ORG [ who presides over ORG , which is the legislative organ and whose members are elected by universal suffrage ] , one by ORG and CARDINAL by the judges . Their DATE term is not renewable . The High Council appoints the judges , the Attorney General and his deputies . It exercises disciplinary power and , generally speaking , administers justice . There is then no Minister of ORG in GPE . ORG also has the task of guaranteeing the independence of PERSON justice , which formerly was the responsibility of ORG . ORG could not , however , exert any influence over the judges on account of their personality .", "ORG We have no criticisms to make about the organisation of the judicial system , as briefly described . We consider that the limited term of office of the judges is not such as to jeopardise their independence . The composition of ORG and the difficulty of replacing judges , which leads to the almost automatic renewal of terms of office , seem to offer sufficient safeguards in this connection .", "It should also be noted that the ORG assumes liability for injury resulting from judicial error or miscarriage of justice .", "In the LAW , ORG is treated separately from the judicial system . It is composed of CARDINAL judges of whom CARDINAL is appointed by ORG and CARDINAL by the Consell General . Their term of office is DATE and is not immediately renewable .", "It is the competent organ for appeals against laws on the grounds of unconstitutionality , requests for preliminary opinion as to the conformity of laws and international treaties with the LAW , constitutional protection procedures ( empara appeals ) , and conflicts of jurisdiction between public authorities . ORG questions are also addressed to it by the courts .", "The remedy of empara has deliberately been restricted to acts by the public authorities that impair fundamental rights so as to guard against the Constitutional Court becoming bogged down with appeals , which might have the effect of increasing the length of proceedings . ORG thus drew lessons from NORP experience of the remedy of amparo . \"", "ORG In the PERSON and PERSON judgment the ORG described ORG 's international status as follows ( pp . DATE , paras . CARDINAL - CARDINAL ) :", "\" CARDINAL . ORG The status in public international law of ORG is striking by its originality and ambiguity , so much so that it is often regarded as an entity sui generis .", "The practice followed in DATE suggests that there is now agreement between ORG to regard themselves as equals in the conduct of ORG 's international relations . GPE has entered into a number of bilateral and multilateral relations in this field .", "A. Bilateral relations", "Relations with GPE", "ORG Relations between GPE and GPE do not fit into the pattern of relations between sovereign GPE . They have never taken the form of international agreements , as the NORP ORG is the President of GPE and ORG have always refused to recognise the ORG 's statehood . Such relations take a number of forms : unilateral NORP acts , such as the establishment of NORP schools ; administrative arrangements , such as those dealing with social security , telephone networks and customs regimes ; de facto relationships , sometimes deriving from custom ( this is the case with the enforcement of certain sentences outside GPE - see paragraphs CARDINAL above ) , sometimes based on administrative or judicial practice ( decisions of the LOC courts have the status of res judicata in GPE and do not require an exequatur for enforcement ) .", "ORG also place a unit of police ( gendarmerie ) at the disposal of GPE .", "Finally , GPE does not have a consulate in the ORG . NORP nationals in GPE are dealt with by the prefecture of the ORG department .", "Relations with GPE", "ORG Relations between GPE and GPE follow a similar pattern . They feature unilateral NORP acts , such as LAW of DATE regulating trade between the ORG and GPE , and bilateral arrangements such as the agreements of an administrative type relating to social security . ORG also make certain facilities available to the PERSON . Thus a unit of the guardia civil is stationed in GPE : the members of this unit are no longer responsible to their original administrative department and the episcopal veguer can effectively veto their appointment or presence in GPE ; the NORP authorities are responsible for their pay , while the costs of equipment and operational expenditure in respect of administrative and in particular consular functions are borne by the PERSON budget . There is no NORP consulate in GPE . The episcopal veguer acts as de facto consul for NORP citizens .", "Relations with GPE other than GPE and GPE", "ORG does not maintain diplomatic relations with any other ORG . On the other hand , it has entered into consular relations with the following CARDINAL countries : GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . It does not have its own consular representation , however , and its nationals are protected by the NORP and NORP authorities in this respect .", "ORG relations", "International organisations", "ORG FAC is not a member of any intergovernmental international organisation . On DATE ORG asked the Secretary General to contact the CARDINAL ORG to define the areas suitable for co - operation between ORG and ORG . In so doing it was giving an ` interim response ' to Recommendation CARDINAL ( DATE ) on ORG , adopted by ORG on DATE .", "International agreements", "GPE has acceded to CARDINAL international agreements , LAW ( GPE , DATE ) and ORG in the Event of Armed Conflict ( GPE , DATE ) .", "International conferences", "Since LAW ( GPE , DATE ) ORG has regularly taken part in meetings of ORG . It has also sent delegations to CARDINAL conferences : the conference on the protection of cultural property in the event of armed conflict ( GPE , DATE ) , the conference to revise LAW ( GPE , DATE ) , and the conference on the protection of phonographic recordings ( GPE , DATE ) . Since DATE , on the order of ORG , the ORG 's representatives at these conferences have been appointed by the veguers jointly . CARDINAL members of ORG now accompany the said representatives ; ORG is the spokesman of the delegation .", "ORG", "For DATE ORG was not part of the ORG ' customs territory . On DATE ORG adopted a directive inviting the ( Brussels ) Commission to negotiate an agreement with ORG with a view to creating a customs union for industrial products . The agreement in question came into being on DATE in the form of an exchange of letters , and entered into force on DATE . The ORG 's letter was signed by the representatives of ORG and by ORG . \"", "ORG Since then ORG 's international status has undergone sweeping changes . The Constitution of CARDINAL DATE defines GPE as \" an independent , democratic and social ORG based on the rule of law \" ( Article CARDINAL para . CARDINAL ) . The ORG became a member of ORG on DATE and of ORG on DATE . On DATE it joined ORG and signed ORG .", "A treaty on \" neighbourly relations , friendship and co - operation between GPE , GPE and ORG was signed on DATE by the NORP and NORP Ministers for ORG and on DATE by ORG 's ORG . In this treaty GPE and GPE recognised GPE as a sovereign ORG , established diplomatic relations with the country and undertook to facilitate its participation in international conferences and organisations and its accession to conventions .", "Although ORG retains some special features - in particular the institution of ORG - there is no doubt that , whatever the position may have been hitherto , it is now a \" ORG \" for the purposes of public international law ." ]

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[ "5" ]

[ "5-4" ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE business premises in ORG leased by the applicant were blown up by unknown perpetrators .", "On DATE the applicant instituted civil proceedings against the ORG before ORG ( PERSON ) seeking damages . He based his claim on section CARDINAL of LAW .", "On DATE ORG introduced an amendment to LAW ( “ the LAW ” ) which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending enactment of new legislation on the subject .", "On DATE ORG stayed the proceedings pursuant to LAW .", "On DATE ORG introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( “ the DATE LAW ” ) .", "Pursuant to the DATE LAW , on DATE ORG resumed the proceedings and , at the same time , dismissed the applicant 's action finding that it no longer had the jurisdiction in the matter . The applicant did not appeal against that decision .", "The relevant part of LAW ( Zakon o obveznim odnosima – Official Gazette , LAW CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) provided as follows :", "“ Liability for loss caused by death or bodily injury or by damage or destruction of another 's property , when it results from acts of violence or terror or from public demonstrations or manifestations , lies with the ... authority whose officers were under a duty , according to the laws in force , to prevent such loss . ”", "NORP The relevant part of LAW ( Zakon o izmjeni PERSON o obveznim odnosima – Official Gazette no . CARDINAL/CARDINAL ) ( “ the DATE LAW ) reads as follows :", "“ Section CARDINAL of LAW ( the Official Gazette nos . CARDINAL , CARDINAL and DATE ) shall be repealed . ”", "“ Proceedings for damages instituted under LAW shall be stayed .", "The proceedings referred to in sub - section CARDINAL of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts . ”", "This Act entered into force on DATE .", "The relevant part of LAW ( Zakon o parničnom postupku – Official Gazette nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL ) provides :", "“ Proceedings shall be stayed :", "...", "( CARDINAL ) where another statute so prescribes . ”", "The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija – Official Gazette no . CARDINAL/CARDINAL ) ( “ the DATE LAW ” ) provides , inter alia , that the ORG is to compensate only damage resulting in bodily injuries , impairment of health or death . All compensation for damage to property is to be sought under LAW . LAW provides that all proceedings stayed pursuant to LAW are to be resumed .", "This Act entered into force on DATE .", "In its judgment Rev-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ORG held , while dismissing the plaintiff 's claim on its merits , that , after the entry into force of the DATE LAW , the ORG was no longer liable for the damage ensuing from the destruction of the plaintiff 's business LOC ( attorney 's office ) that had been blown up by unknown perpetrators .", "The relevant part of LAW ( Zakon o obnovi – Official Gazette nos . CARDINAL , CARDINAL , CARDINAL/CARDINAL and CARDINAL ) provides , inter alia , that the ORG shall grant , under certain conditions , reconstruction assistance to owners of property ( flats and family houses only ) which has been damaged during the war . The request is to be submitted to the competent ministry ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by Mr PERSON , of ORG , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant sued a local authority and an insurance company ( “ the GPE ” ) in respect of damage caused to property which the applicant had leased from the local authority . He claimed that the authority had failed to look after the property and the surrounding area , and that the insurance company had failed to pay on a policy which covered the damage . The applicant ’s claims , initially for £ MONEY , were revised at trial to a total of £ MONEY . On DATE , the GPE made a payment into court of £ MONEY . The court offices of the GPE and GPE - upon - ORG forwarded form NCARDINAL to the applicant to inform him of the payment in . The forms , which provided for a number of options , had not been filled in . The GPE - upon - ORG gave judgment against the applicant in CARDINAL judgments of CARDINAL and DATE . Costs were ordered against the applicant , and leave to appeal was refused . Lord Justice PERSON refused permission to appeal to ORG on DATE , and he further refused permission to appeal to ORG on DATE .", "On DATE , the GPE made a statutory demand in respect of the costs awarded against the applicant in the original action . The demand was not met , and on DATE a bankruptcy petition was served . The applicant was adjudicated bankrupt on DATE . An appeal against the bankruptcy order was dismissed on DATE , and on DATE the applicant applied , out of time , for permission to appeal . The application was refused by Lord Justice PERSON and Sir PERSON on DATE on the ground that the bankruptcy order was made in respect of an unchallengeable judgment debt as to which there was no counter - claim . At the same time , Lord Justice PERSON gave directions that the CARDINAL matters involving the applicant and then pending before ORG ( see below ) were to be heard together before DATE .", "On DATE , at the renewed public examination of the applicant , the applicant was committed to prison for DATE for failure to comply with the reasonable requests of the trustee in bankruptcy . He had previously been imprisoned on a warrant for his arrest after he had failed to attend a hearing , and he had also been imprisoned for DATE for failing to co - operate with the trustee .", "The bankruptcy proceedings revealed a number of incidents in which the applicant failed to comply with various obligations . He did not attend appointments at the Official Receiver ’s office on DATE , DATE , CARDINAL May and DATE . He also failed to attend for his public examination , as a result of which he was arrested and held in custody DATE and DATE . Thereafter , he failed to provide the Official Receiver with a statement of affairs , as required by the bankruptcy legislation , and he refused to attend the Official Receiver to answer questions . After the dismissal of his appeal against the bankruptcy order on DATE , the applicant ’s public examination was resumed before Mr Justice PERSON on DATE . The applicant again refused to answer questions and , after an adjournment to allow him more time to comply , the applicant was sentenced to DATE in prison on DATE .", "After the judgment of DATE in the initial action , the applicant brought CARDINAL further sets of proceedings , against the Lord Chancellor ’s Department ( sued as ORG ) in respect of the information contained in Form NCARDINAL , against the GPE which , he claimed , had misled him into not accepting the payment into court , and against the GPE ’s barrister who , he claimed , had misled him into thinking that he could not withdraw the payment into court at the beginning of the action on DATE .", "In the proceedings against the Lord Chancellor ’s Department , the applicant ’s claim was issued on DATE and re - issued on DATE . On DATE District Judge PERSON in ORG noted that Form NCARDINAL stated that :", "“ if the defendant does wish to accept the payment in he should do so in writing within DATE . It then proceeds to give other events and times in brackets . The form , in this respect , is most unsatisfactory and is made worse because none of the various bracketed events are deleted . Indeed , I would not expect the average court clerk to have sufficient knowledge of the rules to know how to complete this part of the form and I imagine that in most cases all options were left open . ”", "The claim was nevertheless dismissed on the ground that it had no real prospect of success , as the applicant could not establish that the CARDINAL error on the form had caused his losses . Leave to appeal was granted by the trial judge , and the appeal was dismissed by His Honour Judge PERSON ( a circuit judge ) in ORG on DATE . Judge PERSON summarised the claim as being that the court office had been negligent in that it issued a form that was ambiguous and to a certain extent incorrect , as a result of which the applicant did not accept the payment into court , lost the proceedings , and was ordered to pay costs of £ MONEY . The judge accepted that the Lord Chancellor ’s Department owed the applicant a duty of care and that the duty had been breached . He did not , however , accept that the applicant had acted to his detriment as a result of the breach : on the applicant ’s own account , he had not accepted the payment into court before the hearing because he relied on a statement of the GPE ’s barrister . The applicant applied for leave to appeal by a series of notices . CARDINAL of the applicant ’s points on appeal concerned the issue of the participation of the district and circuit judges who sat as single judges in the case . He underlined that they had been recommended for appointment , and were governed and could be dismissed by the Lord Chancellor , who was the defendant in the proceedings . Lord Justice PERSON , determining the application for permission to have a second appeal , granted permission on DATE , principally on the “ point of constitutional importance ” concerning the position of circuit and district judges in cases against the Lord Chancellor or his department . Leave to appeal was also granted on a number of subsidiary points .", "The appeal before ORG was to have been heard on DATE , the ORG Solicitor had appointed counsel , and an amicus curiae had been appointed . Shortly before the hearing , the ORG office learned that the applicant had been adjudicated bankrupt on DATE , and the hearing was adjourned to establish the effect of the bankruptcy on the proceedings . The Official Receiver took the view that the causes of action had vested in him , and that he had no funds to pursue them . He added , in a letter of DATE , that he was prepared to consider a request to assign the causes of action to the applicant , but in the absence of co - operation from the applicant , was unwilling to do so .", "The claim in the second action against the GPE , in respect of alleged negligent misstatement by the GPE ’s representatives during the trial of the initial action , was struck out by a district judge on DATE . Permission to appeal was refused on DATE by a circuit judge . No appeal lay against that refusal by virtue of Section CARDINAL(CARDINAL ) of ORG DATE . The applicant ’s request for a further appeal was discussed in ORG on DATE , when Lord Justice PERSON directed that the request be put before him to determine what direction to give . On receiving the papers , it became apparent that no appeal lay , and Lord Justice PERSON so directed . The applicant was informed on DATE and requested an oral hearing . On DATE Lord Justice PERSON directed that the hearing should be held together with the hearing in the action against the Lord Chancellor ’s Department .", "The action against the GPE ’s barrister was dismissed on DATE , and the applicant applied for permission to appeal . The application was dealt with by Lord Justice PERSON on DATE , when he directed that the application should be listed with the action against the Lord Chancellor ’s Department .", "On DATE , pursuant to the directions given on DATE in the bankruptcy appeal , Lord Justice PERSON considered the outstanding issues in relation to the CARDINAL sets of proceedings before him ( those CARDINAL above ) . He outlined the history of the case , and noted the CARDINAL important points which were raised . The first point was whether the district and county court judges were sufficiently independent of the Lord Chancellor , having regard to the terms of their appointments , to avoid a perception of bias or a violation of LAW . The second point was whether LAW ( CARDINAL ) of ORG DATE was compatible with LAW DATE .", "Lord Justice PERSON found that all CARDINAL actions had vested in LOC on the applicant ’s bankruptcy . He did not accept the applicant ’s claim that where matters of great public importance had been identified , they should always be pursued . He insisted that it was always necessary for someone to be able and willing to pursue them . He noted specifically the applicant ’s history of non - cooperation with LOC .", "The appeal in the action against the Lord Chancellor ’s Department was struck out , and the applications in the other CARDINAL actions were also struck out . The orders were made on the grounds “ that the person in whom the causes of action are vested does not wish to pursue that appeal and those applications ; and that [ the applicant ] , who does wish to pursue them , has no standing in those proceedings to do so ” . Lord Justice PERSON also directed that the applicant “ on providing to this court a copy of an assignment of the causes of action by the trustee in bankruptcy to him , may apply in writing to this court , within DATE , to reinstate the appeal and the applications . ... [ I]t seems to me correct , in view of [ the applicant ’s ] strong sense of grievance ... to leave open the possibility that , if such an assignment were made in his favour , he should be able to restore the appeal in this court . DATE may , itself , be extended on a written application to this court , with a copy to the Official Receiver , setting out the circumstances which suggest that any extension of the period would be likely to serve any purpose . ”", "On DATE the Official Receiver asked the applicant for copies of requests for assignment of the action which the applicant had claimed had been made . He also asked for the applicant ’s proposals as to an assignment , and added that on receiving them he would consult his solicitors and seek their advice . He noted that he would have to be put in funds , as there were no funds in the estate and no assets of which he was aware which could be used to provide funds .", "On DATE , in reply to CARDINAL letters of DATE from the applicant , the Official Receiver responded in the following terms :", "“ As requested , I confirm that it is not my intention to pursue these matters further . I do not have access to public funds as ORG , other than in the most limited of capacities , and as you will know ... it is not the view of ORG that the matter should be taken forward ... I must also point out , that your failure to co - operate in these proceedings does nothing to advance your arguments , as you seem to be of the opinion that any decision that I take should be made in a vacuum .. . I am of the view that you have not co - operated in any substantive way whatsoever to date ...", "As far as I am concerned , on no occasion have you made a formal request for the assignment to you of the ... action . ... I should be grateful if you would now forward a copy of the letters to which you refer . The absence of those letters suggests to me that no such letters were ever written by you ... If you wish the matter to proceed , please let me have your remittance for [ £ MONEY plus GPE for solicitors’ costs ] , and I will instruct them to consider the matter , and advise me ... ”", "The applicant states that the Official Receiver sought his further committal to prison for failure to answer questions but that the application was refused on DATE .", "The following is an extract from the skeleton argument of the amicus curiae appointed for the hearing which was to be held before ORG on DATE ( see above ) :", "“ Appointment", "CARDINAL ) Circuit judges are appointed by the Queen on the recommendation of the Lord Chancellor ( see LAW DATE section CARDINAL ) .", "CARDINAL ) There is a significant judicial input into the selection of circuit and district judges . The selection process for both ORG involves confidential “ soundings ” from judges and members of the legal profession , which are not disclosed to candidates ( ... ) . More importantly , the selection of candidates for interview is made by a panel which comprises a sitting ORG , a civil servant and a lay person ( ... ) .", "CARDINAL ) That said , the final decision as to whom to recommend to the Queen for appointment lies with the Lord Chancellor alone ( ... ) . The Lord Chancellor ’s recommendation is a necessary condition for appointment ( Courts Act DATE section CARDINAL ) .", "CARDINAL ) The arrangements for the appointment of a District Judge are similar ( ... ) save that the appointment of ORG is made by the Lord Chancellor himself pursuant to section CARDINAL of LAW DATE ....", "CARDINAL ) The personal qualities sought in candidates for the posts of ORG Judge include “ integrity and independence ” which is said to include “ independence of mind and moral courage ” and “ fairness and impartiality ” ( ... ) .", "Pay", "CARDINAL ) The salaries of both ORG are , by statute , set at the discretion of the Lord Chancellor , acting with the concurrence of the ORG ( ORG ) or the consent of the Minister for ORG ) .", "CARDINAL ) In the case of ORG , section CARDINAL ) of GPE DATE provides :", "“ Subject to the provisions of this section , there shall be a district judge for each district , who shall be appointed by the Lord Chancellor and paid such salary as the Lord Chancellor may , with the concurrence of the ORG , direct . ”", "CARDINAL ) In the case of ORG , section CARDINAL ) of the Courts Act DATE provides :", "“ Subject to Part II of Schedule CARDINAL to this LAW , there shall be paid to each Circuit judge such salary as may be determined by the Lord Chancellor with the consent of the Minister for ORG . ”", "CARDINAL ) Section CARDINAL(CARDINAL ) provides , inter alia , that salary shall be payable at such intervals , not exceeding DATE , as the ORG may determine ( s. CARDINAL(CARDINAL)c ) and that such salary may be increased , but not reduced , by a further determination under LAW ( s. CARDINAL(CARDINAL)(d ) ) .", "CARDINAL ) Mr Staff [ a civil servant from the Lord Chancellor ’s Department who gave evidence in the case ] explains that “ in practice ” judicial salaries are now settled DATE “ in the light of recommendations made to the Government by ORG ” . It does not appear , however , that this ORG has any statutory underpinning . Its recommendations are not binding on the Lord Chancellor or the Executive .", "Oath", "CARDINAL ) As PERSON Staff points out ( witness statement § § CARDINAL and CARDINAL ) both ORG are required to take the oath of allegiance and the judicial oath ( see ORG DATE section CARDINAL(CARDINAL ) , Courts Act DATE section CARDINAL(CARDINAL ) ) .", "Removal", "CARDINAL ) ORG may be removed from office by the Lord Chancellor pursuant to section CARDINAL ) of FAC DATE which provide :", "“ ( CARDINAL ) A person appointed to an office to which subsection ( CARDINAL ) applies shall hold that office during good behaviour .", "( CARDINAL ) The power to remove such a person from his office on account of misbehaviour shall be exercisable by the Lord Chancellor .", "( CARDINAL ) The Lord Chancellor may also remove such a person from his office on account of inability to perform the duties of his office . ”", "CARDINAL ) Circuit Judges may be removed from office by the Lord Chancellor pursuant to section CARDINAL of the Courts Act DATE . That provides :", "“ The Lord Chancellor may , if he thinks fit , remove a Circuit judge from office on the ground of incapacity or misbehaviour . ”", "....", "CARDINAL ) It is submitted that the most troubling aspect in this case , from an LAW , is the limited judicial role in supervising the exercise of the Lord Chancellor ’s statutory power to remove county court judges .", "....", "CARDINAL ) It does not necessarily follow that the present arrangements are not LAW . On the face of it , the passages from PERSON ( § § DATE and CARDINAL above ) , PERSON ( § CARDINAL ) and ORG and Fell ( § MONEY ) are of significant assistance to the Respondent in the present case . PERSON ( a recent case presided over by ORG ... ) is of particular assistance to the Respondent , albeit that it is not a decision of ORG . It is right to note , however , that the passage quote above from ORG and Fell has been construed narrowly by ORG . See , in particular , the illuminating discussion of this passage by Lord PERSON at page CARDINAL of PERSON .", "CARDINAL ) The Respondent ’s best defence to the Appellant ’s best point on DATE is that , in practice , removal almost never occurs and when it does it poses no threat to the independence and impartiality of the judiciary .", "CARDINAL ) It is submitted that some caution is needed when seeking to place weight on the absence of many actual cases of removal of ORG judges ... in support of a conclusion as to their independence and impartiality in Convention terms . In theory , the need never to invoke the power to dismiss is just as consistent with a judiciary wholly bent to the will of the Lord Chancellor as it is with a fully independent and impartial judiciary with which no Lord Chancellor dares to interfere .", "CARDINAL ) It is not , however , suggested that the former is the case . Indeed , to hold such a view might well cogently be said to display just the sort of “ neurotic distrust ” which the ORG cautioned against in Spear .", "....", "CARDINAL ) It is submitted that the answer to the question of whether the county court judges in the present case were not LAW compliant is not obvious . The case is more borderline than GPE , PERSON or PERSON in one direction and than PERSON and PERSON in the other .", "CARDINAL ) On balance , it is respectfully submitted that the combination of", "a ) the apparent long tradition of invoking the removal power in only the most unusual circumstances , and", "b ) the availability of a relatively intense judicial review is sufficient to render the present system LAW , albeit , as emphasized above , a more obviously LAW regime is available and desirable . ”" ]

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[ "ORG The applicant is a citizen of GPE , now residing in GPE , GPE . He entered GPE in DATE and was arrested in GPE ( Lower Austria ) on DATE on suspicion of fraud and misappropriation under a warrant issued by ORG ( PERSON ) . On DATE he was taken to GPE where , on DATE , ORG ( PERSON für PERSON ) remanded him in custody . On DATE he was transferred from GPE to ORG ( Landesgerichtliches Gefangenenhaus ) .", "ORG The applicant was interrogated by police officers on DATE , DATE and DATE . During the questioning on CARDINAL DATE interpretation was provided by a prisoner who , however , had only a limited knowledge of LANGUAGE . The person who interpreted on DATE , whilst not a registered interpreter , was someone regularly asked to assist at police interviews when no registered interpreter was available . It can not be established from the evidence adduced whether the person who provided interpretation on DATE was a registered interpreter or not . In accordance with the usual practice the applicant received neither copies nor written translations of the records of these interrogations .", "ORG Registered interpreters were present during the pre - trial interrogations by several investigating judges on DATE , DATE , DATE and DATE . The procedure followed was that the investigating judge put a question or a series of questions in NORP to the applicant through the interpreter and the applicant replied in LANGUAGE through the interpreter . The judge then had the typist record a summary of the applicant ’s answers which he considered relevant . The extent to which the recorded version was interpreted for the applicant at the end of the interrogation was disputed . On CARDINAL occasions the applicant refused to sign the record on the ground that it was written in a language he could not understand .", "ORG On the applicant ’s motion granted by the competent court , an official legal aid defence counsel was appointed for him by ORG . This lawyer set out in writing the applicant ’s objections to his detention on remand . However , the applicant wrote to the court on DATE complaining that the lawyer did not speak LANGUAGE sufficiently well , and the lawyer asked to be relieved of his duties as counsel for the same reason . In view of this situation the remand review hearing of DATE was adjourned at the applicant ’s request . ORG ( Ratskammer ) instructed the investigating judge , inter alia , to take steps for the appointment of another lawyer with sufficient command of LANGUAGE . As a result Dr PERSON , a lawyer who is also a registered interpreter for the LANGUAGE language , was nominated legal aid defence counsel on DATE .", "Dr NORP visited the applicant for the first time on DATE for TIME . On DATE he also appeared for the applicant at the adjourned remand review hearing before ORG . Immediately thereafter he lodged a complaint on the applicant ’s behalf against ORG decision to prolong the detention on remand . Subsequent visits by PERSON were made on DATE and DATE and DATE and CARDINAL DATE .", "ORG On DATE the indictment , a document of CARDINAL pages , was served on the applicant at a session before ORG . The applicant was charged with aggravated fraud ( sections CARDINAL and CARDINAL § CARDINAL of LAW ) on CARDINAL counts and misappropriation ( section QUANTITY of LAW ) on CARDINAL count . The alleged offences consisted essentially of failure to pay certain bills , notably rent and telephone invoices . A registered interpreter was present , but the extent to which the indictment was interpreted is in dispute between the parties . The session lasted TIME . The defence counsel did not appear and was eventually contacted by telephone , when he informed the applicant that he would not attend the session since this would serve no useful purpose and advised against raising any objection to the indictment .", "The minutes of this session record that the defendant was given notice of the indictment , that he asked for it also to be served upon his defence counsel , and that he entered an objection ( PERSON ) to it . His grounds for the objection included the following . He had already written CARDINAL letters presenting the evidence sought . Despite his repeated requests he had never received any of the telephone invoices he was accused of not having paid . He had also demanded to be confronted with incriminatory evidence but had never obtained this evidence for review . With the assistance of the judge he formulated a general objection that the indictment was defective and accordingly requested its review . According to a note appended to the minutes , PERSON refused to confirm by his signature that he had been given notice of the indictment for the reason that he did not as a matter of principle sign documents drafted in NORP .", "Neither on this occasion , nor later , was PERSON provided with a written translation of the indictment .", "ORG Upon return to his cell , the applicant wrote the following letter to his defence counsel :", "\" As you know I received the indictment DATE . Perhaps you would be kind enough to explain to me why you arranged to be telephoned instead of being present to give me advice ? How in [ deleted expletive ] name can you advise me before ever seeing that which you are to advise about ? The young doctor ? ? told me I had to make up my mind instantly concerning whether or not to appeal . He typed something out and when I made a correction by inking out an obvious mistake , the ? ? went [ deleted expletives ] . ‘ You can not alter what I write for you to sign , it is ORG . I told him to do the then appropriate thing with the paper and he ordered the interpreter ... to sign it .", "... I wish you to give me legal advice concerning the indictment :", "Are there grounds for appeal ?", "What are the grounds available to appeal against an indictment ?", "Can I call witnesses on my behalf and compel them to attend the trial ?", "Will you assist me in a legal manner ?", "It certainly appears as though you believe the decision on my guilt is pre - ordained otherwise you would not advise others that I will be found guilty without ever seeing the evidence , discussing it with me or ever seeing the indictment . Of course , you have advised me I would be freed on the same basis ... \"", "ORG DATE , on DATE , PERSON came to visit the applicant in prison and informed him that he would withdraw the objection to the indictment since it was bound to be rejected . This he did by a letter of DATE .", "PERSON paid further pre - trial visits to the applicant on DATE , DATE and DATE . The applicant was absent from his cell for TIME , TIME respectively .", "ORG On DATE the applicant wrote to PERSON in the following terms :", "\" ... I shall be writing PERSON [ the judge presiding over ORG competent to hear the case ] asking him to please help me to obtain EFFECTIVE legal counsel , in the event I do not see the evidence and file prior to DATE , which is DATE before the trial ! ... \"", "The applicant wrote another letter on DATE instructing PERSON to ensure the attendance at the trial of all witnesses against him and to summons CARDINAL defence witnesses to appear .", "The same day PERSON filed a written motion for the hearing of CARDINAL witnesses , including PERSON , together with a motion for some of them to be enjoined to bring certain documents . He later filed additions to this evidentiary motion by telephone . In particular , he asked on DATE for PERSON to be summonsed to testify at the trial .", "ORG On DATE , DATE , DATE ( or DATE ) and DATE the applicant sent letters to the presiding judge .", "In his letter of DATE the applicant asked for trial in camera because of fears concerning his personal security . The contents of this letter were also explained over the telephone to the presiding judge by the prison legal officer , PERSON In view of these fears a detective officer in plain clothes was eventually asked to attend the trial .", "The applicant ’s letters of CARDINAL , DATE ( or DATE ) and DATE to the presiding judge , which were carried by hand from ORG to ORG in the usual way , are now missing from the court file , and not indexed there . The Government are unable to give an explanation therefor .", "The contents of these letters were a source of dispute . The applicant asserted that their essentials were as summarised in subsequent letters he addressed to the presiding judge after the trial ( see paragraph CARDINAL below ) . According to the Government , on the other hand , as far as the presiding judge remembers the missing letters contained repetitions of matters already on the file . The presiding judge , so the Government stated , asked the applicant ’s counsel to read the letters and to discuss their contents with his client ; the judge invited counsel to raise the arguments made in the letters at the trial and to introduce motions accordingly .", "ORG The applicant wrote in the following terms on DATE to the prison legal officer , PERSON", "\" PERSON ,", "DATE I have an answer to my last note ? ? There is DATE until the trial which is scheduled on DATE . I have not had an answer to any requests sent [ to ] PERSON . Does he ignore me because I write only in LANGUAGE ? Does he also ignore the NORP law in the same way as the PERSON [ investigating judge ] ? I have not yet seen the evidence irrespective of the fact I have an assigned lawyer . Having a lawyer that does nothing does not satisfy justice .", "You people must be crazy to think you can carry on a system of justice in such an oppressive manner .", "What do I have to do after DATE to get the consideration I deserve ? Must I hurt myself ? Certainly you understand what is going on and you can easily telephone PERSON and inquire .", "I will not write you or PERSON again . If I do not have a satisfactory reply in accord with NORP law and ORG , Article CARDINAL ( article CARDINAL ) by DATE , I shall take drastic steps ! I have had enough of this charade . \"", "ORG As confirmed by the prison records , a letter from the applicant to the public prosecutor was transmitted in the usual way on DATE . However , the prosecutor ’s office has no note of ever receiving the letter . According to the applicant , in it he requested the prosecutor ’s assistance in obtaining defence evidence and was critical of the services of PERSON .", "ORG On DATE , DATE before the trial opened , the applicant was visited by CARDINAL officers of ORG in GPE . According to a memorandum subsequently drawn up by CARDINAL of them for the files of the ORG the applicant \" complained that his public defender , PERSON , had not discussed his defence with him yet and that he had had no chance to review the court file himself . ( PERSON had told me over the phone DATE that he had spent a total of TIME discussing the defence with PERSON and that he would see him again shortly before the trial ) \" .", "ORG After the trial the applicant wrote a number of letters to the presiding judge .", "In CARDINAL , dated CARDINAL DATE , he said :", "\" Please note that on DATE , I wrote you requesting access to the records and informing you that PERSON had not yet prepared me nor studied the records of the ORG . I requested you to discharge PERSON if his assignment was the basis to refuse me access to the records . On DATE , I wrote you again to inform you that PERSON had not prepared me for the trial nor provided or translated all the relevant witness statements . You ignored both letters and further did not answer a letter requesting permission to present certain documents in LANGUAGE . I realise surely that it was the duty for PERSON to take up these matters with you but he refused to do anything . \"", "In a subsequent letter dated DATE he summarised the contents of his letters of CARDINAL , DATE and DATE and complained about not having received any response . This letter , together with a NORP translation prepared by the prison legal officer , was forwarded to the presiding judge on DATE There , the applicant stated the \" important elements \" of his previous letters as follows :", "\" ...", "On DATE , I wrote you a letter to request an inspection of the court records ( PERSON ) and informed you therein that I had little knowledge of any of the alleged evidence , documentary or testimonial . I specifically asked you to discharge PERSON if his representation of me was to be a basis of denying me direct access to the evidence . I stated that it was more important for me to know of the basis of the allegations ( so as to prepare a defence ) than to be represented by a lawyer . I presume that you did not give me access to the evidence requested nor did you discharge PERSON because you did not understand my letter . ( To this date , I do not have knowledge of the majority of the evidence ) .", "On DATE I also requested permission to present documentary evidence in LANGUAGE , which request I presume was never answered because it was not understood .", "On DATE I wrote to inform you that my appointed lawyer , PERSON , had still not prepared me for the trial on DATE nor given me access [ to ] or knowledge of the prosecution evidence . ( The situation remained the same as reported in my letter of DATE except that at TIME , PERSON came to inform me that no further preparation was necessary since ‘ ORG would happen to me on DATE ) .", "... \"", "ORG The trial before ORG , sitting as a court with lay assessors ( ORG ) , took place on DATE . It was attended by CARDINAL officers of ORG in GPE as observers but apparently by no members of the public . ORG was composed of CARDINAL professional judges and CARDINAL lay assessors .", "It is the applicant ’s contention , as corroborated by the GPE consular observers , that the indictment read out at the beginning of the trial was not interpreted into LANGUAGE . However , according to the consular observers , the applicant , when asked , said that he understood the charges and he and his counsel waived interpretation of the indictment .", "After the indictment was read out , PERSON was invited to make a statement and was questioned by the presiding judge pursuant to section CARDINAL of the Code of Criminal Procedure ( Strafprozessordnung ) ( see paragraph CARDINAL below ) . The record shows that he stated , among other things , that he was not guilty of any criminal charge .", "ORG About halfway through the trial , there was apparently a dispute between the applicant and his defence counsel as to whether requests should be made for the hearing of further witnesses including a lawyer , PERSON , who had been acting as the applicant ’s business agent responsible for settling his debts and whom the applicant suspected of double - representation . PERSON , considering this suspicion as an attack against the reputation of NORP lawyers in general , thereupon asked the court to be discharged from his functions as the applicant ’s defence counsel . However , the court rejected this request . PERSON accordingly continued to represent the applicant until the end of the trial . There is no mention in the record of PERSON having asked for replacement of his legal aid defence counsel .", "In his concluding address to the court PERSON asked for a \" lenient judgment \" ( \" mildes PERSON \" ) for PERSON .", "PERSON and PERSON , CARDINAL prosecution witnesses summonsed to attend at the request of the defence ( see paragraph CARDINAL above ) , did not appear at the trial . With the consent of the defence and the prosecution , the pre - trial deposition of PERSON was read out to the court pursuant to section CARDINAL § CARDINAL of LAW . The applicant had not been provided with an LANGUAGE translation of this deposition . The applicant himself furnished evidence as to the payment of his debts to PERSON . A third witness , PERSON , did not appear because she had not been called by either the prosecution or the defence . Evidence on matters to which she could have spoken was taken from other witnesses who did testify .", "The court refused a motion by both the prosecution and the defence to institute investigations into Mr PERSON ’s bank account in GPE , as well as a motion , eventually submitted by defence counsel on PERSON insistence , for the lawyer , PERSON , to be called .", "ORG A registered interpreter was present , sitting next to the applicant ’s defence counsel to the left of the judges’ bench , while the applicant was sitting at a distance of CARDINAL to QUANTITY from his defence counsel facing the bench .", "The record of the trial states that an interpreter attended but , in accordance with the usual practice , does not specify which of the statements made during the trial were interpreted or the extent to which this was done . It is uncontested that questions put to prosecution witnesses by the court and the public prosecutor were not interpreted , whereas the extent to which witnesses’ answers and other statements were interpreted is a subject of dispute . In accordance with the usual practice the interpretation provided was not simultaneous but consecutive and summarising .", "According to the record of the trial , no formal objection was raised by the defence at the time with respect to the extent of the interpretation provided .", "The minutes , which are CARDINAL pages long , record the applicant ’s opening declaration as to the various charges , the testimony of QUANTITY persons heard as witnesses , the motion made by the prosecution and the defence to institute investigations into the applicant ’s bank account in GPE , the motion made by the defence to hear CARDINAL more witnesses and to inquire through ORG whether the applicant had previously been convicted in GPE , GPE and GPE . According to the record a number of documents were read out , including the pre - trial deposition of PERSON . Finally , TIME record the final submissions by the prosecution and the defence , the court ’s decision to refuse to take further evidence and the declaration made by the prosecution reserving its right to lodge a plea of nullity in respect of that decision . They conclude by stating that the court gave judgment , together with its reasons , and indicated possible means of appeal . The last sentence reads : \" The parties made no comment . \"", "Mr PERSON was found guilty of aggravated fraud and misappropriation and sentenced to CARDINAL months’ imprisonment , inter alia on charges involving debts owed to PERSON , PERSON and PERSON . After recounting the facts found , the judgment records the defendant ’s declaration that he was not guilty of any criminal offence . According to the judgment , he essentially admitted having incurred the debts for rent and telephone covered by the first CARDINAL counts in the indictment but asserted that he had been willing and able to pay these debts . The court held that this defence was contradicted by the evidence before it . With regard to PERSON the court referred to the fact that the evidence adduced by the applicant himself showed that he had only partly settled his debt to her . He was also ordered to pay ORG CARDINAL to CARDINAL private parties ( ORG ) who had appeared as witnesses for the prosecution and who had claimed compensation ( section CARDINAL § CARDINAL of LAW ) . The applicant and the consular observers are agreed that only the verdict and the sentence , but not the reasons , were interpreted into LANGUAGE . The Government , on the other hand , concur with the finding of ORG ( see paragraph CARDINAL below ) that the judgment , including the reasons , was orally translated in all essential parts .", "The written judgment was served upon the defence counsel , PERSON , on DATE . The following day , PERSON visited the applicant in prison , but declined to translate the whole text of the judgment for him . The applicant received a copy thereof ( in NORP ) on DATE but was not provided with a written translation .", "ORG On various dates between DATE and DATE , PERSON was served with invoices in respect of interpretation charges incurred during the course of the pre - trial investigation . However , following the intervention of ORG , the NORP authorities eventually confirmed in DATE that he was not liable for interpretation costs .", "ORG Subsequent to the trial , on DATE , the applicant wrote a letter to the prison legal officer asking him to convey to the presiding judge his request to have a new defence counsel appointed , as he did \" not get along with PERSON \" , and also asking for advice what to do in order to obtain a new lawyer . This letter was forwarded to the competent department of ORG on DATE where it was received DATE . The applicant also wrote to PERSON informing him that he had asked for the appointment of another defence counsel . On DATE he wrote in similar terms to the President of ORG .", "ORG In addition he sent a number of letters to the presiding judge ( dated DATE and DATE and CARDINAL and CARDINAL DATE ) . In the letter of DATE he said :", "\" It is now DATE since your judgment and I have not a copy nor has it been translated to me which is required by NORP law and international law as I understand it . It would be proper for me to know what I have been tentatively convicted of so that I may write to the GPE and obtain the evidence ( which PERSON did not do ) for the appeal to GPE .", "Therefore , may I please have a copy of the judgment ( ORG ) or in the alternative a translation of the ORG .", "For DATE I have been prevented from defending myself through the assignment of an attorney who did absolutely nothing to help me , but actually participated against me in the prosecution . \"", "The letter of CARDINAL May included the following :", "\" It is now DATE since I appeared before your ORG and you pronounced judgment ( ORG ) and I still do not know what you said or the legal basis . The translator ( PERSON ) only stated that I was found guilty and sentenced to DATE in prison . I have no knowledge beyond that and clearly I do not expect PERSON to do more than he has in the past ; absolutely nothing . Unfortunately , I am being additionally punished due to my lack of understanding of the NORP language . The appointment of PERSON to defend me has been consistently utilised as the ‘ ORG basis to deny me rights available to any NORP or to me if I understood NORP . DATE is more than adequate time for me to be informed of what you said in ORG or pronounced in the written ‘ GPE .", "I have advised you that I wish to appeal the ‘ GPE with a ‘ Nichtigkeitsbeschwerde’ [ plea of nullity ] to ORG of GPE in accord with applicable laws . CARDINAL of the grounds of the ‘ Nichtigkeitsbeschwerde’ is that I was deprived of effective assistance of a defender in that PERSON did absolutely nothing to prepare me for the trial and refused to obtain any evidence on my behalf . On the basis that PERSON has failed to perform his explicit obligation to defend me correctly and that such is a ground of the appeal , it is therefore impossible for PERSON to represent me in the prosecution of the ‘ Nichtigkeitsbeschwerde’ . On this account , I have written to PERSON , President of the Rechtsanwaltskammer [ ORG ] , to request appointment of an LANGUAGE - speaking lawyer .", "[ PERSON reproduced in paragraph CARDINAL above . ]", "Because I am in the difficult position of not being effectively represented and not understanding the language , I can only attempt to do what I feel is correct legally and ethically . I am hereby informing you of the grounds for the appeal , which grounds are substantial , and which grounds should be properly presented by an experienced NORP Attorney . ( To date , I have not been visited by an Attorney for the purpose of preparing a ‘ Nichtigkeitsbeschwerde’ . ) If I am not presenting the grounds correctly , it is only due to lack of legal advice . \"", "The letter of CARDINAL May ( passages of which are set out at paragraph CARDINAL above ) was accompanied by a translation into NORP . In it the applicant reiterated that \" on DATE May I wrote to you to inform you of some of the grounds of the PERSON as well as the grounds for appointment of a new lawyer \" .", "As before , the applicant received no response from the presiding judge .", "ORG On DATE the applicant was once more visited in prison by PERSON . At the applicant ’s request this meeting was attended by the prison legal officer . The applicant repeated his request to have another defence counsel appointed .", "By letter of CARDINAL DATE PERSON asked ORG to be discharged of his duties as defence counsel . On DATE ORG appointed PERSON as new defence counsel for the applicant . PERSON was notified thereof on DATE", "ORG On DATE a partner of PERSON came to see PERSON in his office and gave him a draft appeal ( PERSON ) and plea of nullity ( PERSON ) prepared by PERSON ( consisting of CARDINAL pages ) and also some copies from the court file . On DATE Dr PERSON visited the applicant in prison . The statement setting out the plea of nullity and the appeal ( against sentence and the compensation order ) was then drawn up and filed on DATE , DATE on which the time - limit for filing expired . PERSON also prepared a translation of the judgment for the applicant .", "ORG The plea of nullity was essentially based on the following grounds :", "( a ) ( under section CARDINAL ORG CARDINAL.CARDINALa of LAW - see paragraph CARDINAL below ) that the applicant was not adequately represented by counsel during the proceedings and in particular during the trial ;", "( b ) ( under LAW § CARDINAL.CARDINAL , taken together with sections CARDINAL , CARDINAL and CARDINAL , of the Code - ibid . ) that the interpretation during the trial was insufficient , and in particular that neither the indictment nor the written depositions nor the oral testimony of certain witnesses nor the questions put to witnesses by the presiding judge and the public prosecutor were interpreted into LANGUAGE ;", "( c ) ( under LAW § CARDINAL.CARDINAL , taken together with LAW . ) that save for its operative part the judgment was neither interpreted on the spot nor translated thereafter ;", "( d ) ( under section CARDINAL § CARDINAL of the Code - ibid . ) that the trial court had not granted either the prosecution or the defence motions to have investigations carried out with the defendant ’s bankers or the defence motions for the hearing of evidence from CARDINAL witnesses ;", "( e ) ( under section CARDINAL § CARDINAL - ibid . ) that the judgment was not sufficiently reasoned ;", "( f ) ( under section CARDINAL § CARDINAL.CARDINALa and b - ibid . ) that the trial court had incorrectly interpreted certain facts which established lack of fraudulent intent .", "ORG With regard to the factual allegations concerning the scope of interpretation during the trial , ORG ( Oberster Gerichtshof ) conducted an inquiry in accordance with section PERSON of LAW ( see paragraph CARDINAL below ) . The presiding judge of ORG was questioned by the reporting judge of ORG over the telephone . A note on this conversation , which was placed in ORG file on DATE , reads as follows ( translation into LANGUAGE provided by the Government ) :", "\" The presiding judge , ORG Justice PERSON , replied as follows to an inquiry by telephone :", "Contrary to the allegations made in the plea of nullity , all essential points of the indictment , of the ORG depositions , of the contents of the documents read out in court as well as of the judgment , including its reasoning , were translated by the interpreter who had been summoned and by counsel for the defence , Barrister PERSON ( who is a qualified NORP interpreter ) , at the trial which was attended by CARDINAL members of ORG . The defendant was also permitted to comment on the charges and on each piece of evidence without any time - limit , as well as to put questions to the witnesses . \"", "Neither the applicant nor his counsel was given notice of this inquiry or advised of its results .", "ORG On DATE , after having obtained the view of the Procurator General ( ORG ) , ORG , sitting in chambers ( see paragraph CARDINAL below ) , rejected the plea of nullity , essentially on the following grounds .", "As to the complaint that the applicant had not been adequately represented by counsel during the trial , ORG found that ORG was only under a duty to appoint a defence counsel and to invite him to attend the trial as well as any other proceedings in which the defendant was allowed to participate . It was not , however , for ORG to supervise the activities of the defence counsel , who was not subject to the control of the ORG but to the disciplinary authority of the appropriate bar association . Accordingly , no ground for nullity could be derived from any insufficient performance by the defence counsel of his duties .", "With respect to the interpretation during the trial , ORG observed that ORG had not only appointed an interpreter to assist during the trial but that it had also appointed , at the applicant ’s request , a defence counsel who was at the same time an NORP interpreter and with whom the applicant could communicate in his mother tongue . As a matter of law , neither an incomplete translation nor a failure to appoint an interpreter as such constituted a ground for nullity . They could at best be a source of challenge , under section CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) , if a corresponding motion had been denied at the trial . Besides ( i m übrigen ) , the inquiry carried out by ORG pursuant to section PERSON of the Code of Criminal Procedure had shown that , contrary to the allegations in the applicant ’s plea of nullity , all essential parts of the indictment , of the testimony of witnesses , of the documents read out during the trial and also of the judgment , including its reasons , had been interpreted by the registered interpreter . Furthermore , the applicant had had the opportunity to comment on the charges and the evidence without any time restriction and also to put questions to witnesses .", "ORG The date of the public hearing for the appeal against sentence and the compensation order was notified to Mr PERSON pursuant to section CARDINAL § CARDINAL of LAW and his counsel , PERSON , was summoned to attend .", "On DATE Mr PERSON lodged an application for his personal attendance before ORG , arguing , inter alia , that the determination of the sentence necessitated an assessment of his personality and that this required his presence . Moreover , the file before ORG included articles from the DATE newspaper \" PERSON \" which were prejudicial to him and might adversely influence ORG . The articles , which had been published on CARDINAL , DATE and DATE and which described him as an NORP espionage agent dangerous to GPE , had also been in the file of the trial court . Lastly , he submitted , as his appeal concerned also the civil - law aspects of the judgment , it would be unfair if the private parties to whom he had to pay compensation could appear before ORG but not himself .", "This application was rejected by decision of ORG on DATE on the ground that no concrete indications suggesting a need for the accused ’s personal attendance at the hearing on the appeal lodged solely for his benefit were apparent from the court files or from his application . If he harboured the belief that his personal presence would enable him to argue that the criminal proceedings had come about essentially as a result of a chain of unfortunate circumstances and misunderstandings , above all of a linguistic nature , he was unaware of the rule that the question of guilt can no longer be canvassed in the appeal proceedings . Moreover , all further circumstances set forth in his application could be put forward by his lawyer at the hearing . ORG ruling was served on PERSON counsel .", "ORG The grounds for appeal against sentence were essentially that the trial court had failed to take into account a number of mitigating considerations , such as Mr PERSON ’s lack of criminal record , his maintenance obligations to his wife and child , his error in not realising the criminal character of his conduct and the fact that the monetary qualifying limit for aggravated fraud ( ATS MONEY ) had been exceeded by only a small amount .", "The appeal was dismissed by ORG on DATE after a hearing at which the applicant was represented by defence counsel . ORG considered that the sentence imposed by ORG was adequate and that the relative weight of mitigating and aggravating circumstances had been correctly assessed . The adjudication of compensation to CARDINAL private parties had been in accordance with the law and therefore there was no reason to refer the decision on this issue to the civil courts as requested by the applicant . ORG judgment also lists those present at the appeal hearing and there is no indication that the private parties whose compensation claims ORG had upheld were present or represented at that hearing .", "ORG The applicant was released from prison on DATE and subsequently detained with a view to his deportation to GPE . He was eventually deported in DATE .", "ORG Section CARDINAL of LAW provides as follows :", "\" The investigating judge shall have translated by a registered interpreter any documents drawn up in a language other than the one used in court ( nicht gerichtsüblich ) if they are relevant to the investigation and have them put in the file together with the translation . \"", "Under the terms of section CARDINAL of the Code :", "\" Where a witness does not have knowledge of the language used in court ( Gerichtssprache ) , an interpreter shall be called in unless both the investigating judge and the court clerk have a command of the foreign language . In the official record of the hearing or an annex thereto the depositions of the witness shall be recorded in that language only where it is necessary to quote the actual expressions used by the person examined ( section LAW ) . \"", "According to section CARDINAL § CARDINAL , such a necessity exists if the expressions used are important for judging the matter or if it is to be expected that the official record will be read out at the trial .", "By virtue of section CARDINAL § CARDINAL of the Code , section CARDINAL also governs , mutatis mutandis , interrogations of a person charged with an offence ( Beschuldigter ) if that person does not have knowledge of the language used in court .", "ORG It follows from the context of the above provisions that they relate to the pre - trial investigations conducted by the investigating judge ( PERSON ) . However , by virtue of section CARDINAL § CARDINAL of the Code , the rules to be observed by the investigating judge shall also be applied by the presiding judge when examining witnesses or experts at the trial . There is no express provision concerning the rules to be followed for the examination of the accused at the trial if he does not have knowledge of the language used in court , but it appears that in practice the rules governing the examination of witnesses are applied by analogy .", "ORG The qualifications of registered interpreters ( allgemein beeidete gerichtliche PERSON ) are specified in ORG and LAW DATE ( Bundesgesetz über den allgemein beeideten gerichtlichen PERSON , PERSON ORG . CARDINAL ) . According to section LAW , the provisions regarding experts and requiring , inter alia , special knowledge ( PERSON ) and trustworthiness ( PERSON ) ( cf . section QUANTITY § CARDINAL ( a ) and ( e ) ) are also applicable to interpreters .", "ORG Section CARDINAL § CARDINAL of the Code of Criminal Procedure provides that in all criminal cases the accused has the right to have a defence lawyer ( Verteidiger ) whom he may choose among the persons included in a list kept by ORG .", "ORG Under certain conditions an official defence lawyer ( beigegebener PERSON ) must be assigned to the accused . He may either be a legal aid lawyer to be paid by the ORG or an ex officio lawyer to be appointed in cases of necessary representation at the expense of the accused . The procedure to be followed is set out in CARDINAL of the LAW , which , in so far as relevant , reads :", "\" ( CARDINAL ) If the person charged with a criminal offence ( the accused ) is unable ... to bear the costs of his defence , the court shall at [ his ] request decide that he will be given a defence lawyer whose costs [ he ] will not have to bear if and in so far as this is necessary in the interests of justice , in particular the interests of an appropriate defence . ...", "( CARDINAL ) If , for a trial before an assize court or a court with lay assessors , the accused or his legal representative has not chosen a defence lawyer , and if no defence lawyer has been assigned under paragraph CARDINAL above , the court shall of its own motion appoint a defence lawyer whose fees will have to be borne by the accused unless the conditions for appointing a defence lawyer under paragraph CARDINAL above are satisfied . ... \"", "Section CARDINAL § CARDINAL further provides :", "\" If the court has decided to assign a defence lawyer , it shall notify ORG competent for the area in which the court is situated so that this ORG may appoint a practising lawyer ( PERSON ) as defence lawyer . \"", "ORG The replacement of a defence lawyer in the course of the proceedings is governed by LAW , which reads :", "\" The person charged with a criminal offence may at any time transfer the mandate of a freely chosen defence lawyer to another defence lawyer . Likewise , the mandate of an officially assigned defence lawyer shall be terminated as soon as the person charged designates another defence lawyer . However , in such cases the change in the person of the defence lawyer must not lead to any delay in the proceedings . \"", "LAW ( ORG , PERSON . Law Gazette No . CARDINAL/CARDINAL as amended ) now provides that , in certain cases including conflict of interest or bias , the officially assigned defence lawyer shall be replaced by another defence lawyer ( section CARDINAL § CARDINAL in the version of PERSON No . DATE ) . This provision did not exist at the relevant time . However , in practice an officially assigned defence lawyer could be replaced by ORG if this seemed appropriate .", "ORG Section CARDINAL § CARDINAL of LAW requires a practising lawyer to perform his mandate in accordance with the law and to defend the rights of the party he is representing attentively , in good faith and conscientiously ( \" PERSON , PERSON \" ) . Under section CARDINAL § CARDINAL , he is obliged to carry out his mandate as long as it has not been terminated and he is responsible for failure to do so . However , according to established case - law ( ORG , PERSON , DATE , no . CARDINAL ) he is not subject to control by the court as to whether he has performed his tasks correctly and reasonably ( \" richtig und zweckmässig \" ) . On the other hand the Government pointed out at the public hearing on DATE that the ORG has the status of constitutional law in GPE , with the consequence that the courts are under a duty to secure compliance with LAW ( c ) ( article DATE ) which guarantees a defendant ’s right to legal assistance .", "There is no provision requiring the appointment of a defence lawyer with a knowledge of the language of the accused if the accused does not understand or speak the language used in court , but in practice , if requested by the defendant and if possible , a lawyer with sufficient command of the defendant ’s language will be nominated .", "Inspection of the court files by the defendant or by his defence counsel is governed by LAW , which provides :", "\" The investigating judge shall permit the defence lawyer on request to inspect the court files , except the records of deliberations , on the premises of the court and to make copies thereof ; alternatively the investigating judge may also deliver photocopies to the lawyer . Where the defendant is not legally represented , he himself is entitled to these rights of defence counsel , and a defendant who is in detention may be permitted to inspect the files on the premises of the detention centre or prison . ... \"", "ORG Section CARDINAL of the Code of Criminal Procedure enables the defendant to make an initial statement . Immediately after the opening of the trial the defendant is questioned by the presiding judge as to the contents of the indictment . If the defendant pleads not guilty to the indictment , the presiding judge must explain to him that he is entitled to counter the charges with a coherent statement of the facts and to submit his observations with regard to each individual item of evidence . The defendant is not obliged to answer any questions put by the judge .", "ORG Section CARDINAL of the Code of Criminal Procedure deals with the keeping of records of the trial :", "\" ( CARDINAL ) On pain of nullity a record shall be kept of the trial which shall be signed by the president and by the clerk of the court . It should contain the names of the members of the court present , of the parties and of their representatives , document all essential formalities of the proceedings , in particular set out what witnesses and experts were heard and which parts of the files were read out , whether the witnesses and experts were sworn and for what reason they were sworn , and finally all motions submitted by the parties and the decisions taken by the president or the court thereon . The parties are free to demand the setting down of specific points in the record in order to preserve their rights .", "( CARDINAL ) Where the actual words used are of importance , the president shall at the request of a party at once order individual passages to be read out .", "( CARDINAL ) The answers of the defendant and the depositions of the witnesses or experts shall only be mentioned if they contain deviations from , alterations of or additions to the statements set down in the files or if the witnesses or experts are heard for the first time at the public session .", "( CARDINAL ) If the president or court thinks fit , they can order all depositions and pleadings to be taken down in shorthand ; this shall always be ordered where a party requests it in good time and deposits the costs in advance . The shorthand notes shall , however , be transcribed into ordinary script within TIME , shall be submitted for verification by the president or a judge delegated by him , and shall be attached to the record .", "( CARDINAL ) The parties are free to inspect the finished record and its enclosures , and to make copies thereof . \"", "ORG A plea of nullity before ORG can only be based on the specific grounds enumerated in section CARDINAL § CARDINAL of LAW . Thus a plea of nullity may be lodged", "\" CARDINAL . if the defendant was not represented throughout the trial hearing by counsel although such representation was obligatory ;", "...", "where during the trial hearing there has been a breach of , or a failure to comply with , a provision in respect of which it is expressly provided that such breach or failure shall entail nullity ;", "...", "if no decision has been taken at the trial on a motion of the person lodging the plea of nullity or if an interim decision rejecting a motion or objection of the person lodging the plea of nullity has been taken in a manner which disregarded or incorrectly applied legal provisions or procedural principles whose observance is necessary for securing a procedure in conformity with essential requirements of the prosecution and of the defence ;", "if the judgment of the trial court ... gives no or manifestly insufficient reasons for its decision ;", "...", "if the judgment was rendered in breach or misapplication of a statute in relation to the issue", "( a ) whether the act with which the defendant is charged amounts to a criminal offence within the jurisdiction of the courts ;", "( b ) whether there are circumstances which exclude punishment or prosecution in respect of the act ... ;", "( c ) ... \"", "Examples of the kind of ground referred to in paragraph CARDINAL are failure to recite the indictment at the commencement of the trial ( as required by section CARDINAL of the Code of Criminal Procedure ) , failure to bring to the knowledge of the defendant the testimony of witnesses heard in his absence ( as required by CARDINAL of the Code ) , and failure to state in the judgment the grounds supporting any finding of guilt ( as required by CARDINAL of the Code ) . However the failure to make such recitals in a language which a non - NORP speaking defendant can understand does not constitute a fatal error requiring a verdict of guilty to be nullified ( see the judgment of ORG in the present case - paragraph CARDINAL above ) .", "ORG According to section CARDINALc of LAW , ORG , after having obtained the view of the Procurator General , shall deliberate in private if the Procurator General or the reporting judge has proposed the application of , inter alia , section ORG or f of the Code . Section CARDINALd provides for , inter alia , rejection of a plea of nullity by a decision in private if the ORG unanimously considers that pleas based on sub - paragraphs CARDINAL to CARDINAL of section CARDINAL § CARDINAL are manifestly ill - founded .", "By virtue of section ORG , \" when deliberating in private , may ... order that inquiries be made as to facts relating to alleged procedural defects ( section CARDINAL § DATE ) \" .", "Where ORG does not render its decision in private , an unrepresented defendant in custody has to be informed of the date set down for the hearing and advised that he may only appear through a lawyer ( section CARDINAL § CARDINAL ) . In the case of a represented defendant only the defence lawyer is informed of the date ( section QUANTITY ) . Under the terms of section CARDINAL § CARDINAL the defendant or his lawyer is always entitled to the last word ( LOC ) at the hearing .", "ORG In principle ORG proceedings in respect of an appeal against sentence are public ( see section CARDINAL § § CARDINAL and CARDINAL of the Code of Criminal Procedure ) . The question of guilt or innocence may not be canvassed in such appeal proceedings . When the appeal has been lodged solely by the defendant , ORG has no power to impose a severer sentence than that passed at first instance ( section CARDINAL § CARDINAL of the Code ) .", "ORG The defendant ’s presence at the public hearing of his appeal is governed by LAW , second sentence , which at the relevant time provided :", "\" As regards the fixing of a day for the public hearing and the procedure , sections CARDINAL and CARDINAL are applicable mutatis mutandis , provided that the defendant not in custody shall always be summoned and that the defendant in custody may be caused to be brought before the court . \"", "Section CARDINAL § CARDINAL was amended in DATE and DATE . The second sentence now provides that the defendant in custody shall be brought before the court if he so requests in his appeal or in his counter - statement or if his presence appears to be necessary in the interests of the proper administration of justice or for other reasons .", "Section CARDINAL § CARDINAL , last sentence , further specifies that \" if the appeal is directed against the adjudication of civil claims , the private party concerned shall also be summoned \" ( translation from NORP ) ." ]

[ "6" ]

[ "6-1" ]

[]

[ "14", "6" ]

[ "6-1" ]

[]

[ "The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms W. Viscardini , of FAC .", "The applicant was married . In DATE his wife , who was pregnant , decided to have an abortion despite his opposition . Her pregnancy was terminated on DATE .", "On DATE the applicant brought an action against his wife in the San Donà di Piave magistrate ’s court , seeking compensation for the infringement of his rights as a potential father and of the unborn child ’s right to life . The applicant further challenged the constitutionality of PERSON no . CARDINAL of DATE , arguing that it contravened the principle of equality between spouses as enshrined in DATE and CARDINAL of LAW in that it left it entirely to the mother to decide whether to have an abortion and took no account of the father ’s wishes .", "The applicant ’s wife maintained that she had acted in accordance with LAW no . CARDINAL of DATE , by which she alone had the right to decide whether to undergo an abortion .", "In an order ( no . CARDINAL ) of CARDINAL DATE ORG declared the constitutionality issue manifestly ill - founded on the ground that the PERSON complained of was based on a policy decision to grant the mother full responsibility for an abortion , and that that decision was not illogical , especially as the effects of pregnancy , both physical and mental , were felt primarily by the mother .", "Having regard to ORG decision , the magistrate ’s court dismissed the applicant ’s action in a judgment of CARDINAL DATE .", "The applicant appealed against that judgment to ORG . He raised a further constitutionality issue , submitting that LAW no . CARDINAL of DATE infringed ORG , CARDINAL of ORG , DATE and CARDINAL of LAW .", "In a judgment of DATE ORG dismissed the appeal on the ground that the right to compensation under LAW presupposed that the applicant ’s wife ’s conduct had been unlawful , whereas she had acted in accordance with LAW no . CARDINAL of DATE . ORG further held that the constitutionality issue raised by the applicant was essentially the same as that raised at first instance and accordingly declared it manifestly ill - founded .", "The applicant appealed on points of law to ORG , arguing , in particular , that LAW no . CARDINAL of DATE infringed ORG , CARDINAL of the ORG , which protected the right to life and the right to found a family .", "In a judgment of DATE , the text of which was deposited at the registry on CARDINAL DATE , ORG dismissed the applicant ’s appeal .", "It had regard to ORG decision of CARDINAL DATE and further held that declaring the abortion legislation unconstitutional would not have had any bearing on the applicant ’s claim for compensation . The claim was in any event bound to fail in the absence of any unlawful conduct on the part of the applicant ’s wife , who had made use of a right to which she was entitled .", "Law no . CARDINAL of DATE allows doctors to terminate a pregnancy in specified circumstances .", "By DATE of the PERSON , a woman may decide to have her pregnancy terminated before DATE where continuation of the pregnancy , childbirth or motherhood might endanger her physical or mental health , in view of her state of health , her economic , social or family circumstances , the circumstances in which conception occurred or the likelihood of abnormalities or of malformations of the foetus .", "The woman may apply to a health centre ( struttura socio - sanitaria ) , a clinic ( consultorio ) established under LAW no . CARDINAL of DATE or her doctor .", "By sections CARDINAL and CARDINAL of the LAW , clinics and health centres must carry out the necessary medical examinations . Where an abortion is requested because of the impact of economic , social or family circumstances on the pregnant woman ’s health , they must also", "( a ) NORP examine possible solutions to the problems , together with the woman and , with her consent , the potential father ;", "( b ) help the woman to overcome the problems that have led her to request an abortion ; and", "( c ) take any appropriate measures to help the woman by providing her with all the necessary assistance both during the pregnancy and after the birth .", "Where the woman applies to her doctor , the doctor carries out the necessary medical examinations and , together with the woman and the potential father , discusses the reasons for her decision to request an abortion , having regard also to the results of the examinations . The doctor informs the woman of her rights , the welfare facilities available to her , and the clinics and health centres at her disposal .", "In cases of emergency , a doctor from the clinic or health centre or the woman ’s own doctor immediately issues her with a certificate attesting that termination of the pregnancy is urgently required . On the basis of the certificate , the woman may report to CARDINAL of the establishments authorised to perform abortions .", "If the results of the medical examination indicate that there is no emergency , the doctor draws up a certificate , which the woman must also sign , attesting that she is pregnant and that her request for an abortion has been made in accordance with LAW . At the same time the doctor gives DATE to think the matter over . Once that period has elapsed , the woman may request the termination of her pregnancy at an authorised establishment , on the basis of the medical certificate .", "Beyond DATE , an abortion may be carried out", "( a ) where pregnancy or childbirth entails a serious threat to the woman ’s life ; or", "( b ) where conditions entailing a serious threat to the woman ’s physical or mental health have been diagnosed , including serious abnormalities or malformations of the foetus .", "The abortion process is covered by LAW ( Law no . CARDINAL ) .", "There is no provision in law allowing the potential father to prevent an abortion from taking place ." ]

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[ "The applicants were born in DATE and DATE respectively . They were serving their prison sentences at Bergama prison at the time of the application .", "The applicants were arrested and taken into police custody by police officers at the LAW - terror branch of ORG on DATE respectively .", "On DATE ORG ordered the applicants’ remand in custody .", "On DATE the public prosecutor at ORG filed a bill of indictment with that court and accused the applicants and CARDINAL other suspects of membership in an illegal organisation , namely the PERSON ( ORG İhtilalci Komünistler Birliği ) . He requested that the applicants be convicted and sentenced under LAW § CARDINAL of LAW and LAW no . ORG .", "On DATE ORG convicted the applicants as charged and sentenced them to DATE and QUANTITY months’ imprisonment .", "On DATE ORG held a hearing and upheld the judgment of the first - instance court .", "The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) , and GPE v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .", "By PERSON no . CARDINAL of DATE , published in ORG on DATE , ORG have been abolished ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in FAC . He is represented before the Court by PERSON , a lawyer practising in FAC .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE the ORG convicted the applicant of uttering threats and battering his wife and sentenced him to four years’ imprisonment , with execution of the sentence stayed for a probationary period of DATE . On DATE ORG dismissed his appeal .", "The applicant lodged with ORG a cassation appeal within the CARDINAL days’ time - limit provided for by law , alleging various procedural shortcomings which , in his argument , negatively affected both his defence rights and the outcome of the case . ORG , having examined the appeal , found that it complied with the formal requirements specified by LAW and subsequently forwarded it to ORG .", "On DATE ORG , at a court session held in camera , dismissed his cassation appeal as manifestly ill - founded .", "Under LAW of DATE a party to criminal proceedings can lodge a cassation appeal with ORG against a final judgment of the appellate court , which has terminated the proceedings . The cassation appeal has to be drafted and signed by a lawyer .", "A cassation appeal can be lodged only on the grounds referred to in LAW . These grounds include certain procedural shortcomings , which justify quashing of a first - instance decision , regardless of whether they are invoked by the party lodging any remedy against such decision ( for example , wrong composition of the court , lack of legal assistance in cases where such assistance was compulsory , violation of the rules governing jurisdiction of criminal courts , certain breaches of defence rights ) . A cassation appeal can also be lodged on the ground of another flagrant breach of law , if such a breach negatively affected the judicial decision under appeal .", "Article CARDINAL of the LAW provides that the court which gave the decision appealed against is competent to decide whether the formal requirements for a cassation appeal are satisfied , and to refuse to accept the appeal , if this is not the case . If the appeal is admissible , it is forwarded to ORG .", "Pursuant to LAW , as amended on DATE to take effect as of DATE , the ORG shall consider the cassation appeal against a judgment at a hearing . However , it is open to the ORG to dismiss such appeal at a session held in camera , if it considers that it is manifestly ill - founded . No written grounds shall be prepared for such a decision ." ]

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[ "The applicant was born in DATE and lives in GPE . She is also a paraplegic .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant lodged a property - related claim with ORG ( PERSON ) in GPE , seeking declaratory relief . In so doing , she failed to specify the exact value of the claim in question ( vrijednost spora ) . However , on DATE she paid court fees of MONEY ( ORG ) , which corresponded to the value of claims ranging between ORG CARDINAL and EUR CARDINAL .", "On DATE , at the end of the main hearing ( glavna rasprava ) and after additional evidence had been examined , the applicant specified that the value of the claim was EUR CARDINAL .", "On DATE ORG ruled in favour of the applicant . The judgment stated , inter alia , that the value of the claim was LAW and noted that “ [ an expert witness had assessed that ] on CARDINAL DATE ... the total value of ... the property ... [ at issue had been ] ... LAW ” .", "On DATE ORG ( PERSON ) in GPE quashed that judgment and ordered a re - trial .", "On DATE the applicant , after the main hearing had ended and on the court 's request , specified that the value of the claim was EUR CARDINAL,CARDINAL . On DATE the respondent 's representative submitted his claim for costs based on the value of the claim being ORG CARDINAL,CARDINAL .", "On DATE ORG ruled against the applicant . The judgment specified , inter alia , that the value of the claim was LAW and once again referred to the said expert 's findings .", "On DATE ORG upheld that judgment on appeal .", "On DATE ORG ( PERSON ) in GPE rejected the applicant 's appeal on points of law ( revizija ) as inadmissible , stating that the court fees ( sudska taksa ) paid by the applicant had indirectly set the value of the claim significantly below the statutory threshold ( see LAW at paragraph CARDINAL below ) .", "Sections CARDINAL provide general rules as regards the means of establishing the value of a civil claim .", "Section CARDINAL § CARDINAL provides that in cases not relating to pecuniary requests the relevant value of the claim shall be the CARDINAL indicated by the plaintiff in his / her claim .", "Section QUANTITY further provides that when the value specified by the plaintiff appears to be obviously incorrect , the competent first - instance court shall “ at the latest at the preliminary hearing ( pripremno ročište ) or , if there was no preliminary hearing , at the main hearing before the examination of merits , speedily and in an adequate manner , check the accuracy ” of the specified value .", "LAW provides that when the right to an appeal on points of law depends on the value of the claim “ the plaintiff has a duty to indicate [ the value of the claim ] in the statement of claim ” .", "Section CARDINAL § CARDINAL provides that an appeal on points of law shall not be admissible in non - pecuniary matters where the value of the claim does not exceed approximately EUR CARDINAL .", "Under sections ORG and CARDINAL - CARDINAL , inter alia , ORG may , should it accept an appeal on points of law lodged by one of the parties concerned , overturn the impugned judgment or quash it and order a re - trial before the lower courts .", "Sections CARDINAL and CARDINAL of this LAW stipulate that legal guardianship shall be provided only to persons not capable of taking care of their “ person , rights and interests ” ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicants are NORP passport - holders of NORP origin ( see complete list in the FAC ) . They submit that they have been deprived of their NORP citizenship and that their status in GPE is that of stateless “ foreigners ” . When introducing their application , they were held at FAC of ORG , located on the LOC of FAC . Before the ORG they are represented by Mr. PERSON , a lawyer practising in GPE and acting on behalf ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "A.", "On DATE the applicants , coming from GPE , GPE , arrived at FAC . At the passport control , the NORP immigration authority established that their visas had been reported stolen . Subsequently they were informed that they would be returned to GPE . Assisted by an interpreter , they signed the decision of ORG to that effect and waived their right to an administrative appeal . On DATE , a lawyer acting on behalf of the Mahatma Gandhi International Human Rights Organisation , contacted them . On DATE the applicants made a request for asylum . On DATE they were committed to FAC .", "As to the circumstances at FAC , the applicants allege that they were all - men , women and children together - lodged in CARDINAL rooms of a surface of QUANTITY , packed with bunk beds . They were under constant control by armed guards and not allowed to leave the LOC of FAC . The Government , for their part , allege that , on their committal to FAC , it was the applicants’ express desire to be allowed to stay together , as a result of which a room suitable to accommodate CARDINAL people was allocated to them . Admitting that the ORG stay at ORG was subject to severe security scrutiny , the Government nevertheless submit that on the occasion when one of the applicant children had had to be taken to hospital , the parents were escorted to the hospital to visit their child DATE , on DATE .", "Meanwhile , on DATE ORG , pending the asylum proceedings , suspended the enforcement of the applicants’ deportation to GPE . On DATE the NORP authorities heard the applicants , represented by Dr. PERSON , with a view to clarifying their situation , if returned to GPE .", "After having interviewed the applicants , on DATE the NORP ORG of the ORG High Commissioner for Refugees dismissed the ORG request for asylum on the ground that their allegations lacked credibility . On DATE ORG and ORG approved the applicants’ deportation to GPE . On DATE ORG ordered the applicants’ deportation . Upon the announcement of the deportation order , the applicants insisted that they would not leave GPE for any NORP country . As a consequence , their deportation did not take place .", "On DATE Dr. PERSON brought an action on behalf of the applicants before ORG challenging the ORG ’s deportation order as well as their committal to FAC .", "On DATE ORG discontinued the proceedings . ORG recalled that the applicants had waived their right to an administrative appeal against the return order of DATE . ORG pointed out that , since they had not exhausted the relevant administrative remedy in this respect , the applicants had no locus standi in judicial proceedings with a view to reviewing the impugned administrative proceedings .", "Meanwhile the applicants were committed to ORG in GPE . On DATE ORG was informed that the applicants had , without authorisation , left the camp by undoing the fence . In his submissions of DATE , the ORG representative submitted that the applicants had eventually left GPE for GPE .", "B. Relevant domestic law", "The DATE LAW no . DATE )", "Section CARDINAL § CARDINAL provides that foreigners may cross the NORP state frontier and stay on the territory of GPE only if they have valid passports verifying their citizenship and particulars of identification , and have valid visas issued by the NORP authorities .", "According to S. CARDINAL § § CARDINAL , CARDINAL and DATE , all conditions of entry and stay shall be inspected by the border guards at the time of entry to the country by the foreigner , prior to crossing the state frontier , while the availability of financial means shall be inspected by the customs authority . Foreigners who do not satisfy the conditions prescribed for entering the country , shall - subject to the provisions of S. CARDINAL § CARDINAL - be returned to the territory of the country they arrived from . Upon notification , an appeal may be lodged against the order of return .", "Section CARDINAL § CARDINAL provides that foreigners shall not be returned or expelled to such countries , or to the frontier of such areas , where they would be exposed to the danger of persecution for reasons connected with their race , religion , national , social belonging or political views ; furthermore , to the territory of such states , or to the frontier of such areas , where it is to be greatly feared that they would be exposed to torture , inhuman or degrading treatment . These reasons shall be established by the refugee authority .", "Section CARDINAL provides the possibility of ordering an alien ’s residence at a designated place . According to paragraphs CARDINAL and CARDINAL , the police headquarters and the directorate or branch of ORG may order the residence of the foreigner at a designated place , restricting his personal liberty , if : ( a ) he is not able to certify his identity , until the establishment thereof ; or ( b ) he is not able to certify the lawfulness of his stay in GPE , until the verification thereof or until an official permit to stay is issued ; or ( c ) this is necessary for the purposes of guaranteeing the execution of an expulsion , until the establishment of the conditions of expulsion ; or ( d ) his return was ordered ( see PERSON above ) ; or ( e ) his return or expulsion should take place , but he may not be returned or expelled in accordance with the prohibition under PERSON § CARDINAL .", "The compulsory place of residence may also be designated at a communal accommodation , if the foreigner is not able to support himself , and no appropriate accommodation , financial means , income and inviting party or relatives obliged to support him are at his disposal .", "Paragraph CARDINAL provides that , although no administrative appeal may be lodged against the order to reside at a designated place , the foreigner may request the court review of the decision . The procedure of the court shall be governed by the provisions applicable to the court review of the lawfulness of ‘ custody for the purposes of supervision of ORG . These provisions are as follows :", "Section CARDINAL § § CARDINAL and CARDINAL provide that foreigners may request - during the period of custody - a review of the lawfulness of the decision from the local court competent at the place of custody . The submission of such a request has no suspensive effect in respect of the enforcement of the custody order . If the foreigner requests the court review of the lawfulness of the ‘ custody for purposes of supervision of GPE , he shall be brought before the court in order to be heard . According to S. CARDINAL § CARDINAL , if the court finds that the foreigner ’s taking into , or holding in , custody violates the law , it shall take immediate measures for his release . Section CARDINAL § § CARDINAL , CARDINAL and CARDINAL provide that the authority ordering the taking into custody as well as the foreigner may appeal against the decision of the court . The appeal may be submitted orally in the course of the hearing or in writing to the local court within DATE following the announcement of the decision . Appeals submitted against the decision of the local court shall be decided by the regional court within DATE . Section CARDINAL requires that the court shall act promptly in matters of judicial review of decisions of the immigration authorities .", "Act no . CARDINAL of DATE on LAW", "Section CARDINAL provides that an [ administrative ] appeal lies against any first instance [ administrative ] decision taken on the merits of a case . Persons entitled to lodge an appeal may waive their right to appeal within the appeal deadline . According to PERSON , if an administrative decision is not in compliance with the law , the superior administrative body may amend or quash it .", "Section CARDINAL provides that an administrative decision taken on the merits of a case may be challenged in court within DATE from its delivery . Such judicial review may , however , take place only if the administrative remedies - if any - available in the case have already been exhausted ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE ORG ( GPE Republic allowed the applicant ’s claim against ORG for provision of housing . ORG ordered that the administration :", "“ ... provide PERSON and his family members with living premises that meet sanitary and technical requirements ” .", "The judgment of DATE was amended on appeal by ORG ( GPE ) Republic on DATE . ORG ordered that the administration :", "“ ... provide PERSON and his family members with well - equipped living premises in a stone building constructed after DATE ” .", "On DATE the ORG of ORG of the Sakha ( GPE ) Republic , by way of supervisory - review proceedings and upon the applicant ’s request , amended the judgment of DATE and ordered that the administration :", "“ ... provide PERSON with a CARDINAL - room well - equipped flat in a new stone block of flats ” .", "The judgment entered into force on DATE .", "In DATE the bailiffs’ service opened enforcement proceedings and in DATE charged CARDINAL flats belonging to ORG .", "On DATE ORG , upon the complaint from ORG , quashed the bailiffs’ charging order .", "After the decision of CARDINAL DATE had been quashed on appeal and the case had been remitted for a fresh examination , ORG reconsidered the matter and discontinued the proceedings .", "NORP In DATE the bailiffs charged CARDINAL flats of ORG and deposited them with the administration ’s creditors . The applicant was not among them . The bailiffs also fined ORG for its failure to enforce the judgment in the applicant ’s favour . Those decisions were quashed by ORG , upon the administration ’s appeal .", "On an unspecified date liquidation proceedings were instituted against ORG and in DATE the bailiffs sent the writ of execution to the liquidation commission .", "At the time the application was lodged with the ORG , the judgment of DATE , as amended on DATE , remained unenforced because ORG possessed no available housing or financial resources to purchase a flat .", "On DATE ORG of the Sakha ( GPE Republic offered the applicant to purchase a CARDINAL - room flat at the ORG ’s expense . DATE the applicant bought a CARDINAL - room flat and submitted a copy of the contract to ORG ( GPE .", "On DATE ORG of the Sakha ( GPE Republic paid the purchase price to the construction company and NORP on DATE the company provided the applicant with keys to the flat and he and his family members moved into it ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . He was represented before the ORG by PERSON GPE Sürek , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested by police officers from the anti - terror branch of ORG . On DATE he was detained on remand .", "On DATE the public prosecutor at ORG filed a bill of indictment charging the applicant with membership of an illegal organisation , the DHKP - C , contrary to LAW .", "On DATE ORG convicted the applicant , who was represented by CARDINAL lawyers during the proceedings , as charged and sentenced him to CARDINAL years’ imprisonment .", "On DATE CARDINAL of the applicant ’s lawyers filed an appeal with ORG against the judgment of DATE .", "On DATE ORG upheld the first - instance court ’s judgment .", "On DATE ORG decision was deposited with the registry of ORG .", "On DATE the committal order ( müddetname ) concerning the execution of his sentence was served on the applicant ." ]

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[ "PERSON is an NORP citizen residing at PERSON . At the relevant time , he was Chairman of ORG ( PERSON , ORG ) for LOC in GPE and councillor ( PERSON ) of PERSON .", "In DATE Mr GPE , Mayor of PERSON in GPE and a member of the ORG , was convicted of negligently causing bodily harm ( fahrlässige GPE ) and of abandoning the victim ( NORP eines ORG ) of a traffic accident whilst under the influence of alcohol ( CARDINAL per mille ) . He was sentenced to CARDINAL months’ imprisonment .", "The question whether the Mayor should resign because of his conviction later became the subject of discussion in political circles and the press in LOC .", "On DATE the NORP newspaper ORG published an article headed \" If ORG does n’t think it over , we will \" . That article quoted from an interview with the Head of ORG , PERSON , who was the Chairman of the LOC branch of ORG ( ORG ) , about the question whether the Mayor should resign or not . Mr PERSON stated that , although an accident of the kind in question could happen to anybody , it was not acceptable that a person who had acted in such a way should remain in public office . He continued : \" I do not intend to take part in a witch hunt , but after a period of reflection Tomaschitz ought to realise that he must resign \" . According to PERSON , however , that was primarily a matter for the ORG . He nevertheless concluded by saying that if Mr Tomaschitz would not think it over , ORG ( ORG ) would .", "On DATE PERSON issued a press release by way of reply to that article and sent it to several NORP newspapers . On DATE the ORG published a summary , headed \" Looking after morality in the SPÖ \" . A complete version of the release appeared on DATE in FAC ( an ORG newspaper ) , under a headline \" Different standards ? \" ( PERSON ? ) . It read :", "\" Councillor PERSON , Chairman of ORG for LOC , stated in a broadcast that , after being convicted for leaving the scene of an accident without reporting it , PERSON , the Mayor of PERSON and a member of the ÖVP , would unquestionably have to resign .", "However , he added that PERSON , the Head of ORG , did not have the slightest moral right to attack Mayor PERSON for his refusal to resign . PERSON had known for DATE that his Deputy , PERSON , had caused an accident on DATE at ORG ( GPE ) while under the influence of alcohol ( i m alkoholisierten GPE ) . The accident had left CARDINAL children fatherless . One could not help feeling that the Head of ORG applied stricter standards to a ‘ small mayor of a ORG , who was a member of another political party , than to his ‘ party friend’ and Deputy , PERSON . PERSON concluded that PERSON ’s credibility would be enhanced if he were to provide , within the ORG , for the political morals which he requires of others . \"", "The applicant had based his press release on an article that had appeared in the NORP magazine ORG on DATE . It referred to the circumstances of PERSON car accident in DATE , in which a man had died and other persons had been injured , and contained the following passage :", "\" ...", "PERSON was found to have a blood alcohol content of CARDINAL per mille . That was the limit .", "DATE , on DATE , Frühbauer , whose immunity as a Member of ORG had been lifted , was sentenced by ORG to a prison term of DATE , suspended for DATE , for negligent homicide .", "There was no conviction for intoxication ( GPE ) . Jurists are still guessing at the reasons because , according to LAW CARDINAL of the DATE Road Traffic Code , impairment by intoxication is presumed ‘ at QUANTITY or ORG .", "Be that as it may . I do not want ( and the criminal law does not allow me ) to reproach Frühbauer with his conviction at that time . After all , no one is immune from being similarly involved in a traffic accident .", "My accusation is a political one . When PERSON was appointed Transport Minister by PERSON in DATE , he kept quiet about his conviction , or at least about the fact that at that time he still had a criminal record ( noch vorbestraft war ) .", "In fact on DATE , the date of the judgment , the DATE period of suspension of his sentence began to run . DATE before DATE , on DATE , PERSON was appointed Transport Minister but he continued to have a criminal record for a long time afterwards , because of the period which was then applicable with regard to the cancellation of such records . He was thus , to my knowledge , the only Minister of GPE to have a criminal record ... \"", "The applicant had verified the contents of the ORG article in a telephone conversation with its author . Furthermore , he had taken into account the judgment of CARDINAL DATE of ORG ( GPE ) . In determining sentence , that court had regarded as an aggravating circumstance the fact that the accused had been driving after consuming alcohol in an amount that brought him close to the level at which a driver was presumed to be intoxicated ( GPE , QUANTITY ) .", "On DATE Mr Frühbauer requested ORG ( PERSON , \" ORG \" ) to initiate a preliminary investigation against PERSON . After completion of the investigation , PERSON brought a private prosecution under LAW paras . CARDINAL and CARDINAL and LAW ( see paragraphs CARDINAL and DATE below ) .", "On DATE the applicant was convicted of defamation ( Article CARDINAL paras . CARDINAL and CARDINAL of LAW ) and of having reproached a person with an offence for which he had already served his sentence ( LAW ) . The penalty imposed was a fine of MONEY or , in default of payment , CARDINAL days’ imprisonment . ORG also ordered the seizure of the relevant issue of ORG and the publication of its judgment and awarded to PERSON compensation of MONEY , to be paid by the owners of the newspaper . In addition , the latter were declared to be jointly and severally liable for the payment of the fine and the complainant ’s costs .", "After reciting the relevant facts , ORG concluded that , contrary to LAW , PERSON had reproached PERSON with a conviction , relating to a traffic accident , that dated back DATE . Furthermore , his statement that the complainant was under the influence of alcohol and his comparison of the accident in question with Mr ORG , in addition to his criticism of the complainant for lacking political morals , amounted to defamation .", "According to ORG , Article CARDINAL was primarily aimed at securing the reintegration of criminal offenders , but it was applicable irrespective of whether or not reproaching them with a previous conviction jeopardised that reintegration .", "PERSON had not been obliged under LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) to make the impugned statement . The fact that a political party felt embarrassed about a car accident of CARDINAL of its officials was not an excuse for \" digging out \" a very old accident of an official of the opposite party . Moreover , the applicant had not been under a duty to reply to a political opponent , since Mr PERSON ’s criticisms were addressed to Mayor PERSON and not to him . In particular , PERSON , the Chairman of a small district organisation , did not need to react by defaming a third person .", "In ORG view , moreover , it was not open to the applicant to plead that his allegation that PERSON had been driving under the influence of alcohol was correct . The man in the street would conclude from such a statement that the latter - like Mr Tomaschitz - had had a blood alcohol content of CARDINAL per mille at the time of the accident . In fact , a lower level was tolerated by the legislature and the public , and the applicant had not mentioned that the complainant had not been convicted of drunken driving ( in alkoholbeeinträchtigtem GPE ) .", "Neither could PERSON maintain that he had intended to refer to a blood alcohol content lower than CARDINAL.CARDINAL per mille . The aim of his press release had been to put both accidents in moral terms on an equal footing , which would entail the same consequence , namely the resignation of the CARDINAL officials concerned . That , together with the title of the article , \" Different standards ? \" , could have led the reader to believe that the complainant ’s blood alcohol content had also attained the forbidden level at the time of his accident .", "The defendant also could not claim that his press release had been directed not against PERSON , but against Mr PERSON . It was true that the criticism relating to a lack of political morals had been primarily aimed not at the latter , who was responsible in principle for the political morals of the ORG , but at the former , who had not resigned after his accident . However , that particular allegation could not in itself constitute defamation , since a politician had to be tolerant in this respect ; what was decisive in the present case was the comparison of the CARDINAL accidents from a moral point of view .", "In respect of this defamation too , the applicant could not rely on Article CARDINAL para . CARDINAL of LAW , because , as he had or should have been aware , the impugned statement had been incorrect . Furthermore , in the present case proof of good faith ( Article CARDINAL para . CARDINAL ; see paragraph CARDINAL below ) was not relevant , since the offence had taken place through a publication ; neither was proof of proper journalistic care ( section CARDINAL of LAW , Mediengesetz ; see paragraph CARDINAL below ) , since the defendant was not a journalist . As to proof of truth , ORG considered evidence given by a witness of PERSON accident in DATE , as well as the expert opinions submitted in the relevant criminal proceedings in DATE , and concluded that PERSON had failed to prove the truth of his allegations .", "On CARDINAL DATE the applicant lodged an appeal ( GPE ) against his conviction with ORG ( Oberlandesgericht ) . He submitted in particular that he had written his press release in the context of a political discussion and in reply to criticisms by the Head of ORG expressed in respect of a member of the ORG and of that party , and that the release had not been directed against PERSON . He had , accordingly , felt himself obliged to defend his own party and to inform the public about the Head of ORG political morals and apparent motives . He had then remembered the DATE Profil article ( see paragraph CARDINAL above ) and found that the CARDINAL accidents raised the same problem , namely whether it was proper for a person with a criminal conviction to exercise official functions . He had thought that this question was worth discussing and wanted to draw the attention of the public to a possible information lacuna . Finally , he had considered his statement about the complainant having driven under the influence of alcohol to be correct , since it was based on the formulation used by ORG in its judgment of CARDINAL DATE ( see paragraph CARDINAL above ) ; and it was also justified in the context of a political discussion .", "On DATE CARDINAL ORG dismissed PERSON appeal .", "The court observed that the applicant ’s statement had clearly amounted to a reproach concerning a criminal conviction for which the sentence had already been served , within the meaning of LAW . In its view , he had not been compelled to reply to PERSON . Neither had he been given any mandate to reply in the name of the ORG , nor had he himself been addressed directly as Chairman of ORG or as a member of the party ’s executive committee . Someone who by his conduct has given good reason for criticising him must accept attacks on his honour to a greater extent than someone who has not . Furthermore , PERSON himself had made no statement which called for reaction on the part of PERSON .", "The court also upheld ORG judgment in all other respects .", "The judgment was served on the applicant on DATE . He thereupon requested the Attorney - General ( Generalprokurator ) to file a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) , with reference , inter alia , to the right to freedom of expression under LAW ) of the LAW and to the PERSON v. GPE judgment of DATE ( Series A no . CARDINAL-B ) .", "PERSON was informed on DATE that the Attorney- General did not intend to take any action .", "Article CARDINAL of the Criminal Code provides :", "\" CARDINAL . Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...", "Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...", "The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . \"", "Under LAW , \" evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ... \" .", "Under LAW para . CARDINAL \" conduct of the kind mentioned in LAW ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right \" . Under paragraph CARDINAL of the same provision \" a person who is forced for special reasons to make an allegation within the meaning of LAW ... in the particular form and manner in which it was made , is not to be punished , unless that allegation is untrue and the offender could have been aware thereof if he had acted with the necessary care \" .", "LAW reads as follows :", "\" Anyone who in such a way that it may be perceived by a third person reproaches another with having committed a criminal offence in respect of which the sentence has already been served , or has been waived or reduced ( even if only conditionally ) or in respect of which the sentence has been provisionally deferred shall be liable to imprisonment not exceeding DATE or a fine ... \"", "Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim compensation from him . Furthermore , the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings ( section CARDINAL ) .", "The person defamed may request the forfeiture of the publication by which a media offence has been committed ( section CARDINAL ) , as well as the publication of the judgment in so far as this appears necessary for the information of the public ( section CARDINAL ) .", "LAW of LAW provides as follows :", "\" CARDINAL . A media owner ( publisher ) or media employee shall not be punishable for an offence relating to material appearing in the media , in respect of which proof of truth is admissible , not only if proof of truth has been brought but also if there was a predominant public interest in publication and even with proper journalistic care being applied he had sufficient grounds for considering the statement to be true . However , in respect of such an offence relating to a person ’s private life , a media owner ( publisher ) or media employee shall not be punishable only if the statement is true and directly connected with public affairs .", "Such proof is to be received only if the accused relies thereon . In cases within the first sentence of paragraph CARDINAL , the court must receive proof of truth , if tendered by the accused and admissible , even if it assumes that the exercise of proper journalistic care has been proved .", "If an accused is acquitted only because the conditions specified in the first sentence of paragraph CARDINAL are met , the court must , in analogous application of section CARDINAL , order publication of the finding that proof of truth has not been tendered or has not succeeded , and order that the accused is to bear the costs of the criminal proceedings including the costs of such publication .", "Article CARDINAL para . CARDINAL and LAW shall not apply . \"" ]

[ "10" ]

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[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lived in GPE until his arrest . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .", "ORG ( “ the Government ” ) were represented by PERSON , ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "DATE and DATE and subsequently between CARDINAL DATE and CARDINAL DATE the applicant was held in remand prison GPE in GPE . According to him , the conditions of his detention were inadequate ; the Government disputed that .", "By ORG judgment of DATE following a jury trial , the applicant was convicted of forming and leading a criminal syndicate , murder , unlawful possession of weapons and ammunition and armed robbery , and sentenced to DATE imprisonment in a high - security institution . On DATE ORG of GPE upheld the judgment on appeal .", "On DATE the web - sites of ORG and ORG and the Regions . Ru news portal published information about the conviction of the applicant and his co - defendants . On DATE the applicant lodged a defamation claim against the ORG offices and the news site , alleging in particular a breach of his presumption of innocence . He sought leave to appear in person before the court but his request was rejected . On DATE the ORG of GPE dismissed his claim , finding that the prosecutors had accurately reported the findings contained in ORG judgment of DATE and that the news items concerned a matter of public interest . The case file does not contain a copy of a statement of appeal or of an appeal judgment .", "On DATE the applicant sent a letter to the ORG , containing an outline of his complaints . It was registered under application no . CARDINAL/CARDINAL and the applicant was invited to return the completed application form no later than DATE . As no further correspondence had been received from the applicant for DATE , his complaints were taken to have been withdrawn and the file opened in respect of the application was destroyed .", "On DATE the applicant ’s representative Mr Trunov sent a letter to the ORG , indicating that the applicant wished to lodge a complaint under LAW about the conditions of his detention in the ORG remand prison and the conditions of his transport to ORG , a complaint under LAW concerning his pre - trial detention and a complaint under LAW alleged irregularities in the criminal proceedings against him and in the subsequent defamation proceedings . This application was given number DATE .", "NORP By letter of CARDINAL DATE , the ORG acknowledged receipt of the letter to the applicant ’s representative and informed him as follows ( translated from NORP ) :", "“ You should return by post the completed application form not DATE from the date of the present letter . In other words , the date on which you send back the completed application form must not be later than DATE . Failure to comply with this time - limit will mean that it is the date of the submission of the completed application form rather than that of your first communication which will be taken as the date of the introduction of the application . Your attention is drawn to the fact that it is the date of introduction that is decisive for compliance with the time - limit set out in LAW ( see para . CARDINAL in the enclosed Notes for Guidance to applicants ) . ”", "On DATE the ORG received the completed application form . It was signed by PERSON and PERSON , the applicant ’s representatives , and dated “ DATE ” .", "On DATE the ORG received a letter from the applicant which was dated DATE . In that letter , the applicant stated his intention to lodge a complaint under LAW and CARDINAL of the Convention about the conditions of his detention in the ORG remand prison in the period after DATE . On DATE the ORG received a letter which was identical in its contents but it was dated DATE and signed by PERSON , the applicant ’s representative .", "NORP By letter of DATE , the ORG informed the applicant that another application in his name had already been registered on the basis of Mr Trunov ’s letter of CARDINAL DATE . The applicant was requested to clarify whether he would like to introduce a new application or to have his communication joined to the existing file . ORG did not receive any reply from the applicant .", "On DATE the ORG received an undated letter from Mr Trunov , which referred to application no . CARDINAL/CARDINAL . He requested in particular priority treatment of the applicant ’s case , alleging that his life and health were in danger . On DATE the President of ORG rejected the request .", "By another undated letter received at ORG on DATE , Mr Trunov petitioned the ORG for a joinder of applications no . CARDINAL/CARDINAL and DATE and reiterated his request for priority treatment . On DATE the ORG advised him that the file opened in respect of application no . CARDINAL/CARDINAL had been destroyed and that his renewed request for priority did not contain any new factual information ." ]

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[ "The applicants are CARDINAL NORP nationals ( see Appendix ) .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants were creditors , together with CARDINAL other individuals , of an insolvent private company . Since they were unable to obtain their outstanding claims , they intended to hold a series of demonstrations DATE and DATE in front of the Prime Minister ’s private residence in GPE . The applicant submitted photographs of the scene of the proposed events . According to these photographs , the Prime Minister ’s house is situated on a CARDINAL - lane road in a residential area composed of villas . Across the street from that property , between parked cars and the fence of another villa , there is a footpath parallel to which is a strip of grass which is QUANTITY wide . The applicant stated that the participants in the planned demonstrations intended only to occupy this pedestrian zone .", "The first applicant , PERSON ( “ the applicant ” ) , was the main organiser of the events . He notified ORG as prescribed by the law . On DATE the police prohibited the demonstrations . The applicant sought judicial review . On DATE ORG quashed the decision and remitted the case to the police .", "In the resumed proceedings , the police again prohibited the demonstrations on DATE . The applicant sought judicial review . ORG dismissed his action on DATE .", "In the meantime , the applicant and CARDINAL other private individuals – according to the applicant ’s submissions , “ disguising themselves as tourists ” – appeared before the Prime Minister ’s house . The police were also present , but since the applicant informed them that they did not intend to “ demonstrate ” , they were not prevented from walking in front of the Prime Minister ’s house and they then left the scene undisturbed . They did not cause any hindrance or inconvenience to the traffic or other pedestrians .", "Subsequently , the applicant notified the police of another demonstration planned for DATE for the same reasons and at the same spot . The planned number of demonstrators was DATE . The head of ORG , relying on LAW no . III of DATE on ORG ( “ the LAW ” ) , prohibited the event on CARDINAL DATE .", "NORP The police were of the view that the pavement was not wide enough to secure the necessary space for the demonstrators and other pedestrians at the same time . Therefore , in order to prevent possible accidents and confrontations between the demonstrators and passers - by , it would be necessary to close CARDINAL the street . They pointed out that on the street in question CARDINAL bus services operated on a regular basis and that on CARDINAL DATE , All Saints’ Day , the traffic was expected to be heavier since many people would visit cemeteries DATE . The police , therefore , having obtained the expert opinion of ORG , held that the demonstration would cause a disproportionate hindrance to the traffic , which could not be secured by alternative means . The applicant sought judicial review .", "On DATE ORG dismissed the applicant ’s action . It established that the police decision had been in compliance with the law and in particular with LAW .", "Subsequently , the applicants intended to organise other demonstrations limited to QUANTITY persons . On DATE the applicant notified the police that on DATE , DATE , DATE and in TIME DATE demonstrations were to take place , again in front of the Prime Minister ’s house . On CARDINAL DATE the head of ORG prohibited these events .", "The police reiterated that the pavement was not wide enough to secure the necessary space for the demonstrators and other pedestrians at the same time . Therefore , in order to prevent possible accidents and confrontations between them , CARDINAL the street would need to be closed . It pointed out that on the street in question CARDINAL bus services operated on a regular basis and , in DATE , the traffic was expected to be heavier since many people left for the ski resorts around GPE via that street . It added that there was also a possibility of heavy snowfalls and that it would be difficult to secure alternative routes .", "The police , therefore , obtaining the expert opinion of ORG , held that the demonstrations would cause a disproportionate hindrance to the traffic , in particular to the buses , which could not be secured by alternative means .", "The applicant sought judicial review . He stated that his aim was to hold peaceful , silent demonstrations lasting TIME . The only ‘ ORG planned was to stand in line in front of the Prime Minister ’s house , with CARDINAL participants .", "On DATE ORG dismissed the applicant ’s motion . It established that the police decision had been in compliance with the law and the Convention .", "On DATE ORG officially informed the applicant that on DATE no buses would be running after TIME", "The LAW of GPE no . DATE as amended ) provides , in so far as relevant , as follows :", "“ GPE acknowledges the right to peaceful assembly and secures its free exercise . ”", "NORP The relevant provisions of Act no . CARDINAL of DATE on ORG ( “ the LAW ” ) read as follows :", "“ ( CARDINAL ) The exercise of freedom of assembly shall not constitute a crime or an incitement to crime ; moreover , it should not result in the infringement of the rights and freedoms of others . ”", "“ The organisation of an event held in the public domain shall be notified to the competent police headquarters according to the place of the event , and in GPE to ORG , DATE prior to the planned date of the event . The obligation to notify the police lies with the organiser of the event . ”", "“ ( CARDINAL ) If the holding of an event subject to prior notification seriously endangers the proper functioning of the representative bodies or courts , or the circulation of traffic can not be secured by another route , the police may ban the holding of the event at the place or time indicated in the notification , within TIME of receipt of the notification by the authority . ”", "“ ( CARDINAL ) No appeal shall lie against the decision of the police , but the organiser may seek judicial review of the administrative decision within DATE of its notification . ”", "“ ( CARDINAL ) The police shall disperse the event if the exercise of the right to freedom of assembly contravenes subparagraph CARDINAL of section CARDINAL or if the participants appear at the event ... in possession of arms , or if an event subject to prior notification is held without notification , ... or despite a decision banning the event . ...", "( CARDINAL ) If an event is dispersed , the participants may seek judicial review within DATE with a view to the establishment of the illegality of the dispersal . ”" ]

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[ "The applicants are NORP nationals born in DATE , DATE and DATE , respectively . At the time of lodging their applications , the first and third applicants were detained at the PERSON prison in GPE and the second applicant was living in that city .", "The historical and political background to the present case was set out in the judgments of the domestic courts referred to below and may be summarised as follows .", "On DATE PERSON ’s GPE ( hereafter sometimes also referred to as the “ GPE ” ) signed a non - aggression treaty with PERSON ’s GPE ( the “ Molotov - Ribbentrop Pact ” ) . According to a secret additional protocol approved by the parties on DATE and amended on DATE , GPE had been attributed to the sphere of interest of the GPE in the event of a future territorial and political rearrangement of the territories of these then independent countries . Following an ultimatum to allow an unlimited number of NORP troops to be stationed in the NORP countries , on DATE the NORP army invaded GPE . The Government of GPE was removed from office , and a new government was formed under the direction of ORG of GPE ( hereafter “ the ORG ” ) , the GPE ’s only party . On DATE GPE completed the annexation of GPE by adopting an act incorporating the country into the GPE , with GPE being called the “ GPE ” ( the “ GPE ” ) . The Government of the ORG was appointed and controlled by ORG of GPE ( “ the CPL ” ) , a regional branch of the ORG .", "In DATE there was considerable social pressure in GPE , as in other east NORP countries , for the democratisation of political life . As a result of the newly introduced freedom of expression in GPE , massive political movements were formed in GPE , condemning the annexation of the country , asserting the need to construct a new society based inter alia on NORP identity and values , and emphasising the need to restore the ORG ’s independence .", "On DATE ORG of the GPE passed a ORG on ORG of the NORP - German Non - aggression DATE . It denounced that treaty as illegal and invalid ever since its signature . It noted that the territorial divisions into NORP and NORP spheres of influence had been contrary to the sovereignty and independence of several other countries , such as GPE . This was followed by LAW ORG on DATE denouncing the unlawful incorporation of GPE into the GPE in DATE .", "By DATE , the ORG had decided to split from the ORG . The new ORG immediately declared its support for NORP independence and a multi - party political system . In the meantime , a minority of former ORG members created a new party , ORG ( ORG / ORG ) . According to its political programme , CARDINAL of its goals was to maintain GPE as part of the GPE .", "The first independent parliamentary elections under NORP rule took place in GPE on DATE . No member of ORG was elected to ORG ) .", "On DATE the newly elected ORG adopted the LAW on the Re - establishment of ORG , which declared GPE to be an independent , sovereign ORG again and asserted that GPE ’s incorporation into the GPE had been null and void . ORG also reinstated certain provisions of LAW of DATE , and adopted LAW , setting out the constitutional principles of ORG ( paragraphs CARDINAL - CARDINAL below ) . On DATE , ORG approved the Government of GPE and proclaimed the validity of all previous legislation and legal acts which were compatible with LAW .", "GPE repeatedly pressured GPE to renounce its independence and , on DATE , demanded the cancellation of the DATE laws and then immediately imposed an economic blockade for the failure to comply . As a compromise , on DATE ORG adopted the ORG on ORG between GPE and ORG , announcing that , until DATE , it would not adopt new political legislative acts during preliminary parliamentary consultations between the CARDINAL countries , once they began . The GPE did not respond ; so , according to the respondent Government , the ORG did not come into effect .", "On DATE ORG announced the temporary suspension of the actions and decisions flowing from the legislation of DATE , subject to the start of negotiations with GPE . It thereby sought to resolve the issues arising out of the re - establishment of the independent ORG ( see paragraph CARDINAL below ) . However , again , according to the Government , the suspension never took effect as GPE did not formally respond to the NORP authorities .", "On DATE a meeting with the leaders of GPE was held at the FAC in GPE . The then President of GPE , Mr PERSON , refused to lift the economic blockade because he did not accept that a “ moratorium ” was possible in respect of the LAW on the Re - establishment of ORG . On DATE ORG appealed to ORG of the GPE , requesting that the illegal annexation of CARDINAL DATE be denounced , and that GPE ’s name be deleted from GPE .", "On DATE ORG adopted a statement suspending the legal actions stemming from the LAW on the Re - establishment of ORG , subject to formal negotiations with GPE ( paragraph CARDINAL below ) . However , such negotiations never materialised and the conditional moratorium was denounced by ORG on DATE ( paragraph CARDINAL below ) . The moratorium , which any way , according to ORG , had been inoperative , did not affect the lawfulness of the LAW itself .", "On DATE Article CARDINAL of LAW was amended to prohibit activities , inter alia , undermining the constitutional order of GPE , as distinguished from the previous prohibition on anti - NORP activities ( paragraph CARDINAL below ) .", "On DATE President PERSON publicly required ORG to “ reinstate immediately the legal force of the GPE and ORG in GPE . ”", "On DATE the ORG sent an ultimatum to ORG , ordering it to comply with the declaration of the GPE President . Failing that , ORG announced that it would create the “ ORG ” ( NORP nacionalinio gelbėjimo komitetas ) , “ which would take care of matters concerning the future of the ORG . ” On DATE ORG denounced the activities of this ORG as illegal , anti - constitutional , anti - state and criminal . It warned those involved that they would be held responsible in accordance with the laws of GPE .", "DATE , the NORP army conducted military operations against ORG . NORP troops forcibly occupied the buildings of ORG , the GPE television tower , the NORP public television and media headquarters and the ORG train station . NORP troops also tried to take the seat of ORG and other authorities . Massive crowds from the local population came to the defence of the institutions of GPE . CARDINAL NORP civilians were killed and over a CARDINAL injured as a result of the conflict with the NORP army during TIME DATE .", "On DATE a nation - wide plebiscite was organised in GPE , whereby the public was requested to reply to the question whether they supported the following statement : “ ORG is an independent and democratic Republic . ” DATE of those who participated in the referendum answered in the affirmative . On DATE ORG adopted a law which stated that the notion that “ ORG is an independent and democratic Republic ” was a basic constitutional principle of the country .", "On DATE there was an attempted coup in GPE . The self - proclaimed “ ORG ” declared that President PERSON was suspended from his duties , nominated itself as the sole ruling authority and imposed a state of emergency in certain regions of the GPE . This coup ended in failure within DATE .", "In the immediate aftermath of the GPE coup , in the course of DATE and DATE , the new ORG gained diplomatic recognition , inter alia from the GPE , ORG and GPE . The GPE was the CARDINALth State to recognise GPE as a subject of international law and a sovereign ORG , as defined in its “ fundamental acts of CARDINAL DATE ” . It renounced the DATE PERSON which had incorporated GPE into the GPE .", "As regards the activities of ORG , ORG on DATE ORG had dismissed an application for the registration of the “ ORG ” , as it had been deemed to have aims which were incompatible with LAW . On DATE ORG issued the ORG on the activities of ORG in GPE . Thereby it confirmed the illegality of ORG and took steps to ensure its dissolution and the restoration of property which had been seized by that organisation and its subsidiaries whilst under the protection of the NORP military . According to the Government , until the NORP armed forces started to retreat after the failed putsch in GPE , it had not been possible to take effective measures against that organisation .", "In DATE , the first criminal case was instituted in relation to an intervention by the NORP military against a protest meeting . Several offences were investigated . In the course of DATE , a total of CARDINAL other criminal cases were instituted against various members of or collaborators with ORG concerning their alleged attempts forcibly to overthrow the democratically elected authorities of GPE and their breach of the sovereignty of the ORG . Originally CARDINAL defendants had been envisaged , but several had fled to GPE and GPE , from where extradition was refused despite efforts made by NORP officials during visits to those countries . This lack of interstate cooperation impeded the investigation . CARDINAL people were tried ultimately , including the applicants , who had been executives of ORG and were suspected of subversive activities . The CARDINAL cases were subsequently joined in CARDINAL set of criminal proceedings . These proceedings became known in GPE as the “ DATE case ” , a reference to the tragic events during TIME of DATE ( paragraph CARDINAL above ) .", "The first applicant was questioned several times as a witness in the aftermath of the failed GPE coup of DATE . On DATE he was arrested and interrogated in a detention centre as a suspect . He was released on bail on DATE , with a written undertaking not to leave the country . He was imprisoned after his conviction at first instance ( paragraph CARDINAL below ) .", "On DATE it was decided to lay charges against the second applicant under LAW and CARDINAL of LAW . He was not remanded in custody , but had to provide a written undertaking not to leave the country . He was imprisoned after his conviction at first instance ( paragraphs CARDINAL - CARDINAL below ) .", "The third applicant was indicted as a suspect in a criminal case which had been instituted on DATE . As he had fled , an arrest warrant was issued for him on CARDINAL DATE . He alleged that , on an unspecified date in DATE , he was kidnapped in GPE by the NORP authorities and unlawfully brought back to GPE . On DATE he was detained on remand until his subsequent conviction ( paragraphs DATE below ) .", "The pre - trial investigation was concluded on DATE . From DATE until DATE , the first and second applicants had access to the case file . The third applicant had access to the case file from DATE until DATE .", "In the course of the preliminary investigation , CARDINAL witnesses and CARDINAL purported victims were questioned . Moreover , CARDINAL expert examinations of various kinds were carried out . CARDINAL searches were conducted and CARDINAL seizures executed . According to the Government , attempts were made to destroy certain relevant materials and parts were found burnt . Time was needed to determine their contents . A significant part of the materials were in the NORP language , which necessitated translations . Furthermore , interpretation was required in the interrogation of several defendants .", "On DATE the bill of indictment was confirmed with regard to CARDINAL co - defendants , including the applicants . The case consisting of CARDINAL volumes of evidence was sent to ORG for trial .", "The trial started on DATE . The following day until DATE the prosecutors read out the bill of indictment , which alone comprised CARDINAL volumes . There were DATE of interruption due to the applicants’ ill - health .", "On DATE , CARDINAL May , DATE , CARDINAL DATE and DATE and CARDINAL DATE , the trial was adjourned due to the state of health of certain other co - accused .", "From DATE to DATE , the trial was adjourned due to the deterioration of the third applicant ’s health .", "On DATE the court granted CARDINAL requests from purported victims for forensic medical examinations .", "From DATE until DATE , the court was closed for the judicial holidays .", "On DATE , DATE , DATE , DATE and DATE to DATE , the trial could not proceed due to the illness of CARDINAL or other of the defendants , or because of the absence of certain witnesses .", "On DATE , DATE , CARDINAL - CARDINAL DATE , DATE to DATE , CARDINAL DATE to DATE and DATE , the trial was adjourned in view of the poor health of CARDINAL or other of the defendants .", "From DATE , the trial was adjourned in view of the failure of CARDINAL of the defence lawyers to appear .", "From DATE until DATE , the case was adjourned pending the judicial holidays .", "From DATE until DATE , the case was adjourned at the request of the third applicant and his counsel for the preparation of the defence .", "DATE , the court further adjourned the trial at the request of the third applicant and his lawyers , in order to prepare the defence to a modified charge .", "From DATE , the parties were given an opportunity to reply to each other ’s questions .", "On DATE , DATE , DATE and DATE and DATE , CARDINAL and DATE , DATE and DATE to DATE , the trial was adjourned in view of the illness of CARDINAL or other of the defendants or their legal representatives .", "From DATE to DATE , the applicants made their final remarks before the trial court .", "During the trial , CARDINAL witnesses and CARDINAL purported victims had been questioned .", "According to information about the case submitted by the respondent Government , the proceedings involving NORP military personnel , including several accused who had fled and whose extradition was refused by the GPE , were still pending on DATE . Moreover , CARDINAL people who had suffered damage as a result of the NORP military intervention in DATE have applied for compensation .", "DATE . On DATE ORG adopted a judgment in the case , consisting of CARDINAL pages . The applicants and their official defence counsel were present at the hearing .", "In its judgment ORG mentioned the historical and political background to the case ( see paragraphs CARDINAL above ) , underlining that the ORG and ORG had been opposed to the democratisation of public life in GPE , and had only sought to maintain the status quo of NORP rule . During the period in question , from the LAW on the Re - establishment of ORG until the failed GPE coup of DATE , the ORG had been a very powerful organisation in view of its control over NORP security and the interior , as well as the military forces stationed on the territory of GPE and elsewhere . The ORG had used ORG to support its policing and military capabilities in GPE , targeted at stripping the legitimate Government of GPE of its powers . The ORG and ORG , being aware that their ideas were supported by only a small minority of the NORP population , had made attempts violently to overthrow the democratic regime . The applicants , the then senior executives of ORG , were found personally to have taken decisions or engaged in acts attesting to their involvement in the attempted coups . In particular , the following acts of the applicants were established by the trial court :", "( i ) The first applicant had occupied the position of Secretary of ORG of ORG ; the second applicant had been a member of ORG of the CPL / CPSU and Director of the radio station “ NORP GPE ” ; the third applicant had been First Secretary of ORG of ORG .", "( ii ) On DATE ORG had founded the “ ORG ” ( ORG piliečių komitetas ) , with the aim of stripping ORG of its powers , disobeying legislation passed by ORG , and reinstating the force of LAW and other NORP laws . The first and the third applicants had been members of the presidium of ORG .", "( iii ) On DATE , on the initiative of the third applicant , the “ ORG ” ( ORG partinis komitetas ) had been founded for the purpose of creating independent police units under the authority of ORG .", "( iv ) In DATE , on the initiative of the third applicant and other members of ORG , the so - called “ ORG ” ( Laisvųjų verslininkų asociacija ) had been created with the aim of co - ordinating the activities of the GPE economic structures based in GPE , as an alternative to the acting Government of GPE .", "( v ) In DATE the applicants had established the radio station “ NORP GPE ” on the premises of ORG , forcibly occupied by NORP troops .", "( vi ) On DATE the “ ORG ” had established “ Workers’ ORG ” ( darbininkų draugovės ) , their publicly proclaimed goal being “ to disobey unlawful forcible acts [ aimed at ] liquidating the socialist regime and unlawfully separating GPE from the GPE ” .", "( vii ) On DATE ORG had organised the “ ORG ” ( NORP demokratinių jėgų kongresas ) , the third applicant being its President .", "( viii ) In DATE the third applicant had presented to his ORG superiors in GPE a plan for “ GPE Presidential Rule ” in GPE . The third applicant had also been involved in organising various meetings and strikes in order to achieve the execution of that plan . Following which , on DATE President PERSON publicly required ORG to “ reinstate immediately the legal force of the GPE and ORG in GPE . ”", "( ix ) On DATE ORG had sent an ultimatum to ORG , ordering it to comply with the declaration of the GPE President . Failing that , ORG had announced that it would create the “ ORG ” ( NORP nacionalinio gelbėjimo komitetas ) , “ which would take care of matters concerning the future of the ORG . ”", "( x ) In addition to the ultimatum of DATE , ORG had made CARDINAL public declarations during the period from DATE , urging the forceful overthrow of the Government and the other authorities of independent GPE . The first and the third applicants had been responsible for preparing those declarations , whilst the second applicant had been responsible for disseminating them in the media .", "( xi ) During the NORP ORG ’s invasion of the NORP public media headquarters and other buildings in GPE from DATE ( see paragraph CARDINAL above ) , the third applicant had actively collaborated with the ORG and the GPE authorities , inciting them to use military force , with the help of vigilantes , against the unarmed civilian population which had assembled to defend NORP independence around these buildings . The third applicant had therefore been an accomplice of the officers of ORG , who had murdered CARDINAL NORP civilians , severely injured QUANTITY people , and caused medium or mild bodily harm to QUANTITY persons . All the victims and the types of the injuries sustained during the confrontations during TIME DATE were listed in detail in the judgment . The applicants were also convicted in respect of the unlawful occupation of LOC .", "( xii ) CARDINAL of the applicants’ co - defendants , PERSON , had been considered to be the founder of and main participant in ORG , which had been particularly active during the attempted coup of DATE . The first and the second applicants had also been held to have participated in the activities of this ORG by disseminating various public declarations on its behalf through the radio station “ NORP GPE ” . Those declarations had urged the forceful overthrow of the legitimate Government of GPE .", "( xiii ) On DATE ORG had adopted a decision on the so - called ORG , declaring its creation and actions to be “ anti - constitutional , subversive and thus illegal . ”", "( xiv ) Following the events of DATE , the applicants had continued unlawfully to occupy several buildings with the assistance of ORG , including the NORP public television and media headquarters in GPE .", "( xv ) On DATE the ORG had unsuccessfully tried to organise a referendum on GPE ’s stay within the GPE , the third applicant having been particularly active in the matter .", "( xvi ) The applicants had continued their subversive activities within ORG up until the failed GPE coup in DATE .", "( xvii ) ORG was thus recognised as an anti - state organisation within the meaning of LAW as then in force ( see paragraph CARDINAL below ) . Similarly , ORG , ORG , ORG , the radio station “ NORP GPE ” , ORG , ORG and ORG were also recognised as such organisations , ORG having set up or controlled all of them .", "( xviii ) As regards the first applicant , the court concluded that , in his capacity as the Secretary of ORG of ORG , he had publicly urged the forceful overthrow of the lawful Government of GPE and the abolition of the sovereignty of ORG , between the LAW on the Re - establishment of ORG and the failed coup in GPE in DATE . It was also found that the first applicant had obstructed the functioning of the democratically created institutions of independent GPE , and had participated in the activities of the anti - state organisations mentioned above .", "The first applicant was convicted of offences under LAW of the then LAW ( publicly urging the forceful overthrow of the sovereignty of the State ) and LAW ( the creation of and participation in the activities of anti - state organisations ) . He was sentenced to CARDINAL years’ imprisonment .", "As regards the second applicant , the court concluded that , in his capacity as a member of ORG of the CPL / CPSU and Director of the radio station “ NORP GPE ” , he had participated in the activities of anti - state organisations DATE and DATE . He had been responsible for broadcasting various transmissions , urging inter alia the forceful overthrow of the lawful Government of GPE and the abolition of the sovereignty of ORG .", "The second applicant was convicted of an offence under the then LAW and sentenced to CARDINAL years’ imprisonment . He was acquitted of sabotage ( LAW ) .", "As regards the third applicant , the trial court concluded that , in his capacity as First Secretary of ORG of ORG , he had participated in the activities of anti - state organisations , and had obstructed the functioning of the institutions of independent GPE DATE and DATE . He had also publicly urged the forcible overthrow of the lawful Government of GPE and the abolition of the sovereignty of ORG . It was further found that he had urged that NORP troops be used against the unarmed civilian population during the events of DATE , thus being responsible for the death of and injuries to the victims of those events .", "The third applicant was convicted of offences under Articles DATE and CARDINAL of LAW . He was also convicted of complicity in aggravated murder and causing various types of bodily harm during the events of DATE ( Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL , in conjunction with LAW as then in force ) . He was sentenced to CARDINAL years’ imprisonment , but acquitted of sabotage .", "The other CARDINAL co - defendants were also convicted .", "On DATE ORG amended the applicants’ conviction under LAW insofar as it related to their activities in ORG and its subsidiary organisations DATE and DATE . ORG found that , prior to the legislative amendment of DATE , LAW dealt with the activities of anti - NORP organisations , and could not be applied by analogy to the activities of anti - NORP organisations . However , in view of the legislative amendment , criminal responsibility was thereafter clearly established by Article CARDINAL for actions directed against the sovereignty of ORG ( see paragraph CARDINAL below ) . The court therefore held that the domestic criminal law did not provide for criminal responsibility on the ground of the ORG membership of ORG until DATE , and that they could only be convicted for their activities within that party and other anti - state organisations after that date .", "The appellate court also quashed the third applicant ’s conviction insofar as it related to complicity in causing medium and mild bodily harm ( Articles CARDINAL and CARDINAL of the then Criminal Code , in conjunction with LAW ) in view of the expiry of the statutory time - limit for bringing criminal proceedings in respect of those offences . His conviction remained insofar as it related to his being an accomplice to aggravated murder and causing serious bodily harm ( Articles CARDINAL and CARDINAL of the then Criminal Code , in conjunction with Article CARDINAL ) .", "The first and the third applicants’ convictions under LAW of the LAW and their sentences remained unchanged . The second applicant ’s sentence was reduced to DATE and CARDINAL months’ imprisonment .", "The Court of Appeal otherwise confirmed a substantial part of the first instance court ’s findings and held that , under international law , the new Government of GPE had had legitimate authority as of DATE over the territory of GPE , and that the occupation and annexation by GPE for DATE had been annulled as of DATE . The later recognition of this fact by foreign States merely acknowledged the existing reality . The fact that it took the new Government time to replace the previous NORP structures of the ORG did not imply any continued dependence on the GPE . However , the applicants , being leading anti - state activists and communist party executives , had unlawfully sought to overturn ORG and re - instate NORP power .", "On DATE ORG dismissed the ORG cassation appeals . That decision was final .", "The first applicant ’s attempts to obtain release on licence were to no avail . It seems he was eventually released on DATE . On an unspecified date the second applicant was also released from prison after having served his sentence . The third applicant was released on DATE .", "The Act on the Re - establishment of ORG was worded as follows :", "“ ORG , expressing the will of the Nation , decrees and solemnly proclaims that the execution of the sovereign powers of ORG , abolished by a foreign force in DATE , is re - established , and henceforth GPE is again an independent ORG .", "The Act of Independence of DATE of ORG [ ORG ] of CARDINAL DATE on the re - established democratic State of GPE have never lost their legal effect , and constitute the constitutional foundation of ORG .", "The territory of ORG is whole and indivisible , no constitution of another State being effective on it .", "The State of GPE stresses its adherence to the universally recognised principles of international law , recognises the principle of the inviolability of borders , as formulated in LAW of the Helsinki Conference on Security and Co - operation in LOC of DATE , and guarantees human , civic and ethnic community rights .", "ORG , expressing sovereign power , by this LAW begins to realise full State sovereignty . ”", "On DATE , by the PERSON on the Re - instatement of LAW of CARDINAL DATE , ORG restored certain essential provisions of the original NORP LAW , thereby discontinuing the effect of LAW of DATE and LAW of DATE .", "On DATE ORG adopted LAW pagrindinis įstatymas ) , setting out the constitutional principles of the newly restored ORG of GPE . In particular , this PERSON referred to GPE as a sovereign democratic republic , the power being vested in the people and exercised by ORG , the ORG and the judiciary . Moreover , it provided that all earlier laws and legal acts continued to be in force as long as they were not incompatible with the new LAW . It remained valid ORG until DATE .", "On DATE ORG decided that all the authorities of the GPE and the ORG and any public institution on the territory of GPE fell under the jurisdiction of GPE . By these provisions , as well as by LAW of DATE , ORG were empowered to exercise full control over all institutions on the territory of the country .", "On DATE ORG . CARDINAL - CARDINAL suspending the implementation of acts and decisions originating in the laws passed on DATE , subject to and pending official negotiations with the GPE . The ORG was to come into effect at the start of negotiations . However , by ORG No . CARDINAL dated DATE , it was declared null and void with immediate effect .", "DATE . It was replaced by a Statement of CARDINAL DATE , announcing a DATE extendable moratorium on the LAW on the Re - establishment of ORG , and the legal acts stemming from that legislation , to start when negotiations with the GPE would be underway :", "“ ORG ,", "Expressing and continuing to express the sovereign powers of ORG , re - establishing the independent ORG GPE , and seeking interstate negotiations between GPE and ORG for the purpose of the execution of all those powers ,", "Declares , from the start of such negotiations , a moratorium of DATE on the LAW on the Re - establishment of an ORG of GPE ; that is , it suspends the legal actions stemming from that LAW .", "The start of negotiations between GPE and the GPE , their aims and conditions , shall be determined by a special protocol of the parties’ authorised delegations .", "ORG can extend the moratorium or revoke it . The moratorium automatically loses force with the breakdown of negotiations .", "If , as a result of any other events or circumstances , ... ORG will not be able to execute normally the functions of ORG government , the moratorium will lose force at the same time . ”", "On DATE ORG adopted the Law on Political Parties , which confirmed that the political parties of other GPE and parties operating outside the framework of LAW would be considered illegal . LAW provided that such parties could not obtain the necessary registration . Political parties would be accepted for registration only in “ the interests of the consolidation of the independent and democratic State of GPE ” .", "On DATE the Statement ( moratorium ) of CARDINAL DATE was denounced by ORG , and was not referred to again in official documents . Taking into account the fact that the GPE delegation did not agree to sign a protocol for the start of interstate negotiations , ORG renounced the principles laid down for that procedure , including the conditional moratorium . It envisaged the possibility that negotiations could nevertheless start without signing a protocol , but only if the sovereignty of ORG were not violated .", "In view of the response given by the majority of the NORP population in a nation wide referendum , on DATE ORG adopted a law stating that the notion that the “ NORP State is an independent and democratic republic ” was a basic constitutional principle .", "On DATE ORG adopted a decision “ on the so - called ORG ” , in which it declared its creation and actions to be “ anti - constitutional , subversive and thus illegal . ”", "On CARDINAL DATE ORG adopted a decision confirming the illegality of ORG .", "The applicants were convicted under LAW which had been adopted by ORG on DATE , and which continued to apply to the territory of GPE , with numerous amendments , until the entry into force of a new LAW on CARDINAL DATE .", "On the basis of LAW DATE , the provisions of LAW ( hereafter the “ LOC ) were deemed to apply following the re - establishment of GPE ’s independence as long as those provisions were compatible with that legislation ( see paragraph CARDINAL above ) .", "DATE . DATE dealt with issues of complicity .", "Article CARDINAL of the ORG punished anti - NORP agitation and propaganda . It penalised , inter alia , especially serious crimes against GPE and the propagation of NORP , defamatory fiction . By a legislative amendment of CARDINAL DATE , which came into force on DATE , Article CARDINAL of the ORG was rephrased , specifying the criminalisation of acts directed against the sovereignty of GPE . Paragraph CARDINAL of that Article punished such acts , if committed at the request of a foreign ORG or organisation , with CARDINAL years’ imprisonment .", "Article CARDINAL of the ORG prohibited the creation of and active participation in anti - NORP organisations with a view to preparing or committing especially serious crimes against the ORG . Following the legislative amendment of DATE , LAW was rephrased to prohibit participation in acts aimed at disturbing the public or social order established by LAW ) , to limit the sovereign powers of ORG or to separate any part of its territory by force .", "Prior to these amendments to LAW , on DATE the PERSON on the Rehabilitation of Persons Repressed for Resistance to the Former Occupying Regimes was adopted by ORG . Thereby those persons who had been convicted under the previous anti - NORP version of Articles DATE and CARDINAL of the ORG were declared innocent in the eyes of GPE and their civil rights restored to them .", "Article CARDINAL of the ORG punished acts of aggravated murder .", "Article CARDINAL of the ORG punished acts causing serious bodily harm .", "ORG monitored the Human Rights situation in GPE , which process included a visit by a delegation to that country and a meeting with the third applicant in FAC . The Rapporteur commented afterwards in his report of DATE ( AS / PERSON ) that :", "“ CARDINAL . The main conclusion to be drawn is that justice can not be used as a means of mastering recent history , concerning which very little research exists . There is a great danger of inspiring and feeding a desire for revenge in the national conscious and unconscious , thus bringing about new injustices .", "For example , it is impossible to determine the degree of independence , and hence the responsibility , of a provincial NORP party leader before historical research has been done to assess the decision - making autonomy and the real powers of such an official under the NORP party system that prevailed in the former GPE . ”" ]

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[ "10", "11", "14", "6", "7", "9" ]

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[ "The applicant said that his name was PERSON and that he was born in DATE in GPE ( GPE ) . However , according to ORG ( Oberlandesgericht ) , his real name was PERSON and he was born in DATE in GPE ( GPE ) .", "On DATE the applicant , who had enjoyed political refugee status in GPE since DATE , was arrested at the NORP border on suspicion of being a member of a terrorist organisation ( Article CARDINALa of LAW ) and of forging documents ( LAW ) .", "On DATE the investigating judge at ORG ( ORG ) issued a warrant for the applicant 's detention pending trial . The applicant remained in custody until DATE .", "On DATE ORG started a judicial investigation into the activities of the applicant and CARDINAL other leaders of the ORG ( ORG of Kurdistan ) .", "NORP On DATE ORG of ORG made an order for the main proceedings , which included CARDINAL other charges against members of the ORG , to begin .", "The proceedings had been brought against DATE accused and concerned CARDINAL murders and CARDINAL abductions , the structure of the terrorist organisation and a further CARDINAL murders that had been committed within the organisation .", "The trial began on DATE and ended on DATE after DATE in court .", "At the hearing on DATE the public prosecutor asked ORG to inform the applicant , in accordance with LAW , that the charges he was facing could entail a conviction for murder ( LAW ) and for his activities as a leader ( PERSON ) of a terrorist organisation ( LAW ) .", "By a decision of DATE , ORG ruled that the accused , PERSON , faced convictions for being a member of a terrorist organisation and for murder , but not for his activities as a leader of that organisation .", "CARDINAL defendants were no longer involved in the proceedings : CARDINAL defendants had been discharged in DATE CARDINAL owing to the minor nature of the charges ( PERSON ) , the other because of unfitness to stand trial ( PERSON ) DATE while in DATE CARDINAL others had fled the country and CARDINAL had been convicted of separate offences .", "...", "While the applicant was in detention pending trial , his correspondence with his lawyer was monitored under powers contained in Article CARDINAL § CARDINAL of LAW ...", "NORP In a CARDINAL-page judgment of DATE ORG convicted the applicant of being a member of a terrorist organisation and sentenced him to DATE imprisonment ( LAW ) . It found that he had been one of the founders of the ORG in DATE , had set up units in GPE and GPE and had been in charge of recruitment in those countries .", "It added that in DATE the applicant had led armed resistance in GPE until he was deposed by PERSON , after being accused of incompetence and authoritarianism . Subsequently he had been assigned to the ORG 's NORP headquarters in GPE with PERSON , who was later to become the main prosecution witness ( GPE ) against him .", "ORG said that from DATE the applicant had been a member of the executive committee of the ORG , with responsibilities for , inter alia , surveillance and intelligence . At executive committee meetings he had proposed to identify and collect information on groups within the ORG that were hostile to Öcalan , to combat them , liquidating them if necessary . He had also helped to compile lists of persons to be liquidated .", "In a judgment of DATE ORG dismissed the applicant 's appeal , holding that the judgment of ORG did not contain any errors of law that had operated to his detriment .", "On DATE the applicant lodged a constitutional appeal with ORG ( Bundesverfassungsgericht ) , in which he alleged in particular a violation of LAW on the ground that he had not been brought to trial within a reasonable time , and that his correspondence had been monitored unlawfully .", "On DATE a CARDINAL - member committee of ORG refused to examine the appeal .", "...", "Article CARDINAL § CARDINAL of the Code of Criminal Procedure lays down that remand prisoners may communicate in writing and orally with their lawyers .", "The first sentence of Article CARDINAL § CARDINAL of LAW reads as follows :", "“ If the accused is in custody and the investigation concerns an offence under LAW [ membership of a terrorist organisation ] , access to written or other documents must be refused unless the sender agrees to their first being examined by a judge ... In cases in which correspondence has to be monitored ... adequate measures shall be taken to avoid written or other documents being handed over at meetings between prisoners and their lawyers . ”", "The purpose of the exception set out in Article CARDINAL § CARDINAL of LAW is to prevent prisoners suspected of an offence under LAW from continuing to work for the terrorist organisation to which it is alleged they belong and contributing to its survival ( ORG , ORG no . CARDINAL , p. CARDINAL ) .", "Article CARDINALa of the Code of Criminal Procedure provides that the judge with responsibility for such surveillance measures is the judge of the district court where the prison is located and that he or she shall not have , and may not be assigned , conduct of the investigation and shall keep the information thus obtained confidential , unless it concerns a serious or very serious offence , such as an offence under LAW CARDINAL or CARDINAL of LAW ." ]

[ "5" ]

[ "5-3" ]

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[ "8" ]

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[ "The applicant , Mr PERSON , was born in DATE and lives in GPE ( GPE ) . He has double nationality ( NORP and NORP ) .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE the applicant was arrested in GPE in execution of a warrant issued by ORG on DATE . The applicant had been sentenced in GPE to DATE months’ imprisonment for drug smuggling and money laundering .", "A hearing before ORG was scheduled for DATE . On that occasion the applicant was assisted by a lawyer and an interpreter .", "By an order of DATE , ORG validated the applicant ’s arrest and placed him in detention with a view to extradition . It observed that the NORP authorities had declared their intention to apply for the applicant ’s extradition according to LAW between GPE and GPE ( signed on DATE and ratified by NORP law n CARDINAL of CARDINAL DATE ) . Taking into account the fact that the applicant had absconded for DATE , ORG considered that a restrictive measure was necessary to prevent him from fleeing pending trial . This decision was served on the applicant on DATE in its NORP version only .", "In the meantime , on DATE , the applicant was heard by a magistrate of ORG . He declared that he did not accept extradition to GPE .", "On DATE the applicant personally introduced a claim for immediate release before ORG . This claim , drafted in NORP , was based on LAW , according to which the provisional arrest of a person to be extradited should be revoked if an extradition request was not lodged with the competent executive authority within DATE time - limit .", "By an order of DATE , ORG dismissed the applicant ’s claim . It observed that on DATE the NORP authorities had filed with ORG a request for the applicant ’s extradition . The time - limit laid down in Article PERSON of LAW had therefore been complied with . This order was served on the applicant on DATE .", "On DATE the applicant appealed on points of law . He alleged that the term “ executive authority ” contained in LAW could not be understood as a reference to ORG , and considered that the request for his extradition should have been lodged with ORG or with ORG itself . He also maintained that there was no evidence that the extradition had actually been requested .", "The result of this appeal is not known .", "On CARDINAL , CARDINAL , DATE , DATE and DATE , as well as on DATE , DATE and DATE , the applicant personally lodged a number of claims , drafted in LANGUAGE , with ORG . Invoking inter alia LAW , CARDINAL § CARDINAL , QUANTITY ( a ) and ( d ) of the LAW , he alleged that his arrest and detention were tantamount to torture or inhuman treatment , that none of the official documents concerning his deprivation of liberty had been translated into LANGUAGE and that he should be immediately released . He also observed that the doctor attached to the prison was unable to deal with his nerve , back and chronic ulcer problems and requested a visit from a specialised doctor , assisted by an interpreter , or a transfer to a private hospital for clinical tests . The applicant also requested the attendance and examination of a number of witnesses who could have testified that GPE wished to punish him by reason of his political beliefs .", "On DATE the applicant , relying inter alia on Articles CARDINAL § CARDINAL ( b ) , ( c ) and ( e ) and CARDINAL of the Convention , requested permission to defend himself in person , to have adequate time and facilities for the preparation of his defence , to have the free assistance of an interpreter and not to be discriminated against on grounds of language and national origin .", "By an order of CARDINAL DATE , ORG declared the applicant ’s claims inadmissible as they had been drafted in a foreign language . It observed that , according to the relevant provisions of LAW ( hereinafter the “ ORG ” ) , a person should be assisted by an interpreter at the trial hearing and that the only material which should be translated was that addressed to the person to be extradited or made in front of him or her by the authorities . No free translation was provided when , as in the present case , the person to be extradited was addressing , almost on a DATE basis , various different claims to the judicial authorities . In any case , the person to be extradited was entitled , under NORP law , to the assistance of an NORP - speaking lawyer and/or to the consular assistance of his or her own ORG . On DATE this decision was served on the applicant in its NORP and LANGUAGE versions .", "On DATE the applicant appealed on points of law to ORG against the order of CARDINAL DATE , which he considered to be discriminatory in nature and based on a misinterpretation of the ORG and the Convention . He also alleged that he had never been offered consular assistance from ORG . The result of this appeal is not known .", "In the meantime , on DATE the applicant personally introduced a claim , drafted in NORP , before ORG . He requested the appointment of a lawyer , the assistance of an interpreter and the translation of LAW ( hereinafter , the “ CC ” ) , of the ORG and of all the documents received up to then .", "By an order of DATE , ORG rejected this claim , pointing out that the applicant had already been provided with an LANGUAGE translation of all the relevant legal acts and that an interpreter had been appointed for the hearing on extradition scheduled for DATE . It also observed that the applicant was already assisted by a lawyer of his own choosing , who had a thorough knowledge of the NORP language . NORP law did not provide for the translation of the ORG or the ORG . This decision was served on the applicant in LANGUAGE .", "The hearing scheduled for DATE was postponed . On DATE , ORG requested the NORP authorities to provide evidence showing that the charges against the applicant were not time - barred .", "The hearing on the extradition request before ORG was scheduled for DATE . A copy of the summons for trial was served on the applicant in its LANGUAGE version . At the public hearing the applicant declared that the real aim of the extradition was to persecute him because of his political opinions .", "By a judgment of DATE , filed with the registry on CARDINAL DATE , ORG ruled in favour of the applicant ’s extradition in relation to the charge of financial transaction of goods originating from drug trafficking . It observed that the applicant had been convicted in GPE ( on the basis , inter alia , of his confession ) only for that crime and not , as wrongly indicated in the order of DATE , for drug trafficking . As to the merits of the request , ORG noted that , according to the relevant provisions of LAW , the NORP authorities had provided a copy of the applicant ’s conviction and of the subsequent warrant for his arrest , a full description of the facts for which the extradition was requested and of their legal qualification in the NORP system . Moreover , nothing in the file showed that the extradition was aimed at persecuting the applicant on racial , religious or political grounds . As regards the alleged time - bar on the charge , it appeared from the documents produced by the NORP authorities that GPE law prohibited the execution of a penalty only if the formal accusation was made DATE after the date on which the offence had allegedly been committed . However , the crime for which the applicant ’s extradition was requested had been committed on DATE , while the formal indictment had been issued on DATE . Therefore , the DATE time - limit had not expired .", "On DATE , this judgment was served on the applicant in its NORP and LANGUAGE versions .", "The applicant appealed on points of law .", "By an order of DATE , ORG scheduled the hearing for DATE and appointed a legal representative . This order was served on the applicant in NORP on DATE .", "On DATE the applicant requested ORG to appoint an interpreter for the hearing of DATE . The proceedings were subsequently adjourned until DATE . The applicant alleges that on that date he was refused the assistance of a lawyer and/or of an interpreter .", "By a judgment of DATE , ORG rejected the applicant ’s appeal .", "On DATE the applicant requested ORG to declare that the extradition procedure was null and void , as he had been denied the assistance of a legal representative and an interpreter . The result of this claim is not known .", "On DATE ORG granted the GPE extradition request .", "On DATE the applicant was extradited to GPE , where he was imprisoned until DATE , having served his sentence with remission ." ]

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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 A.R.", "In a registered letter of CARDINAL DATE , the applicant informed the tenant that he intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .", "In a writ served on the tenant on CARDINAL DATE , the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before ORG .", "By a decision of CARDINAL DATE , which was made enforceable on CARDINAL DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .", "On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for himself .", "On DATE , the applicant served notice on the tenant requiring her to vacate the premises .", "On DATE he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on CARDINAL DATE .", "DATE and DATE the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .", "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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[ "The applicant , Mr Vyacheslav PERSON , is a NORP national who was born in DATE and lives in ORG . The respondent Government were represented by their ORG , PERSON and Mr Y. GPE .", "On DATE ORG ( Новогродівський міський суд PERSON області ) awarded the applicant CARDINAL hryvnyas ( ORG ) in salary arrears against the private company СJSC “ Vuglevydobutok ” ( “ the Company , ” GPE акціонерне товариство “ Вуглевидобуток ” ) . This judgment was not appealed against and became final in DATE .", "On DATE ORG ( “ ORG , ” PERSON державної виконавчої служби PERSON міського управління юстиції PERSON області ) refused to initiate the enforcement proceedings owing to the lack of territorial jurisdiction and instructed the applicant to apply to ORG ( “ PERSON , ” PERSON державної виконавчої служби LOC міського управління юстиції PERSON області ) .", "Having never submitted the enforcement writ to ORG , the applicant appealed to court , alleging that the institution of the enforcement proceedings in PERSON would have been futile , as the ORG ’s major assets were located in ORG .", "On DATE ORG rejected these claims , having noted that that the ORG ’s headquarters were located in PERSON and that contrary to the applicant ’s assertions it had no assets in ORG .", "On DATE the ORG ( the “ ORG ” , PERSON суд PERSON області ) upheld this judgment .", "On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .", "On DATE the Donetsk Regional Commercial Court ( Господарський суд PERSON області ) initiated bankruptcy proceedings against the Company and on DATE declared it bankrupt , having appointed Mr L. as a trustee to run the liquidation program .", "On DATE the applicant re - submitted the enforcement writ to ORG , who returned it instantly , having instructed the applicant to submit it to the trustee in bankruptcy .", "On an unspecified date the applicant requested the ORG to facilitate the enforcement of the judgment given in his favour .", "On DATE the applicant challenged the trustee ’s alleged omissions in enforcing the judgment before ORG . On DATE the court rejected his complaints . It found that the trustee had acted in good faith , but the enforcement was impeded by the ORG ’s lack of funds , caused , inter alia , by the failure of the ORG and the ORG - owned mining companies ( ДВАТ шахта “ GPE CARDINAL ” and ДВАТ шахта “ ORG ” ) to pay off their debts .", "On DATE the ORG of Appeal quashed this judgment and remitted the case for a fresh consideration , having found that the first - instance court ’s analysis was superficial and unsupported by documentary evidence .", "The ORG has no further information about the proceedings .", "As of DATE the judgment of CARDINAL DATE remained unenforced .", "The relevant domestic law is summarised in the judgments of ORG v. GPE no . CARDINAL , § § CARDINAL , DATE and ORG v. GPE , no . GPE , § § CARDINAL - CARDINAL , CARDINAL DATE ) ." ]

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[ "The applicant was born in DATE and lives in Lohne . He is a dentist and member of ORG ( ORG ) ( “ the ORG ” ) , the self - governing body of the contractual dentists practising in GPE . The ORG is responsible for , inter alia , entering into contracts with public health insurers on behalf of its members , checking costs claimed by its members , distributing reimbursements for contractual work paid by public health insurers , and allocating the effects of austerity measures in the public health sector among its members .", "On DATE the applicant brought an action against ORG , a public health insurance company , before ORG ( “ the ORG ” ) , seeking assistance in the institution of compensation proceedings for alleged mistreatment of his mother during hospitalisation preceding her death caused by cardiac arrest at DATE .", "On DATE ORG dismissed the action .", "On DATE the applicant appealed . ORG ( “ ORG of appeal ” ) held oral hearings on DATE and on DATE . It dismissed the appeal on the last - mentioned date , holding that the respondent had sufficiently assisted the applicant by commissioning an expert opinion and declaring the applicant 's further complaints inadmissible because they had not been raised before ORG .", "On CARDINAL DATE the applicant lodged a constitutional complaint .", "On DATE ORG declared the applicant 's constitutional complaint inadmissible without giving further reasons ( CARDINAL BvR CARDINAL/CARDINAL ) .", "On DATE the ORG determined the applicant 's remuneration as a contractual dentist for DATE .", "On DATE the applicant made an unsuccessful administrative complaint .", "On DATE he brought an action against the ORG before ORG which suspended the proceedings at the parties ' request on DATE .", "On DATE the ORG modified the impugned decision , stipulating that the applicant was entitled to PERSON ( ORG ) of the DEM CARDINAL,CARDINAL.CARDINAL claimed .", "On DATE ORG dismissed the action after having rescheduled an oral hearing at the applicant 's request . The applicant 's requests for rectifications of the judgment and the transcript of the hearing were to no avail . His attempts to institute criminal proceedings against the presiding judge were unsuccessful .", "On DATE ORG dismissed the applicant 's appeal .", "Furthermore , the applicant unsuccessfully pursued inactivity and constitutional complaint proceedings before ORG and ORG .", "On DATE the ORG determined the applicant 's remuneration as a contractual dentist for DATE , stipulating that he was entitled to CARDINAL,CARDINAL.CARDINAL MONEY ( ORG ) of the ORG CARDINAL,CARDINAL.CARDINAL claimed .", "On DATE the applicant made an unsuccessful administrative complaint .", "On DATE he brought an action against the ORG before ORG , which rejected the claim on DATE .", "The applicant appealed before ORG .", "On DATE ORG declared the applicant 's constitutional complaint that ORG had taken no action manifestly inadmissible as clearly insufficiently substantiated and imposed a fine of ORG CARDINAL,CARDINAL for abuse of process ( CARDINAL BvR CARDINAL/CARDINAL ) .", "On DATE ORG dismissed the applicant 's request for rectification ; the applicant 's appeal against that decision was to no avail .", "On DATE ORG dismissed the applicant 's appeal .", "On DATE the ORG provisionally determined the applicant 's remuneration as a contractual dentist for DATE . According to the decision the applicant was entitled to DEM CARDINAL,CARDINAL.CARDINAL of the DEM CARDINAL,CARDINAL.CARDINAL claimed .", "On DATE the applicant made an unsuccessful administrative complaint .", "On DATE he brought an action against the ORG before ORG , which granted the action in part on DATE .", "On DATE the applicant appealed before ORG .", "On DATE the ORG rendered a final decision which supplanted the impugned decision .", "On DATE ORG dismissed the appeal . On DATE , DATE and CARDINAL DATE ORG dismissed challenges for bias against CARDINAL of its judges ; the applicant 's appeals for the right to be heard against these decisions were to no avail . On DATE ORG dismissed the applicant 's requests for rectification of the judgment and the transcripts .", "On DATE ORG refused leave to appeal on points of law .", "On DATE the ORG , in applying a decision of its council on the allocation of the effects of austerity measures for contractual dentists among its members , provisionally deducted DEM CARDINAL,CARDINAL.CARDINAL from the amount claimed by the applicant in respect of his remuneration as a contractual dentist for DATE .", "On DATE the applicant made an unsuccessful administrative complaint .", "On DATE he brought an action against the ORG before ORG which was dismissed on DATE .", "On DATE the applicant appealed before ORG .", "On DATE the ORG amended the impugned decision .", "On DATE ORG suggested a friendly settlement .", "On DATE the ORG replaced the impugned decision .", "On DATE ORG dismissed the appeal as inadmissible . On DATE it dismissed the applicant 's request for rectification and as inadmissible the applicant 's appeal for the right to be heard . The applicant 's challenges for bias against CARDINAL judges were unsuccessful , as were his appeals for the right to be heard against these decisions .", "On DATE ORG refused leave to appeal on points of law .", "On DATE the ORG provisionally determined the applicant 's remuneration as a contractual dentist for DATE , stipulating that he was entitled to DEM CARDINAL,CARDINAL.CARDINAL of the DEM CARDINAL,CARDINAL.CARDINAL claimed .", "On DATE the applicant made an unsuccessful administrative complaint .", "On DATE he brought an action against the ORG before ORG which was dismissed on DATE .", "On DATE the applicant appealed before ORG , which dismissed the applicant 's appeal on DATE .", "On DATE the ORG provisionally determined the applicant 's remuneration as a contractual dentist for DATE , stipulating that he was entitled to DEM CARDINAL,CARDINAL.CARDINAL of the DEM CARDINAL,CARDINAL.CARDINAL claimed .", "On DATE the applicant made an unsuccessful administrative complaint .", "On DATE he brought an action against the ORG before ORG which was dismissed on DATE .", "The applicant appealed before ORG . On DATE ORG stayed the proceedings and resumed them on DATE . On CARDINAL DATE it dismissed the applicant 's appeal .", "On DATE the ORG dismissed the applicant 's request for a hardship allowance for DATE .", "DATE . On DATE the applicant made an unsuccessful administrative complaint .", "On DATE the applicant brought an action against the ORG before ORG , which dismissed the action on DATE .", "On DATE the applicant appealed before ORG , which dismissed the appeal on CARDINAL DATE , after having previously dismissed the applicant 's challenges for bias against CARDINAL judges and his appeals for the right to be heard against these decisions .", "On DATE the ORG determined the applicant 's remuneration as a contractual dentist for DATE .", "On an unspecified date the applicant made an administrative complaint which was dismissed on DATE .", "On DATE the applicant brought an action against the ORG before ORG , which dismissed the action on DATE .", "On DATE ORG declared the applicant 's constitutional complaint that ORG had taken no action manifestly inadmissible as clearly insufficiently substantiated , and imposed a fine of ORG CARDINAL for abuse of process ( CARDINAL BvR CARDINAL/CARDINAL ) .", "On DATE ORG dismissed the applicant 's request for rectification ; his appeal against that decision was to no avail .", "On DATE ORG dismissed the applicant 's appeal against the judgment of CARDINAL DATE .", "On DATE the ORG determined the applicant 's remuneration as a contractual dentist for DATE . According to the decision the applicant was entitled to payment of ORG CARDINAL,CARDINAL.CARDINAL of the ORG CARDINAL,CARDINAL.CARDINAL claimed .", "On DATE the applicant made an unsuccessful administrative complaint .", "On DATE he brought an action against the ORG before ORG , which dismissed the action on DATE .", "On DATE ORG declared the applicant 's constitutional complaint that ORG had taken no action manifestly inadmissible as clearly insufficiently substantiated and imposed a fine of ORG CARDINAL,CARDINAL for abuse of process ( CARDINAL BvR CARDINAL/CARDINAL ) .", "On DATE ORG dismissed the applicant 's request for rectification ; the applicant 's appeal against that decision was to no avail .", "On DATE ORG dismissed the applicant 's appeal .", "On DATE the ORG determined the applicant 's remuneration as a contractual dentist for DATE , stipulating that he was entitled to ORG CARDINAL,CARDINAL.CARDINAL of the GPE claimed .", "On DATE the applicant made an unsuccessful administrative complaint . On DATE he brought an action against the ORG before ORG , which dismissed the action on DATE .", "On DATE ORG declared the applicant 's constitutional complaint that ORG had taken no action inadmissible , without giving further reasons ( CARDINAL BvR CARDINAL/CARDINAL ) .", "On DATE ORG dismissed the applicant 's request for rectification ; the applicant 's appeal against that decision was to no avail .", "DATE . On CARDINAL DATE ORG dismissed the applicant 's appeal ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and is currently in ORG after periods in other prisons , including PERSON . He is suffering from Aids , which he says he contracted in DATE , DATE before he was sent to prison .", "On DATE a warrant was issued for the applicant 's arrest in connection with a number of serious offences . On DATE ORG convicted him of murder , attempt , armed robbery , and the false imprisonment and kidnapping of minors aged DATE and of adults . It sentenced him to DATE imprisonment , of which a minimum of DATE were to be served . On DATE he received an DATE sentence from ORG for attempted escape from lawful custody and assault . On DATE ORG convicted him of false imprisonment followed by mutilation , murder and attempted armed robbery . It sentenced him to DATE imprisonment , with a minimum of DATE to be served .", "On DATE ORG of ORG ordered that the sentences imposed by the CARDINAL ORG should run concurrently in part , with the overall sentence not to exceed the statutory maximum of DATE . The minimum period to be served was increased to DATE . The applicant will now become eligible for parole on DATE .", "He has been held in various prisons . At the time his application was lodged , he had been in ORG since DATE .", "In DATE it was decided to transfer him to ORG on the grounds that : “ This transfer will enable family ties to be maintained with his partner , as the prisoner 's condition appears to warrant ” .", "According to information supplied by the ORG , the applicant lodged an application for a pardon on medical grounds on DATE with the support of an association called LAW Up . ORG asked ORG at ORG to appoint a medical expert to report on the applicant 's condition and life expectancy , and to advise whether his condition and current or foreseeable treatment were compatible with his detention in prison or in a special facility .", "The Government stated that the application was turned down on DATE , after the applicant had refused to agree to a medical examination or to allow the expert access to his records .", "While in FAC the applicant made an initial application for his sentence to be suspended under LAW , a provision that had only recently been introduced .", "The judge responsible for the execution of sentences ordered a medical report advising , inter alia , on the applicant 's condition , whether he was suffering from an illness that compromised his chances of survival and whether his condition was permanently incompatible with his continued detention .", "The expert , PERSON , lodged his report on DATE . After stating that the applicant had refused to undergo an examination and that the report was based solely on the medical records , he noted that the infection had spread and that the applicant 's condition had deteriorated , in particular because he had refused all treatment for DATE . He added :", "“ His condition necessitates his total , unfailing commitment to take his medication regularly and to undergo regular biological tests to assess how he is responding to treatment and whether the illness has been stabilised . All opportunistic infection must be warded off . The promiscuous nature of the prison environment makes it a source of such infection . The current increase in the viral load means that the prognosis is very poor and , and unless the patient responds to treatment , things may deteriorate very rapidly . ”", "Dr B. also noted that mentally the applicant was opposed to and refused all medical treatment and regular monitoring . He said in conclusion :", "“ Mr PERSON chances ( of survival ) can be regarded as compromised . While it is neither possible , nor realistic , to predict the future , the following remarks may be made on the basis of the information in the medical records :", "Despite having had no treatment for DATE and the increase in his viral load , Mr ORG has not had any major life - threatening problems of infection requiring highly specialised care in a special facility .", "The treatment Mr PERSON is required to take is oral , simple and can be administered in a prison environment . Monitoring is the responsibility of a medical team that is aware of the problem and composed of prison doctors and specialists in infectious diseases of the highest order .", "No one can safely predict what Mr PERSON attitude will be and whether he will agree to treatment in a particular environment .", "Although I have not been able to examine PERSON , having read the voluminous file and DATE medical records and having questioned prison staff , I consider that his condition is currently compatible with continued detention . It will always be possible , if he so wishes and if his symptoms worsen , for him to be re - examined at DATE , at which point the opinion of a psychiatrist should also be sought . ”", "Following his transfer to ORG , the applicant made a fresh application to ORG on DATE for an order suspending his sentence .", "In an order of CARDINAL DATE , the judge responsible for the execution of sentences requested medical reports from PERSON", "In his report of CARDINAL DATE , PERSON noted :", "“ Mr PERSON is carrying a serious disease : Aids . The diagnosis has been confirmed by the biological analyses ( serology , viral and lymphocyte TCARDINAL count ) and by the existence of other diseases , so called communal diseases , in association with HIV .", "The disease was contracted DATE . Mr PERSON himself says that it dates from DATE and openly admits that he refused treatment until DATE .", "The prognosis , whether in the short , medium or long - term , is grim . The specific treatment is onerous and can only be administered – with difficulty because the prisoner is uncooperative – in custody or in a relatively restrictive structure . This is the crux of the matter . In view of the seriousness of Mr PERSON condition and his disorders , which may be described as severe borderline syndrome , what is the solution ? On CARDINAL point , we entirely agree with the prisoner : he must be admitted to hospital for an assessment of the Aids position and its potential evolution and a check on the associated diseases : mycosis of the digestive tract , cutaneous mycosis , neuropathy and particularly tuberculosis . Although the tuberculosis appears to have been cured , in the United States Aids patients with tuberculosis are kept in permanent quarantine , as the NORP specialists consider that they are unable to cure tuberculosis in Aids patients and that the risk of infection is too high . That concern needs to be addressed .", "All things considered , Mr PERSON is able to tolerate detention in prison provided he is kept under strict medical supervision .", "Detention in a hospital would , however , be more compatible with his condition . Beyond the short term , that is to say the assessment of the potential evolution of the diseases , the question of compatibility will need to be reviewed , it being borne in mind that , since we are dealing with diseases that are severe , infectious and fatal , continued treatment outside the current setting would be risky . ”", "Dr F. said in conclusion :", "“ PERSON is receiving treatment for a confirmed case of Aids . He has also been treated for tuberculosis . These diseases , related illnesses ( mycosis , various infections , neuropathy ) and severe psychopathy require assessment and his admission to hospital .", "The treatment he is receiving in detention in PERSON is entirely appropriate , compatibility with detention is reasonable under medical supervision , but it would be more coherent for him to be treated in hospital . ”", "In his report of CARDINAL DATE , PERSON gave the following answers to questions he had been put by the judge :", "“ ... ORG Seriousness of the illness and prognosis", "PERSON has been infected by the Aids virus , category ORG under the GPE classification . He has had opportunistic complications that have been treated . He will shortly have been receiving treatment for DATE , starting with a bitherapy which proved ineffective after DATE followed by tritherapy , which was effective , but was suspended DATE in DATE owing to neurological complications .", "DATE he began quadritherapy in GPE but stopped taking his medication for a period of DATE .", "He resumed treatment in DATE following the reappearance of adenopathy and a genital infection , but this has produced no results as he has refused treatment since DATE . Since his transfer to PERSON , the situation has got worse and the level of TCARDINAL has decreased .", "There is a risk of death in the short to medium term .", "CARDINAL/ Treatment required", "The quadritherapy started DATE is no longer effective . The patient is due to attend ORG for medical treatment which has become more onerous as a result of his poor general health . A more thorough examination is needed and can only be performed in a special facility . There is virtually no other treatment left to offer Mr PERSON against the Aids virus , beyond the detection and treatment of other opportunistic infections , in particular , of the digestive tract ...", "CARDINAL Whether his condition is compatible with detention in prison or requires special treatment that is only available in hospital", "PERSON condition is no longer compatible with detention in prison and requires treatment that is only available in hospital .", "CARDINAL/ Whether he is suffering from a disease that compromises his chances of survival", "Yes , PERSON is suffering from a disease that compromises his chances of survival in the short to medium term .", "CARDINAL/ Information and observations that may assist the court", "If the position concerning the viral load and TCARDINAL continues to deteriorate , complications may develop ( lymphoma , pneumopathy , toxoplasmosis , ORG infection or dementia ) . The hospital assessment will afford more detailed information on the evolution of the illness . Unforeseeable intercurrent lethal complication is possible . ”", "The judge also ordered a psychiatric report , which stated that the applicant was not suffering from a mental disorder amounting to insanity warranting psychiatric treatment , but had presented since childhood emotional imbalance marked by personality organisation with characteristic psychopathic traits which was not incompatible with continued detention . It was further noted that the applicant remained of dangerous criminal propensity and that , owing to his refusal to receive any psychotherapeutic treatment , there was no point in offering him such treatment in detention or making it a condition of a suspended sentence , since his active participation was the only guarantee of possible success .", "The Paris Regional Parole Court met on DATE . In a judgment delivered that DATE , it ordered the applicant 's sentence to be suspended on the grounds that it had been established by CARDINAL concurring expert reports that he was suffering from a disease that compromised his chances of survival and was thus eligible for a suspended sentence .", "ORG appealed against that judgment , which ORG quashed on DATE for the following reasons :", "“ ... a medical report dated DATE shows that the treatment for the diseases from which PERSON is suffering is onerous and can only be administered ' DATE with difficulty because the prisoner is uncooperative – in custody or in a relatively restrictive structure ' . The practitioner adds : ' This is the crux of the matter ' and that detention remains ' compatible with his condition ' . Another medical expert , in a report lodged on DATE , states that the treatment which PERSON must take is ' simple and can be administered in a prison environment ' .", "Lastly , the impugned decision notes that a psychiatric expert has stated that PERSON remains of ' dangerous criminal propensity and that his ' active participation ' in the treatment is the only guarantee of possible success , ' in view of the way his personality is structured ' .", "In these circumstances , it does not appear appropriate to suspend the sentence and the impugned decision must be reversed . ”", "In a letter of DATE , the applicant 's lawyer was advised by a member of the ORG d'État and ORG whom he had contacted that , by virtue of LAW , no appeal lay against a decision of ORG , unless it could be shown that it had acted in excess of its authority , which did not appear to be the position in the applicant 's case .", "Legislation introduced on DATE transferred responsibility for treating prisoners to the public hospital service . Medical treatment for prisoners is thus provided by medical structures within the prisons ( consultation and outpatient care units ) directly affiliated to the local public hospitals that are to be found in the vicinity of each prison ( Article NORP CARDINAL of LAW ) .", "A prisoner 's state of health may be taken into account in deciding whether he or she should receive a pardon from the NORP President ( Articles CARDINAL and CARDINAL of the LAW ) or be granted parole under LAW of LAW .", "Further , the Rights of Patients and Quality of the Health Service Act of DATE inserted a new LAW into LAW which enables an application to be made for suspension of sentence on medical grounds .", "An Act of DATE brought issues relating to parole within the sole jurisdiction of the ordinary courts and , in particular , the judge responsible for the execution of sentences . It also created CARDINAL new bodies , ORG and ORG .", "The relevant provisions of LAW now provide :", "“ Irrespective of the type of sentence or the length of sentence still to be served , suspension [ of sentence ] may also be ordered , for a period that not need be specified , for convicted persons who are shown to be suffering from a disease that compromises their chances of survival or whose condition is permanently incompatible with continued detention , other than persons in respect of whom a hospital order has been made owing to mental disorder .", "Suspension may be ordered only if CARDINAL medical experts state in separate , concurring reports that the convicted person comes within CARDINAL of the categories referred to in the preceding sub - paragraph .", "The judge responsible for the execution of sentences shall have jurisdiction to suspend the sentence , in accordance with the procedure set out in LAW , if the custodial sentence passed is for DATE or less or if , irrespective of the initial sentence , the period still to be served is DATE or less .", "In all other cases , ORG shall have jurisdiction to suspend the sentence , in accordance with the procedure set out in LAW .", "The judge responsible for the execution of sentences may at any time order medical reports on a convicted person whose sentence has been suspended under this LAW and reinstate it if the conditions on which the sentence was suspended have not been complied with ... ”", "The regional parole court shall have power to grant , adjourn , refuse or revoke measures relating to parole that are not within the jurisdiction of the judge responsible for the execution of sentences in a reasoned decision on an application by the convicted person or the principal public prosecutor , after consulting the Execution of Sentences Consultative Board .", "A regional parole court shall be attached to each court of appeal and be composed of a divisional president or judge of the court of appeal , who shall preside , and CARDINAL judges responsible for the execution of sentences within the jurisdiction of the court of appeal , including CARDINAL from the court with jurisdiction for the prison in which the convicted person is being held if the decision concerns a grant or refusal of parole or an adjournment .", "The functions of the public prosecutor shall be performed by the principal public prosecutor or CARDINAL of his or her advocates - general or deputies and those of the registry by a registrar from the court of appeal .", "The regional parole court shall give its ruling in a reasoned decision following an adversarial hearing in private at which it shall hear the submissions of the prosecution and the observations of the convicted person and , if applicable , his counsel .", "The convicted person or the prosecution may appeal to ORG against a decision of the regional parole court within DATE after being notified of it . Such decisions shall be provisionally enforceable . However , an appeal by the principal public prosecutor within TIME after receiving notification shall operate to stay execution of the decision until ORG has given its ruling . The ORG shall examine the case DATE after the appeal , failing which the appeal will be void .", "The ORG shall be composed of the President of ORG or a judge of that court appointed as his or her representative , who shall preside , CARDINAL judges from the seat of the court , a representative of the national association for the rehabilitation of convicted offenders and a representative of the national association for victim support . The functions of the prosecution shall be performed by ORG at ORG . The ORG shall give its ruling in a reasoned decision against which there shall be no right of appeal whatsoever . The hearing shall be held and the decision given in private , after the court has heard the observations of the convicted person .", "The arrangements for implementing this Article shall be determined by decree . The decree will specify where the adversarial hearing which the regional parole courts are required to hold will be held when it concerns convicted prisoners . ”", "The system has been changed by LAW of DATE which came into force on DATE . Henceforth , the relevant decisions are to be taken by the judge responsible for the execution of sentences and a new court , the court responsible for the execution of sentences .", "In a judgment of CARDINAL DATE concerning the application of the aforementioned LAW , DATE ) , ORG stated :", "“ The principal public prosecutor argued that DATE in view of the seriousness and impact of a conviction for crimes against humanity – the court of appeal was not entitled to decide that PERSON [ Papon ] 's age and condition made it unlikely that suspending his sentence would prejudice public order , without first examining whether there were external factors that needed to be taken into consideration . That argument must fail .", "Article CARDINAL - CARDINAL - CARDINAL sub - paragraph CARDINAL ... , which enables a custodial sentence to be suspended for a period that not need be specified , irrespective of the type or length of sentence , in respect of convicted prisoners who are shown to be suffering from a disease that compromises their chances of survival or whose condition is permanently incompatible with continued detention , does not lay down any conditions as to the nature of the offences for which sentence has been passed or risk of prejudice to public order . ”", "According to figures published in an article in the ORG newspaper on DATE , CARDINAL prisoners had had their sentences suspended since the entry into force of the Act of DATE : “ In DATE , CARDINAL applications for suspension of sentence were granted , CARDINAL were refused and CARDINAL were being examined . At the same time , there were CARDINAL non - suicide related deaths in custody in DATE ” .", "The appendix to the ORG provides , inter alia :", "“ I. Prison Aspects", "NORP The general principles", "...", "Prisoners with terminal HIV disease should be granted early release , as far as possible , and given proper treatment outside the prison . ”", "Reference should also be made to Recommendation no . R ( CARDINAL ) CARDINAL of ORG to member GPE concerning the ethical and organisational aspects of health care in prison ." ]

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[ "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "He was a partner in a commercial partnership , a banking and stockbroking firm called PERSON I / S ( hereafter “ the Partnership ” ) . In addition to the applicant , the Partnership had CARDINAL other partners : VL , ORG , ORG , and CARDINAL private limited companies , namely Hugo PERSON A / S and PERSON A / S. Subsequently , in legal proceedings it was established that a further partner , ORG , had not formally resigned from the Partnership and therefore was also to be considered a partner .", "On DATE , due to financial difficulties , proceedings were initiated before ORG ( ORG under Sø- og ORG ) concerning the Partnership and the partners for suspension of payments .", "On DATE , ORG decided to discontinue the suspension of payments . At the same time , having heard CARDINAL bankruptcy petitions against the applicant , who did not object to the claim that the bankruptcy conditions had been met , ORG commenced bankruptcy proceedings against his estate . A trustee in bankruptcy was appointed to sort out the estate and to settle the accounts and the applicant was divested of the right to administer or to deal with his assets .", "ORG formally commenced the examination of claims on CARDINAL DATE , but found that it was appropriate to wait until the claims against the Partnership had been lodged and examined .", "On DATE , bankruptcy proceedings commenced against the Partnership and by DATE bankruptcy notices regarding all the copartners had been issued as well . The ORG ’s assets , including the individual ORG assets , were estimated at MONEY ( ORG ) , while its liabilities were estimated at ORG CARDINAL . The Partnership estate was closed on DATE with distribution of dividends .", "NORP In the meantime , as regards the applicant ’s bankruptcy estate , in the period DATE various court sessions were held with a view to determining the applicant ’s assets and considering creditor claims .", "In DATE a new trustee was appointed . Court hearings were held in DATE and DATE .", "NORP Moreover , the trustee held several meetings with the applicant and the partners in DATE and DATE .", "During DATE and DATE it appears that no court hearings as such were held . Nevertheless ORG and the trustee regularly examined claims in this period .", "In a report of CARDINAL DATE , the ORG stated , inter alia , that the applicant ’s estate could not be dealt with until the closure of the Partnership estate .", "Court sessions were held on DATE , DATE and DATE , CARDINAL DATE and CARDINAL DATE . On DATE , ORG adjourned the proceedings pending the preparation of accounts .", "In a report of CARDINAL DATE , the ORG stated that full coverage for the Partnership creditors was expected in connection with the closing of the ORG estates . He was therefore endeavouring to obtain a compulsory composition so that the bankruptcy proceedings could be finalised pursuant to section CARDINAL of LAW . The accounts of the applicant ’s bankruptcy estate could not be prepared , however , until formal accounts were available in the estates of the co - partners PERSON , CHN and FVM . At the relevant time , those accounts were being prepared , but could not be completed until , inter alia , the outcome of proceedings initiated by ORG against PERSON ORG in bankruptcy was known . The latter proceedings were finalised in DATE .", "On DATE , the trustee informed ORG that the draft accounts and report had been prepared and sent to the applicant for his comments . On DATE the trustee reminded the applicant that his comments were awaited .", "On DATE , a hearing was held at ORG during which a representative for the applicant stated that before the accounts could be approved , the applicant needed to examine certain matters in detail . Accordingly , ORG decided to postpone the approval of the accounts . Moreover , it appointed a lawyer as counsel for the applicant to help him with the matters raised .", "NORP In a letter of DATE to the creditors , the ORG stated that the approval could not be given pending the review of various matters by the applicant ’s counsel and clarification of the applicant ’s tax affairs .", "By DATE the bankruptcy proceedings against the other partners of the Partnership were terminated .", "On DATE having received several reminders , the applicant ’s counsel replied as to the matters that needed to be examined and he recommended that resources be applied to seek a settlement with both the creditors of the bankruptcy estate and the tax authorities .", "NORP By letter of CARDINAL DATE , the ORG requested that ORG schedule another meeting of creditors to close the estate . He referred to the fact that no objections had been filed against the accounts and that the applicant ’s dispute with the tax authorities did not affect the assets available for distribution .", "On DATE , ORG declared that the estate would be closed .", "At a hearing on CARDINAL DATE , ORG approved the accounts of the applicant ’s bankruptcy estate . Thereafter , the proceedings were adjourned pending the preparation of draft distribution accounts to be presented at a meeting of creditors on DATE . On DATE , due to lack of agreement between the ORG and ORG , the proceedings were adjourned . Another hearing was held on DATE .", "In accordance with the draft distribution accounts , preferential claims would be fully covered . Moreover , an amount of approximately ORG CARDINAL remained for distribution to so - called section CARDINAL claims ( section CARDINAL of LAW , which included deferred claims for interest ) .", "On DATE , a distribution on account was made in respect of the ordinary claims . During the period between DATE and DATE an amount of DKK MONEY was made available to the applicant .", "Before the final deadline for notifying claims in the estate , which ORG fixed at DATE , CARDINAL Partnership creditors lodged claims for interest in the estate . The applicant ’s counsel negotiated with the creditors with a view to reaching a settlement on the claims for interest , but in vain .", "Thus , on CARDINAL DATE and CARDINAL DATE hearings were held at ORG . On the latter date the deferred claims for interest were examined . The creditors , who appeared before the court , objected to the trustee ’s recommendation concerning the calculation of the claims for interest , and the parties therefore concluded a litigation agreement on the filing of a pleading to ORG by DATE at the latest .", "In addition , the applicant objected to the trustee ’s recommendation concerning certain claims . He and the ORG therefore concluded a litigation agreement to select CARDINAL or more suitable lead cases .", "The examination of the other claims , which were not objected to by the creditors , but contested by the applicant , was adjourned pending the outcome of the lead cases . CARDINAL creditors then issued a writ against the bankruptcy estate , and the applicant intervened as a third party .", "On DATE , ORG passed judgment in the CARDINAL lead cases , and at a meeting of creditors on CARDINAL DATE the creditors declared that they did not wish to appeal against the judgments unless the applicant did so . The applicant subsequently appealed against the judgments to the High Court of Eastern GPE ( PERSON ) , hereafter the High ORG .", "On DATE , ORG invited the applicant and the creditors to consider whether the estate could be closed under section CARDINAL of LAW by setting aside funds to cover the contested claims pursuant to section CARDINAL . According to the former provision , the estate could be finalised and the surplus assets handed over to the debtor if the creditors had obtained full payment . The latter provision , however , provided for the possibility of finalising the estate even though there were disputed claims , if an amount equal to those claims had been set aside . At the relevant time it was not legally possible to combine section CARDINAL and section CARDINAL , unless the parties agreed to do so .", "On DATE , at a hearing at ORG , the trustee recommended that final distribution accounts be prepared in respect of the deferred claims comprised by section CARDINAL of LAW , which were not the subject of the pending appeal proceedings . In respect of the disputed claims , the distribution could be postponed until after the closing of the estate , as provided for by section CARDINAL of LAW . ORG approved this recommendation and scheduled a meeting of creditors .", "At the scheduled meeting of creditors , which took place on DATE , the applicant objected to ORG closing the estate . In support thereof he argued that “ the length of the proceedings had been unreasonable [ anyway ] and that therefore the closing of the estate ought to await [ also ] the outcome of the appeal proceedings before the High ORG ” . Despite the applicant ’s objection , ORG decided to approve the accounts and to make contributions in respect of the claims , which were not the subject of the pending appeal proceedings . It was also decided to make an amount of DKK CARDINAL,CARDINAL available to the applicant pursuant to section CARDINAL of LAW , then applicable . Finally , the estate was finalised by setting aside the remaining funds to cover the disputed claims .", "The applicant appealed against the finalisation of the estate in accordance with section CARDINAL to ORG , which found against him on DATE . It appears that the applicant failed to request leave to appeal against this decision to ORG ( Højesteret ) .", "On DATE , in the appeal proceedings concerning the disputed deferred claims for interest , ORG passed judgment against the applicant .", "On DATE ORG held a meeting of creditors to produce additional distribution accounts concerning the disputed deferred claims for interest . However , since the applicant had requested that ORG ( Procesbevillingsnævnet ) grant him leave to appeal to ORG , ORG adjourned the proceedings .", "On DATE , ORG informed the parties that the applicant would be granted leave to appeal against the judgment to ORG .", "On DATE , ORG passed judgment finding against the applicant .", "On DATE , concluding that all creditors had been satisfied , ORG closed the estate and approved the handing over of the remaining assets of the estate , minus the costs of administration of the estate , to the applicant pursuant to section CARDINAL of ORG .", "Before the ORG the applicant submitted that on numerous occasions , in vain , he had requested that the bankruptcy proceedings be expedited . This was disputed by the Government .", "By letter of CARDINAL DATE ORG ( PERSON ) invited the applicant to raise his complaints about the length of the bankruptcy proceedings before the court , where the case was pending .", "LAW ( GPE ) , LAW no . CARDINAL of DATE , which comprised the rules relevant to the administration of the applicant ’s bankruptcy estate , stated in as far as relevant :", "Upon the pronouncement of the bankruptcy order , the debtor is deprived of his right to assign or to abandon his property , to accept payments and other services rendered , to accept terminations , complaints and similar declarations , to incur debts or to deal in any other way with his property with any effect as regards the estate .", "( CARDINAL ) Where the debtor is unable to provide for his own and his family ’s needs by his own work , the estate may award maintenance to the debtor or to his dependents .", "( CARDINAL ) The estate may grant the debtor a right of use to real property or chattels .", "...", "( CARDINAL ) Where specific grounds so justify , ORG may reject the election of a trustee or remove him later . ...", "Where the trustee or meeting of creditors acts to the detriment of the estate , or where rights vested in mortgagees , the debtor or other parties are infringed upon , ORG may set aside the decisions made , give directions to the trustee , and take any other requisite steps .", "( CARDINAL ) Where the debtor obtains a compulsory composition , cf . section CARDINAL , and where the creditors of the bankruptcy estate who , under section CARDINAL ) , are not comprised by the composition have been satisfied or adequately secured , or where the debtor , after the expiry of the period allowed for proof of claims , produces a consent from all creditors or proof of their having been satisfied , the bankruptcy proceedings must be finalised promptly , and the assets of the estate must be handed over to the debtor , subject to deduction of any costs inclined in connection with the bankruptcy proceedings .", "( CARDINAL ) Where the debtor , after the bankruptcy proceedings have been completed , substantiates that the creditors have been satisfied or have waived their claims , the ORG shall issue a certificate to such effect to him .", "On the basis of a recommendation from the ORG , the bankruptcy court may decide that the preparation of the final accounts , and distribution , if any , of an amount not yet collected , of any amount set aside pursuant to section GPE ) , or of any other specifically limited parts of the estate , will be deferred to the period after finalisation of the bankruptcy proceedings .", "Section CARDINAL ) of LAW no . CARDINAL of DATE ) , now in force , reads as follows :", "The debtor or a creditor may demand that ORG make use of its authorities set out in section CARDINAL , subsection CARDINAL , and that it fix a hearing pursuant to section CARDINAL or CARDINAL [ with a view to finalising the estate ] , if such proves necessary due to the requirement in DATE LAW concerning a fair trial within a reasonable time .", "A partnership is an association formed by several natural or legal persons for the purpose of promoting the ORG ( ORG ) financial interests through business activities .", "A partnership is a form of business enterprise in which all members are liable personally , without limitation and jointly and severally for the obligations of the enterprise ( see section CARDINAL(CARDINAL ) of Consolidation Act no . CARDINAL of DATE on certain business enterprises ) . This implies that the members are liable with their entire personal property , that the individual member is liable for the entire debt , and that the creditors of the partnership have a direct claim against the individual member without first having to raise a claim against the partnership .", "The partnership and its members are liable to the creditors of the partnership . Under applicable NORP law , it is therefore a prerequisite for administration of the bankruptcy estate of a partnership that all partners are subject to bankruptcy proceedings . A co - partner ’s bankruptcy estate is thus of importance to the closing of the other co - partners’ bankruptcy estates . By contrast , the partnership is not liable to the ORG personal creditors . Hence , personal creditors can not seek satisfaction from partnership assets , but only in the surplus distributed to the partners .", "There are few rules of law regulating partnerships . In the absence of a rule of law regulating the matter , the legal position depends on an interpretation of the partnership agreement and on what may be inferred from non - mandatory rules .", "If a member of a partnership is declared bankrupt , section CARDINAL of the LAW applies . This provision enables the estate to release the relevant partner ’s share of the net assets of the partnership with a suitable notice so that all his assets are applied to satisfy his creditors ." ]

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

[ "P1-1" ]

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[ "The applicant is a NORP national , born in DATE and currently serving his prison sentence in FAC in GPE , GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .", "On DATE N. was charged before ORG ( käräjäoikeus , tingsrätt ) with aggravated narcotics offences concerning QUANTITY of cannabis ( case R CARDINAL ) . He had stated to the police that he had committed several aggravated narcotics offences in DATE and incriminated several other people , including the present applicant , during the police investigations . The case was adjourned until CARDINAL DATE as the police investigations had not finished .", "N. ’s case was heard on CARDINAL and DATE . ORG confessed to the court that he had dealt in QUANTITY of cannabis . The case was adjourned until DATE as the police investigations continued .", "On DATE the present applicant , PERSON , was taken into police custody as he was suspected of an aggravated narcotics offence on the basis of the information revealed by ORG to the police . The applicant was brought before the GPE ORG DATE , i.e. on DATE . The court ordered his detention on remand until the first hearing of his case ( case R CARDINAL/CARDINAL ) on DATE .", "On DATE N. was charged with additional aggravated narcotics offences which he confessed to . The case ( case R CARDINAL/CARDINAL ) was again adjourned until DATE .", "There was a hearing in the present applicant ’s case ( case R CARDINAL/CARDINAL ) before the Helsinki ORG on DATE , in which the applicant was charged with an aggravated narcotics offence and illegal possession of a firearm . The applicant was suspected of having had in his possession QUANTITY of cannabis with intention to deal therein in DATE and a firearm . The applicant confessed to the illegal possession of a firearm and denied the narcotics offence . The case was adjourned until DATE .", "On DATE before the ORG N. repeated all his statements to the police and stated that he would stand by them . ORG ’s case ( case R CARDINAL/CARDINAL ) was joined with another case ( R CARDINAL/CARDINAL ) .", "The applicant ’s case ( R CARDINAL/CARDINAL ) was heard on DATE separately from ORG ’s case . The applicant ’s case was adjourned until DATE as the police investigations had not finished .", "On DATE the applicant ’s case was again heard separately from ORG ’s case . The applicant was additionally charged with several aggravated narcotics offences . He was suspected of having possessed QUANTITY of cannabis in DATE , QUANTITY of cannabis in DATE , DATE and QUANTITY of cannabis in DATE , QUANTITY of cannabis in DATE , QUANTITY of cannabis DATE and QUANTITY of cannabis in DATE . The applicant denied all the additional charges . The case was adjourned until DATE .", "On DATE there was also a hearing in case R CARDINAL/CARDINAL ( the case number used after the joinder of ORG ’s case with another case ) against ORG and now CARDINAL other accused , concerning several aggravated narcotics offences . Several charges were brought against ORG and other co - accused . The case was adjourned until DATE .", "On DATE the applicant ’s case ( R CARDINAL/CARDINAL ) was again heard separately from ORG ’s case . The applicant denied all the charges and stated that they were all based solely on ORG ’s statements made in the course of a police investigation and a hearing at which the applicant was not represented and that there was no other evidence against him . He requested to be released as he had not been given an opportunity to question PERSON also submitted that ORG had changed his statements to the police so that these could not be found credible . The public prosecutor objected to the applicant ’s request , stating that the applicant would , if released , interfere with the investigations which had not yet finished . The case was adjourned until DATE .", "By this time there was also a hearing in case R CARDINAL/CARDINAL against ORG and CARDINAL other accused ( not including the applicant ) . PERSON stated to ORG that he would not repeat his previous statements and retracted them . The case was also adjourned until DATE .", "On DATE the applicant ’s case ( R CARDINAL/CARDINAL ) was joined with yet another case ( R CARDINAL/CARDINAL ) in which there were CARDINAL other accused concerning the same drug trafficking offences ( including PERSON to whom the applicant had allegedly given the drugs ) . The public prosecutor stated that the investigations were still unfinished and requested that the case should be adjourned . The applicant stated that he would respond to the charges in detail as soon as ORG can be questioned . PERSON denied that the applicant had had anything to do with the narcotics . The case was adjourned until DATE .", "On DATE there was also a hearing in case R CARDINAL/CARDINAL against ORG and several other accused . The case was adjourned until DATE .", "On DATE there was a hearing in the applicant ’s case ( now R CARDINAL/CARDINAL after the joinder of the applicant ’s case with PERSON ’s case ) . The applicant requested to be released as there was nothing left to “ interfere with ” in the investigations and as he had still not been given a chance to put questions to NORP case was adjourned until DATE .", "By this time there was also a hearing in case R CARDINAL/CARDINAL against ORG and others . The case was adjourned until DATE .", "On DATE there was a hearing in both cases ( R CARDINAL/CARDINAL and R CARDINAL/CARDINAL ) which were now joined . There was a total of CARDINAL accused including the applicant , N. and H. The public prosecutor asked ORG whether the applicant had been with PERSON collecting the drugs from PERSON answered “ no ” . ORG also stated that at his stage he did not want to repeat everything he had said about PERSON , the applicant and CARDINAL other accused . The public prosecutor withdrew a part of the charges ( concerning QUANTITY of cannabis at DATE ) against the applicant but stated that the applicant had dealt in QUANTITY of cannabis on DATE . The applicant ’s legal counsel asked CARDINAL questions about the latter ’s health . After this questioning the counsel stated that ORG was ill and could not properly concentrate on the questions put to him during this hearing . She also submitted that there were several discrepancies between ORG ’s various statements and that ORG ’s statements did not support the charges against the applicant . The case was adjourned until DATE .", "On DATE there was another hearing in case R CARDINAL/CARDINAL before ORG . The public prosecutor submitted several police investigation reports to the court . The case was adjourned until DATE .", "On DATE the case was heard again . The public prosecutor submitted new police investigation reports to the court . ORG refused to comment on any of his statements and stated that he would remain silent . He also stated that he would not answer any questions put to him as he “ wanted to reserve an opportunity for all the innocent co - accused to tell the truth ” . The applicant ’s legal counsel stated that she had prepared questions for ORG but could not put them to him at the moment as ORG had said that he would not answer any questions . The case was adjourned until DATE . The applicant was ordered to be released from detention .", "At ORG hearing on DATE N. again refused to repeat his statements concerning the applicant , PERSON and CARDINAL others as he could not “ take the responsibility if innocent men were convicted on the basis of his statements ” . The applicant ’s legal counsel put a question to ORG ( the question and any answer to it is not on the file ) . The case was adjourned until DATE .", "On DATE the case was heard again . The applicant submitted that the only evidence against him was the earlier statements of ORG and that ORG had withdrawn them . ORG was convicted of CARDINAL aggravated narcotics offences and CARDINAL counts of possession of an illegal firearm and sentenced to DATE and CARDINAL months’ imprisonment . CARDINAL other accused were convicted of different narcotics offences and sentenced to imprisonment . The rest of the case was adjourned until DATE , including the applicant ’s case .", "On DATE the case was heard again . The public prosecutor submitted a report , dated DATE , to the court concerning telecommunications between the accused . The report had been served on the applicant ’s legal counsel the previous afternoon . The public prosecutor submitted a complete list of the telephone calls , with details of their duration and dates , but the legal counsel was provided only with a list concerning the number of the phone calls . The applicant ’s counsel commented telecommunications between the accused , without requesting a further adjournment on the basis of the new report . The counsel gave her closing speech in which the fact that the report concerning telecommunications had been submitted to the counsel only on DATE was not raised . ORG convicted the applicant of CARDINAL aggravated narcotics offences and illegal possession of a firearm and sentenced him to DATE and CARDINAL months’ imprisonment . The applicant was detained on remand . The reasoning of the court reads as follows :", "( translation from NORP )", "“ [ The applicant ] has denied all the charges except for charge number CARDINAL [ concerning illegal possession of a firearm ] . ...", "The conviction is based on ORG ’s statements . ORG has stated above why it has found ORG ’s statements credible . ORG told about the applicant ’s participation at a fairly early stage of the investigations and in a fairly detailed manner . ORG revealed that [ the applicant ] had assisted PERSON when PERSON collected the cannabis from PERSON identified the suitcase confiscated from [ the applicant ] as similar to the suitcase used by [ the applicant ] when collecting the cannabis from him . PERSON stated that [ the applicant ] had taken care of certain things for him . ORG ’s statement concerning the close co - operation between H. and [ the applicant ] is also supported by the fact that [ the applicant ] has lived with his girlfriend in a flat rented by ORG from GPE . Also PERSON has testified that [ the applicant ] had helped PERSON with all kinds of things . [ The applicant ] has , inter alia , witnessed PERSON ’s signature to a deed concerning PERSON ’s flat in ORG . CARDINAL of the witnesses , PERSON , has testified that [ the applicant ] had been “ hanging around ” a garage owned by ORG [ The applicant ] had been there fairly often either alone or with PERSON [ The applicant ’s ] girlfriend has had a car put to her disposal by PERSON [ The applicant ] has stated that a mobil phone line was opened in his name in DATE . The mobile phone was , however , in the use of H. and was also left with H. This has also been certified by PERSON", "CARDINAL NORP Marks ( ORG ) was confiscated from [ the applicant ] when he was arrested . FIM CARDINAL of the above - mentioned money was hidden in the body of a car . Considering that [ the applicant ] has testified that he has been unemployed for quite some time now it is not credible that the money was earned by him as a locksmith .", "ORG has had much more telephone connections with [ the applicant ] than any other accused in this case . In addition to that [ the applicant ] has been in close contact with the rest of the accused .", "It must be found that [ the applicant ] has received at least FIM CARDINAL,CARDINAL as the illegal profit of his actions . ”", "On DATE the applicant appealed to ORG ( hovioikeus , hovrätt ) , requesting an oral hearing before ORG . He stated that he should not have been found guilty on the basis of ORG ’s statements as there was no other evidence against him and as ORG had withdrawn his statements as far as the applicant was concerned . The applicant and ORG did not appear before the court at the same hearing until DATE . At that hearing ORG did not repeat his statements concerning the allegations against the applicant . The additional investigations did not finish until DATE , when PERSON declared that he would remain silent from then onwards . N. did not repeat his statements at the later stages of the proceedings and , thus , no questions were put to ORG either by the applicant ’s counsel or by the public prosecutor . According to the applicant , ORG ’s statements could not be regarded as credible and therefore , there was no evidence at all against him . He also pointed out that the report concerning telecommunications between the accused was finished on DATE and submitted to the court and to the accused ’s legal counsel on DATE , i.e. on DATE of the conviction .", "On DATE ORG upheld ORG judgment without holding an oral hearing . On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal . ORG" ]

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[ "Mr Niemietz lives in GPE i m GPE , GPE , where he practises as a lawyer ( PERSON ) .", "On DATE a letter was sent by telefax from the GPE post office to Judge PERSON of ORG ( ORG ) . It related to criminal proceedings for insulting behaviour ( PERSON ) pending before that court against PERSON , an employer who refused to deduct from his GPE salaries and pay over to the tax office the ORG tax to which they were liable . The letter bore the signature of CARDINAL PERSON possibly a fictitious person - , followed by the words \" on behalf of the Anti - clerical ORG ( PERSON ) of ORG ( multi - coloured group ) \" and a post - office box number . It read as follows :", "\" On CARDINAL the trial against Mr [ J. ] will take place before you . We , the Anti - clerical ORG of ORG , protest most strongly about these proceedings .", "In the ORG , the ORG , on the basis of the PERSON concordat and in violation of the ORG ’s duty to maintain neutrality , enjoys most extensive privileges . As a result , every non - NORP citizen of this ORG has to suffer disadvantages and DATE annoyance . Among other things , the ORG is the only ORG which acts as ORG - tax collector . It requires employers , whether they be NORP or not , to pay over ORG tax for their NORP employees and thus relieve the ORG of financial administrative work . [ J. ] has , for DATE , courageously and consistently refused to support the financing of the ORG in this way and has made an appropriate arrangement whereby the ORG tax of his NORP employees is paid without his own involvement .", "This attempt - in a ORG which counts the separation of ORG and ORG among its basic principles - to insist upon just such a separation has not only exposed [ J. ] to persistent vexation and interferences on the part of ORG authorities , culminating in the tax office employing coercive measures , such as attachment , to collect from him ORG tax which his employees had already paid a long time previously . It has in addition involved him - when he called these underhand methods by their name - in the present proceedings for alleged insulting behaviour .", "Were it your task as the competent judge to conduct an unbiased examination of this ‘ case of insulting ORG , then it must be said that you have not only failed to carry out this task , but also abused your office in order to try - by means which give a warning and a reminder of the darkest chapters of NORP legal history - to break the backbone of an unloved opponent of the ORG . It was with extreme indignation that we learned of the compulsory psychiatric examination which was conducted on your instructions , and to which [ J. ] has had to submit in the meantime . We shall use every avenue open to us , in particular our international contacts , to bring to public notice this action of yours , which is incompatible with the principles of a democratic ORG subscribing to the rule of law .", "We shall follow the further course of the proceedings against [ J. ] and expect you to abandon the path of terrorisation which you have embarked upon , and to reach the only decision appropriate in this case - an acquittal . \"", "The applicant had , as a city councillor , been chairman for DATE of ORG , which is a local political party . He had also played a particularly committed role in , although he had never been a member of , its Anti - clerical ORG , which sought to curtail the influence of the ORG .", "Until DATE certain of the mail for the ORG , which had as its address for correspondence only the post - office box number that had been given in the letter to Judge PERSON , had been delivered to the office ( Bürogemeinschaft ) of the applicant and a colleague of his ; the latter had also been active on behalf of the party and had acted for it professionally .", "On DATE the Director of the Munich ORG ( Landgericht ) requested the GPE public prosecutor ’s office ( ORG ) to institute criminal proceedings against PERSON for the offence of insulting behaviour , contrary to LAW . Attempts to serve a summons on him were unsuccessful . The applicant ’s colleague refused to give any information about PERSON or his whereabouts and other attempts to identify him failed .", "In the context of the above - mentioned proceedings ORG issued , on DATE , a warrant to search the law office of the applicant and his colleague and the homes of PERSON and PERSON The warrant read as follows :", "\" Preliminary investigations against PERSON concerning LAW", "Decision", "The search of the following residential and business LOC for documents which reveal the identity of ‘ PERSON [ sic ] and the seizure of such documents is ordered .", "Office premises shared by the lawyers ORG and ... ,", "Home ( including adjoining rooms and cars ) of Ms [ NORP ] ... ,", "Home ( including adjoining rooms and cars ) of Ms [ G. ]", "Reasons", "On DATE a letter insulting Judge PERSON of ORG was sent by telefax from the GPE post office . It was sent by the LAW - clerical ORG of ORG . The letter was signed by CARDINAL PERSON .", "Until now it has not been possible to identify the signatory . ORG could not be contacted by mail otherwise than through a box number . Until DATE such mail was forwarded to the office of Niemietz and ... , and since DATE to Ms [ NORP ] . It has therefore to be assumed that documents throwing light on the identity of PERSON can be found at the premises of the above - mentioned persons .", "Furthermore , it is to be assumed that there are such documents in the home of Ms [ G. ] , the Chairwoman of ORG .", "For these reasons , it is to be expected that evidence will be found in the course of a search of the premises indicated in this decision . \"", "The search of the law office , the need for which the investigating authorities had first tried to obviate by questioning a witness , was effected by representatives of the GPE public prosecutor ’s office and the police on CARDINAL DATE . According to a police officer ’s report drawn up on DATE , the premises were entered at TIME and inspected in the presence of CARDINAL office assistants . The actual search began at TIME , when the applicant ’s colleague arrived , and lasted until TIME The applicant himself arrived at TIME He declined to give any information as to the identity of PERSON , on the ground that he might thereby expose himself to the risk of criminal prosecution .", "Those conducting the search examined CARDINAL filing cabinets with data concerning clients , CARDINAL files marked respectively \" BL \" , \" C.W. -Freiburg ORG ... \" and \" G. - Hamburg Regional Court \" and CARDINAL defence files marked respectively \" K.W. - Karlsruhe District Court ... \" , \" Niemietz et al . - ORG ... \" and \" NORP - Freiburg District Court \" . According to the applicant , the office ’s client index was also looked at and CARDINAL of the files in question was its \" PERSON defence file \" . Those searching neither found the documents they were seeking nor seized any materials . In the proceedings before the ORG , the applicant stated that he had been able to put aside in time documents pointing to the identity of PERSON and had subsequently destroyed them .", "The homes of PERSON and PERSON were also searched ; documents were found that gave rise to a suspicion that the letter to Judge PERSON had been sent by PERSON under an assumed name .", "On DATE the Chairman of ORG , who had been informed about the search by the applicant ’s colleague , addressed a formal protest to the President of ORG . The Chairman sent copies to the NORP Minister of ORG and ORG and invited the latter to associate itself with the protest .", "In a reply of DATE , the President of ORG stated that the search was proportionate because the letter in question constituted a serious interference with a pending case ; hence no legal action on the protest was necessary .", "The criminal proceedings against \" PERSON \" were later discontinued for lack of evidence .", "On DATE CARDINAL the GPE ORG declared an appeal ( Beschwerde ) lodged by the applicant , pursuant to LAW , against the search warrant to be inadmissible , on the ground that it had already been executed ( \" wegen prozessualer PERSON \" ) . It considered that in the circumstances there was no legal interest in having the warrant declared unlawful . It had not been arbitrary , since there had been concrete indications that specified material would be found . There was no ground for holding that LAW ( see paragraph CARDINAL below ) had been circumvented : the warrant had been based on the fact that mail for ORG had for some time been delivered to the applicant ’s office and it could not be assumed that that mail could concern a lawyer - client relationship . In addition , personal honour was not so minor a legal interest as to render the search disproportionate . There could be no question in the present case of preventing a lawyer from freely exercising his profession .", "On DATE CARDINAL the applicant lodged a constitutional complaint ( ORG ) against the search warrant of CARDINAL DATE and ORG decision of CARDINAL DATE . On DATE a panel of CARDINAL judges of ORG ( Bundesverfassungsgericht ) declined to accept the complaint for adjudication , on the ground that it did not offer sufficient prospects of success .", "ORG also found that the GPE ORG decision of CARDINAL DATE that the applicant ’s appeal was inadmissible was not objectionable in terms of constitutional law . Furthermore , as regards the actual execution of the warrant , Mr Niemietz had not exhausted the remedy available to him under section PERSON ) of LAW to LAW ( Einführungsgesetz zum Gerichtsverfassungsgesetz ) .", "The search complained of was ordered in the context of criminal proceedings for insulting behaviour , an offence punishable by imprisonment for a maximum , where no physical violence is involved , of DATE or a fine ( LAW ) .", "Article CARDINAL para . CARDINAL of LAW ) guarantees the inviolability of the home ( GPE ) ; this provision has been consistently interpreted by the NORP courts in a wide sense , to include business LOC ( see , in particular , ORG judgment of CARDINAL DATE - PERSON , vol . CARDINAL , p. CARDINAL ) .", "LAW provides that the home and other LOC ( GPE und andere Räume ) of a person who is not suspected of a criminal offence may be searched only in order to arrest a person charged with an offence , to investigate indications of an offence or to seize specific objects and provided always that there are facts to suggest that such a person , indications or objects is or are to be found on the LOC to be searched .", "Search warrants may be challenged , as regards their lawfulness , in proceedings instituted under LAW and , as regards their manner of execution , in proceedings instituted under section PERSON ) of LAW to LAW .", "In GPE a lawyer is an independent organ in the administration of justice and an independent counsel and representative in all legal matters .", "An unauthorised breach of secrecy by a lawyer is punishable by imprisonment for a maximum of DATE or a fine ( Article CARDINAL para . CARDINAL(CARDINAL ) of LAW ) . A lawyer is entitled to refuse to give testimony concerning any matter confided to him in a professional capacity ( Article CARDINAL para . CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ) . The last - mentioned provisions , in conjunction with LAW , prohibit , with certain exceptions , the seizure of correspondence between lawyer and client .", "In its judgment of CARDINAL DATE in Joined Cases CARDINAL/CARDINAL and CARDINAL ORG v. Commission [ DATE ] ORG ( \" ECR \" ) CARDINAL at CARDINAL , ORG of ORG stated as follows :", "\" Since the applicant has also relied on the requirements stemming from the fundamental right to the inviolability of the home , it should be observed that , although the existence of such a right must be recognized in the ORG legal order as a principle common to the laws of LAW in regard to the private dwellings of natural persons , the same is not true in regard to undertakings , because there are not inconsiderable divergences between the legal systems of GPE in regard to the nature and degree of protection afforded to business LOC against intervention by the public authorities .", "No other inference is to be drawn from DATE ) ( article DATE ) of LAW which provides that : ‘ Everyone has the right to respect for his private and family life , his home and his correspondence’ . The protective scope of that article is concerned with the development of man ’s personal freedom and may not therefore be extended to business LOC . Furthermore , it should be noted that there is no case - law of ORG on that subject .", "None the less , in all the legal systems of the Member States , any intervention by the public authorities in the sphere of private activities of any person , whether natural or legal , must have a legal basis and be justified on the grounds laid down by law , and , consequently , those systems provide , albeit in different forms , protection against arbitrary or disproportionate intervention . The need for such protection must be recognized as a general principle of Community law . In that regard , it should be pointed out that the ORG has held that it has the power to determine whether measures of investigation taken by the ORG under LAW are excessive ( judgment of DATE in Joined Cases CARDINAL to CARDINAL and DATE to CARDINAL GPE and ORG [ DATE ] ECR CARDINAL ) . \"", "This statement was affirmed in the same court ’s judgments of CARDINAL DATE in LAW ORG [ DATE ] ECR CARDINAL at CARDINAL and Joined Cases CARDINAL to CARDINAL/CARDINAL ORG Ibérica and ORG [ DATE ] ECR CARDINAL at CARDINAL ." ]

[ "8" ]

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[ "The applicant was born in DATE and lives in GPE . On DATE he bought a house ( no . CARDINAL , plot no . CARDINAL ) in the NORP neighbourhood attached to LOC in GPE . According to the title deed records , he paid MONEY ( approximately MONEY at the time ) .", "Following a major rockslide , on CARDINAL DATE ORG declared the NORP neighbourhood a natural disaster area . To identify those who had been affected by the natural disaster , a regulation was published in ORG on DATE . According to the terms of this regulation , the victims of the natural disaster were given an opportunity to apply to the authorities within a specified time - limit to claim re - housing . At that time , CARDINAL of the CARDINAL families that had been living in the disaster area applied to the administrative authorities and they were provided with new houses in the Esentepe neighbourhood . The houses of these families were subsequently demolished . The owner of house CARDINAL , plot no . CARDINAL , which was subsequently bought by the applicant in DATE , did not apply to the authorities to claim re - housing .", "On DATE the owner of plot no . CARDINAL/CARDINAL at the time received an eviction order from the FAC Governor 's office .", "On DATE , at the request of ORG , land registry records were amended to indicate that no construction was permitted in the NORP neighbourhood .", "DATE several on - site inspections were conducted and many experts ' reports were prepared . All of these reports indicated that the neighbourhood was under an imminent danger of rockslide and prevention measures had to be taken by the owners of the houses and the municipality . It appears from the documents that no preventive measures were taken .", "As stated above ( paragraph CARDINAL ) , on DATE the applicant bought the house ( no . CARDINAL ) situated on plot no . CARDINAL . The applicant never lived in this house , and it was vacant in DATE . According to the documents submitted by the Government , the house was in ruins and it had no historical or architectural value .", "On DATE following a heavy rain , rocks fell on house no . CARDINAL . On DATE the authorities conducted an on - site inspection and prepared a report . The report concluded that QUANTITY houses located in the GPE neighbourhood , including the CARDINAL owned by the applicant , required demolition to prevent loss of life . As a result , at the request of ORG , the GPE Governor 's office ordered that the applicant 's house be demolished pursuant to LAW . CARDINAL regarding Natural Disasters . On DATE the house was demolished without prior notification to the applicant .", "On DATE the applicant filed an action before ORG against the GPE Governor 's office . He requested compensation for the unlawful demolition of his house .", "On DATE ORG dismissed the applicant 's case . The court explained its decision by pointing out that the applicant 's house had been situated in a neighbourhood that had been declared a natural disaster area by ORG on DATE following a major rockslide . The court further took note of the fact that on DATE the LOC Governor 's ORG had sent an eviction order to the previous owner of the applicant 's house . In the court 's opinion , as the title - deed records of the building stated that no construction was permitted in the NORP neighbourhood , the applicant should have been aware of this situation when he had bought the house . As a result , it concluded that by demolishing the vacant house , that had no historical or architectural value , and which posed an immediate threat to public safety , the administration had acted in accordance with the law . The court accordingly refused the applicant 's request for compensation .", "The applicant appealed . On CARDINAL DATE ORG upheld the judgment of ORG , finding that the applicant 's grounds of appeal were unfounded . ORG held that FAC had delivered the demolition order because there was an urgent need to take action to prevent loss of life in the neighbourhood .", "On DATE ORG dismissed the applicant 's request for rectification . This decision was served on the applicant on DATE ." ]

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[ "The applicants were born in DATE , DATE and DATE , respectively , and live in GPE .", "The first applicant was born prematurely on DATE at the Dr ORG in GPE .", "On DATE he was diagnosed with an “ inguinal and umbilical hernia ” by doctors working in the same hospital .", "On an unspecified date in DATE or DATE , the third applicant , who is the first applicant 's father , purchased a unit of red blood cells and a unit of plasma from ORG , hereinafter “ the FAC ” ) . A number of blood and plasma transfusions were carried out on DATE , DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL and DATE . The first applicant was discharged from the hospital on DATE .", "Approximately DATE after the blood transfusion , the second and third applicants learned that the first applicant had been infected with the HIV virus which could develop into the more severe Acquired Immune Deficiency Syndrome ( AIDS ) .", "According to the information given by the Government , on DATE a donor ( no . DATE , code MUALAB-CARDINAL ) donated blood to the FAC . Subsequent to screening and tests carried out on the donated blood ( serial no . DATE ) , HIV was found and the blood in question was destroyed . Following CARDINAL more tests , it became certain that donor no . CARDINAL had been infected with HIV . The authorities conducted an investigation with a view to determining whether donor no . DATE had donated blood previously . It appeared that the unit of plasma ( serial no . DATE ) used for the first applicant 's treatment had been given by donor no . DATE . The first applicant was admitted to ORG for treatment . The costs of treatment were paid by ORG and ORG .", "On DATE the applicants filed a complaint with ORG office in GPE . They claimed that the FAC had provided contaminated blood and ORG had been negligent in conducting the requisite screening and testing in accordance with the relevant domestic legislation . They requested that criminal proceedings be initiated against the doctors and laboratory personnel involved in the transfusion process , as well as against the Director of ORG ( GPE PERSON ) and the Director of ORG .", "On DATE ORG of ORG prepared a report in which it stated that the unit of plasma used for the first applicant 's treatment had been screened and tested for the HIV virus . However at that stage the HIV antibodies had not yet been produced in the unit of plasma donated by donor no . DATE . The report further noted that all around the world the HIV infection had been screened by Anti - HIV ( LAW ) tests on the recommendation of ORG . Therefore , it had been scientifically impossible to diagnose the HIV contained in the unit of plasma in question by the routine tests . Thus , relying on the statements given by health personnel and expert reports , the report concluded that there was no negligence attributable to the health personnel involved in the incident or to any other authority .", "Notwithstanding , ORG advised that ( CARDINAL ) a circular be issued to relevant departments ; ( CARDINAL ) the health personnel be reminded to ensure that questionnaires were properly filled in by blood donors ; ( CARDINAL ) questions be asked about the sexual history of the donors and ( CARDINAL ) donations be refused in doubtful cases . ORG added that health personnel 's attention should be drawn to the need to wait for a sufficient period of time before delivering blood in case antibodies had not yet been produced . In this connection , on DATE circular no . CARDINAL and its attachments were communicated to all blood centres and stations in order to prevent infections resulting from blood transfusions .", "On DATE ORG decided that no investigation could be conducted into the doctors who had been involved in the blood transfusion process on the ground that the children 's hospital where the transfusions had taken place was not equipped with facilities for the LAW test . Therefore the doctors had not been at fault in the incident .", "On DATE the applicants filed a complaint with ORG office in GPE , this time against LOC and the Director General of the FAC .", "On DATE ORG issued a decision of nonprosecution . He reasoned that an investigation into the actions of a minister could only be conducted in accordance with LAW , which requires a motion to be brought in parliament . Therefore the Public Prosecutor concluded that he lacked jurisdiction ratione materiae and ratione personae in this matter . As regards the Director General of the Kızılay , ORG noted that he was in GPE whereas the incident had taken place in GPE and that there was no fault directly attributable to him , bearing in mind particularly that he had not been involved in selling the infected blood .", "On DATE the applicants filed an objection with ORG against ORG decision .", "On DATE ORG dismissed the applicants ' objection for non - compliance with the DATE statutory time - limit to lodge their objection .", "On DATE the applicants initiated compensation proceedings against the FAC and ORG . They requested non - pecuniary damage for the infection of the first applicant with HIV as a result of medical negligence on the part of the defendants .", "On DATE ORG issued a decision of non - jurisdiction in respect of the case brought against ORG . It stated that these complaints must be brought before the competent administrative tribunal .", "As regards the case instituted against the FAC , the court held that it was strictly liable for the incident as it had been established through a witness statement that the test which gave clear results on the presence of the HIV virus could not be carried out due to its high costs and that the health questionnaire system had not been in full practice at the time of the incident ( see paragraph CARDINAL above ) . It thus awarded the applicants MONEY ( GPE ) plus interest at the statutory rate running from DATE , the date of the incident . The court held , in particular :", "“ ... As briefly mentioned above , PERSON suffers from AIDS after receiving HIV virus infected blood supplied by the GPE ORG . ORG is at fault for the infection of the child . This appeared from the sworn statements given on DATE by Prof . Dr. PERSON , who works at ORG , ORG and ORG . PERSON , who is a specialist on this subject , is the only witness of ORG and holds an academic title of “ professor ” . In his statements , he submitted that AIDS was a disease which could be detected with certainty by a special test but that , because it was very expensive , it was not employed . Bearing in mind that it was possible to detect HIV with sufficient certainty and that the ORG did not employ the test in question , because it was costly , then it should be held responsible for the infection of [ the child ] . The ORG has to bear the consequences of this [ negligence ] . It can not escape this [ responsibility ] . Either it has to employ the test which determines with certainty AIDS , or it fails to do the test and assumes responsibility for providing blood which was infected with AIDS .", "Moreover , the ORG is at fault for the following reason : As is clear from the statements of the doctors indicated by ORG and , following the contamination of the plaintiffs ' child , ORG issued a circular on DATE and required the questioning of donors . It thus follows that this circular had to be issued because no such questioning took place at all previously or was not done properly .", "Even assuming for a moment that the the Kızılay was not at fault in this incident , it still has strict liability ( kusursuz sorumluluk ) . This is the very requirement of justice .", "PERSON was infected with HIV at a very young age because of the blood given by DATE . He caught AIDS , which is , together with cancer , CARDINAL of the most dangerous diseases of our age . It is unnecessary to explain how evil and fatal this disease is . It is highly unlikely that little ORG will survive this disease ; most probably he will lose his life . Even if he survives , he will live with this disease throughout his lifetime and everybody will avoid him . Strictly speaking , by having been infected with this disease , PERSON has become a social outcast . He should not have sexual intercourse and should not get married during his lifetime . It is impossible for a living person to endure this . Furthermore , PERSON should be taken care of very well . It is impossible to put into words how father PERSON and mother PERSON suffer from sorrow because of ORG 's infection with this disease . In view of the foregoing , the court considers that the award of FAC for each plaintiff in respect of non - pecuniary damages appears to be low . In fact , the sorrow and pain suffered by the plaintiffs can not be compensated even if quadrillions were awarded . As noted above , the amount of compensation awarded is an insignificant one and merely aims at lessening their pain to some extent . Having regard to the fact that DATE compensation of MONEY is awarded in a defamation case and that the amount in question would not even suffice to buy a car by the current prices of DATE , it is obvious that the increase of awards is inevitable . It is considered that DATE is the time to increase compensation to a satisfactory level . For this reason , the determination of the amount in this case , albeit insignificant , was in line with this view .", "Notwithstanding the above , I should like to stress the following : the fact that an aid organisation like the Kızılay ... chose to pursue all avenues with full strength in order to avoid compensating ORG , instead of redressing his suffering , is thought provoking ... ”", "On DATE ORG upheld the judgment and stated the following :", "“ ... The case concerns the payment of damages incurred as a result of the tortious act of the defendant . In order to hold the defendant liable for the alleged act , it should be established that the defendant was at fault , that the plaintiff incurred damage as a result of the tortious act and that there was a causal link between the act and the damage suffered . There is no dispute between the parties that the damage in question occurred as a result of the blood used by [ ORG ] and that such an act is unlawful . Again , it is also undisputed that the plaintiffs purchased the blood , which was used for the treatment of ORG , from the the GPE office and that the blood was infected HIV positive .", "The focal point of the dispute is whether ORG is at fault ... It is a known fact that a foundation such as the FAC has a noteworthy prominence in meeting the need for blood and is worthy of credence on account of this vocation . In other words , there is an assumption that the blood obtained from the defendant meets expectations . However , it appeared that the blood obtained and used [ in the present case ] was unclean and so malignant that there was no possibility of purifying it . The fact that the [ donor ] was the bearer of the known virus can not absolve the defendant from liability . The defendant should have subjected such an important and vital substance to all necessary tests and screening using the necessary technology in accordance with the purpose of its use and the importance of that substance . Nevertheless it appears that the blood in question was not subjected to the requisite tests available in DATE '", "Turning to the defendant 's contention that the amount awarded in respect of nonpecuniary damage was excessive , ... [ I]t should be noted that the present and future life of the child , his mother and father have become dramatically insufferable . All segments of society will now avoid having any kind of social or physical contact with these people . Thus , it is apparent that the physical , social and personal values of all the plaintiffs , especially those of the child , shall be under attack during their lives . Having regard to the foregoing and particularly to the rule under LAW which stipulates ' ... parties ' social and economic conditions should also be taken into account ... ' , as well as to the current purchase value of money , the court concludes that the amount awarded in respect of non - pecuniary damage was not excessive . In this connection , when determining an amount for non - pecuniary damage , the amount in question should be satisfactory for the suffering party and should have a dissuasive effect for the harming party . Therefore , the defendant 's objections on this part of the case must be dismissed ... ”", "On DATE the ORG paid a total amount of TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL to the applicants , to cover the nonpecuniary damage awarded by the court and the statutory interest applied to that sum .", "On DATE the applicants initiated proceedings against ORG , requesting non - pecuniary damage .", "On DATE ORG rejected the case on the ground that the judgment of ORG which had issued a non - jurisdiction decision in respect of the proceedings concerning ORG had been pending before ORG . On DATE the applicants appealed against this decision .", "On DATE ORG quashed the decision and remitted the case to ORG for examination on the ground that the proceedings concerning ORG must have been considered to have become final , given that ORG had not appealed against ORG judgment .", "On DATE ORG refused the applicants ' compensation claims . Referring to ORG judgment , ORG reiterated that the FAC and ORG were both liable for the first applicant 's HIV infection . The court added , however , that the purpose of awarding nonpecuniary damage was not to provide full restitution and the award of non - pecuniary damage twice for the same incident would have resulted in unjust enrichment .", "On DATE the applicants appealed .", "On DATE ORG quashed the judgment of DATE , holding that there was no provision in domestic law which could have prevented the administration from being held liable jointly with other real or corporate bodies .", "On DATE ORG dismissed ORG rectification request against the above decision .", "In a judgment dated DATE , ORG held that ORG personnel had been negligent in the performance of their duties . The court thus awarded the applicants TRL CARDINAL plus interest at the statutory rate running from the date on which the proceedings had been initiated , namely DATE . Both the applicants and ORG appealed against the judgment . The applicants challenged the failure of the court to order the defendant to pay the legal fees , whereas ORG challenged the outcome of the case .", "On DATE ORG dismissed ORG appeal but partly quashed the judgment insofar as it concerned the fees . The parties did not inform the ORG about the outcome of these proceedings .", "On DATE ORG paid CARDINAL,CARDINAL.CARDINAL ORG to the applicants .", "On DATE the newly appointed ORG Kızılay presented their apologies to the applicants and decided to give a scholarship to the first applicant in order to contribute towards his educational costs . A delegation of board members visited the applicants and told them that the medical expenses of the first applicant would also be paid by the FAC .", "According to the information given by the applicants , the ORG rejected the applicants ' claim for treatment and medical costs which amounted to ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) and ORG MONEY , respectively , per month . ORG also rejected their request for payment of these expenses .", "The green card issued by the Governorship of GPE was cancelled right after the announcement of the judgments ordering the administration to pay compensation to the applicants .", "The compensation awarded by the civil and administrative courts covered DATE medical treatment expenses and did not suffice to pay the costs of medication used by the first applicant .", "The first applicant was not admitted to any school because of his condition and reactions from families of other pupils . He thus started his education at a hospital . Following public pressure and negotiations with ORG , he was ultimately admitted to a public school . Yet he has no close friends and suffers from stammering . DATE he sees a psychologist . Upon the latter 's advice , he attends drama and painting courses .", "The third applicant 's ( the father ) health has been severely affected as a result of reactions from parents of other children and the school administration 's refusal to admit his son to school . Currently he is unable to work and provide any income for the family .", "The family is in serious economic difficulty and is trying to pay the first applicant 's medical expenses with the help of family friends . Meanwhile , although some health associations offered help , they wanted to test some medications on the first applicant , which the family refused .", "CARDINAL DATE ( Law no . CARDINAL dated DATE ) provides :", "“ The powers and duties of ORG ... are as follows :", "...", "( c ) ORG and supervision of real and corporate entities which deal with blood and blood products ... ”", "DATE Regulation on ORG ( dated DATE ) reads :", "“ The following blood screening tests shall be conducted ; blood type , Rh , compatibility and cross - match , ORG tests , Hepatitis B , malaria parasite ... ”", "Common provisions in the Law on Blood and Blood Productions and the Regulation on Blood and Blood Products are as follows :", "“ All entities which deal with blood and blood products shall be inspected by ORG at least twice a year . Defects found during inspections shall immediately be remedied by the relevant entities . In the event the same defects are found to exist during the following inspection , the respondent individuals shall be subject to administrative and criminal proceedings . ”", "On DATE ORG sent a letter to all governors , for distribution to hospitals , blood centres and public institutions , informing them about AIDS and the measures to be taken to prevent the spread of this disease . ORG stressed that particular vigilance must be shown when choosing blood donors . In particular , it required that blood donors be subjected to a medical examination prior to giving blood and that their blood be refused in case any symptoms of HIV AIDS were detected .", "By a letter dated DATE , ORG informed the governors that all HIV AIDS cases must be reported to the health authorities . It noted that persons suspected of having HIV AIDS must be medically examined , and their blood , bodily fluids and all other relevant substances subjected to the requisite tests .", "On CARDINAL DATE ORG issued a circular to all governors ( circular no . DATE ) , for distribution to public and private hospitals and clinics as well as to the FAC , for prevention of the spread of the HIV AIDS disease . ORG noted in this circular that HIV AIDS could only be transmitted through sexual intercourse , blood transfusion or multiple use of a syringe . In this connection , the ORG stated that the anti titre test was the most effective way of diagnosing HIV AIDS . This could only be done by the LAW method . It stressed that , prior to blood transfusions , the requisite LAW tests must be carried out . To that end , all hospitals should be equipped with facilities for carrying out LAW tests on blood given by donors . The hospitals which did not have such facilities should send blood samples to the hospitals which had blood centres .", "By a circular dated DATE , ORG required all blood centres and stations to conduct ORG , ORG , AIDS and malaria tests on all blood and blood products . It stressed that no blood transfusions should be carried out if the aforementioned tests had not been conducted .", "DATE , ORG adopted a number of recommendations aimed at ensuring the adoption of common rules in the health field . In the below - mentioned ORG drew Member PERSON ' attention to the growing importance of a new and severe health hazard , namely AIDS , which was caused by an infectious agent transmissible by blood and blood products , and invited them to adopt a number of measures to prevent the spread of this infectious disease . These Recommendations were as follows :", "– Recommendation No . R ( CARDINAL ) CARDINAL , dated DATE , on blood products for the treatment of haemophiliacs ;", "– Recommendation No . R ( CARDINAL ) DATE , dated DATE , on preventing the transmission of infectious diseases in the international transfer of blood , its components and derivatives ;", "– Recommendation No . R ( CARDINAL ) CARDINAL on the prevention of the transmission of malaria by blood transfusion ;", "– Recommendation No . R ( CARDINAL ) on preventing the possible transmission of AIDS from affected blood donors to patients receiving blood and blood products ;", "– Recommendation CARDINAL ( DATE ) on the supply and utilisation of human blood and blood products ; and", "– Recommendation No . R ( CARDINAL ) CARDINAL on the screening of blood donors for the presence of AIDS Markers ." ]

[ "13", "2", "6" ]

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[ "The applicant , PERSON , is a GPE national , born in DATE and living in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a chartered accountant and a licensed insolvency practitioner . Having accepted an appointment as trustee in bankruptcy of the estate of a bankrupt on DATE , his appointment was confirmed by the Secretary of ORG on DATE . The purpose of his appointment was to ensure that substantial court damages due to the bankrupt were transferred to him as trustee for the benefit of the bankrupt ’s creditors . He claims that on accepting the appointment the Assistant Official Receiver ( “ ORG ” ) had led him to believe , in a conversation on DATE and in a letter of DATE addressed to the bankrupt ’s solicitors , a copy of which was sent to the applicant , that he ( the ORG ) had not waived the interest of the creditors in the award .", "However , the bankrupt was of the view that the ORG had in fact waived all claims over the award of damages and therefore commenced proceedings in DATE against the applicant , as trustee , seeking a declaration that the applicant had no interest in the award . The applicant defended the proceedings because of the ORG ’s assurances of DATE . During the proceedings , the ORG confirmed the statements made in DATE in a letter to the applicant ’s solicitors dated DATE and in an affidavit filed for the purposes of the proceedings .", "The bankrupt was successful . The judge held that he was satisfied that the ORG had disclaimed all right to the proceeds of the bankrupt ’s claims and that the evidence satisfied him that the ORG was at the time very much overburdened with his general caseload of insolvency work . The bankrupt ’s costs ( MONEY ( “ GBP ” ) ) were awarded against the applicant . The applicant ’s own costs were in the region of GBP CARDINAL . The applicant was personally liable for the costs and , though he had a claim against the estate , this did not assist him as there were no other assets in the bankrupt ’s estate .", "The applicant commenced proceedings in his own name for negligent misstatement against the ORG and against ORG ( “ ORG ” ) as allegedly vicariously liable for the tort of the ORG . The defendants applied to ORG to have the proceedings struck out as disclosing no cause of action or as being frivolous and vexatious and an abuse of process . They mainly argued that the statements of the ORG were made in his capacity as a potential witness and as a witness in proceedings ( those of the bankrupt against the applicant ) and that the ORG was entitled to immunity in that respect .", "On DATE , ORG found that the ORG was entitled to “ immunity from suit ” as a witness in respect of statements he had made as a potential witness in the bankrupt ’s proceedings against the applicant . While that immunity did not apply to the statements of DATE as they were made prior to those proceedings even being contemplated , the pleadings did not disclose that those statements were negligent and there was , in any event , no causal link between those statements and the applicant ’s loss .", "On DATE , ORG rejected the applicant ’s appeal . Giving the principal judgment of the court , ORG . identified the main question as being whether the ORG was entitled to immunity from suit in respect of the statements made to the applicant . However , since the existence of a cause of action depended on proof that the statements were negligent and were relied upon by the applicant and that he had suffered loss by doing so , PERSON examined those matters first . He found that the statement of claim did disclose a cause of action for negligent misstatement and that the claim should not have been struck out on the basis of a lack of a causal link between the statements and the applicant ’s loss .", "The next question identified by ORG was whether the ORG owed a duty at law to take care in statements which he made to the trustee in bankruptcy . He noted that ORG judge had found that the ORG owed such a duty and stated that , if the same arguments had been advanced to him , he would have similarly concluded . However , he considered the question to be “ intimately connected with the question whether the [ ORG ] is entitled to immunity from action ” . It therefore seemed convenient to consider the question of immunity first because if the ORG was exempt from suit ( either as a witness as argued in ORG or as an officer of the court as argued before ORG ) , “ there would be no duty enforceable at law on which the appellant could found his claim ” .", "ORG noted that bankruptcy proceedings were proceedings in a court of law , that throughout those proceedings the Official Receiver ( “ OR ” ) , and consequently an ORG , was an officer of the court both in connection with the proceedings “ in court ” and as regards his powers , duties and functions in the bankruptcy generally . The question was whether the ORG in making the statements relied on in the present case was “ liable to be sued in negligence ” .", "It was considered “ well settled ” that in a court of law , solicitors , counsel , witnesses and judges were “ immune from action for statements made in the course of the proceedings , even if made maliciously ” . As to whether an OR acting in the course of the liquidation of a company was similarly entitled to immunity from suit , reference was made to the case of ORG ( [ DATE ] CARDINAL K.B. CARDINAL ) where the court held that a libel action could not be brought against an OR for a statement made in his capacity as OR and contained in the official report submitted under the companies’ legislation for the purpose of company liquidation proceedings , the performance of such a duty being absolutely privileged .", "As to whether that immunity should extend to the statements in the present case ( the statements made by an ORG to the trustee in bankruptcy in DATE about the ORG ’s interest in the award ) , ORG reiterated that the courts should be slow to extend the scope of absolute privilege . He observed that , whenever a court denied a right of redress to a citizen who had suffered substantial loss on the grounds of public policy , it had to be recognised that the court was making a choice between the common interest and harm to the individual “ on political rather than legal grounds ” . A denial of the right to seek justice could only be justified on strong rational grounds and any policy arguments ( such as a “ floodgates ” argument ) demanded detailed analysis . He noted that the court in the ORG case gave CARDINAL reasons for the application of the immunity in that case : the duty of the OR to report with the greatest frankness all relevant matters ascertained by him and the fact that he was performing his duties as an officer of the court in connection with an inquiry which could be rightly considered judicial .", "In the present case , ORG considered that the need for the greatest frankness was , of itself , sufficient justification for holding that statements made in the course of such a report should be entitled to absolute privilege and that the OR should be immune from action in respect of them . He also considered that the administration of justice would be seriously impeded if this were not the case , as in the case of statements which formed part of an investigation carried out by ORG ( PERSON v. Director of ORG [ DATE ] CARDINAL All . ORG ) . In this regard , he did not find the undoubted distinction between an action for defamation and an action for negligence sufficient to reject a claim to absolute immunity from action in the latter case .", "ORG concluded :", "“ To be afforded immunity from suit in respect of the statements made , the official receiver must be acting in the course of the bankruptcy proceedings and within the scope of his powers and duties . In the preparation of his reports , which are to be accepted as prima facie evidence , statements which he makes are it seems to me as much in need of immunity as statements made by a witness in the preparation of a proof of evidence or in the course of investigating offences of fraud . In the present case the official receiver was acting pursuant to his duty ... “ to give [ the ORG in bankruptcy ] all such information respecting the bankrupt and his estate and affairs as may be necessary or conducive to the true discharge of the duties of the trustee ” .", "The getting in of the assets of the bankrupt ’s estate for the purpose of being distributed to the creditors is part of the bankruptcy proceedings and accordingly I would hold that in making the statements on which reliance is placed by the appellant the official receiver is entitled to immunity from suit . ”", "He went on to reject the contention that the ORG ( the other defendant in the proceedings ) was vicariously liable for statements made by the ORG and held that , in any event , given the ORG ’s immunity from suit , the applicant could not establish a liability which would fall to be met vicariously .", "In so concluding , ORG specifically responded to the argument that the law should encourage the use of all due care in the making of such statements and that the use of immunities did not have that effect . He replied :", "“ The answer to this submission is , I think , to be found in the observation of PERSON in GPE v. PERSON , CARDINAL Q.B.D. CARDINAL , CARDINAL :", "“ A court of justice has control over all proceedings before it : it has very great powers , to which I need not particularly refer , with regard to witnesses , solicitors and counsel ; the court can always check improper conduct . If such actions were allowed , persons performing their duty would be constantly in fear of actions . ”", "Thus the need to encourage the greatest frankness of expression by the [ OR ] and the power of the court to control or check breaches of duty by him , for example in failing to take proper care in making statements in the reports , counterbalance any suggestion that to grant immunity from action might encourage laxity or carelessness . ”", "Leave to appeal to ORG was refused on DATE .", "The Official Receiver ( OR ) is appointed by the Secretary of ORG . Because of his statutory office , the OR is an officer of the courts to which he is attached . He is therefore answerable to the courts for carrying out the ORG orders and for fulfilling his duties under law .", "When an individual is declared bankrupt , the OR has initial responsibility for the bankrupt ’s estate . He can in turn appoint an Assistant Official Receiver ( ORG ) who can represent the OR in all matters .", "The trustee in bankruptcy ( the person in whom the bankrupt ’s property initially vests ) is , generally speaking , the OR or the ORG when there is little property to administer in relation to the bankrupt ’s estate . Where a substantial asset does emerge , it is the practice for the OR or the ORG to request a licensed insolvency practitioner to accept an appointment as the trustee in bankruptcy . Once accepted , the appointment of the trustee in bankruptcy will be made by the Secretary of ORG .", "As described by ORG in the present case ( judgment cited above ) , the OR is a key figure in bankruptcy proceedings , which are regarded as proceedings in a court of law . Amongst other functions , under section CARDINAL of LAW DATE , it is the OR ’s duty to investigate and report on the debtor ’s conduct , take part in his public examination and , in the case of a fraudulent debtor , to assist in his prosecution if directed by ORG to do so . Under rule CARDINAL ) of DATE , the OR is also under a duty to give the trustee in bankruptcy all such information respecting the bankrupt and his estate and affairs as may be necessary or conducive to the true discharge of the duties of the trustee .", "“ Throughout the proceedings in bankruptcy , therefore , the official receiver as an officer of the court will be required to make reports and statements on which the court , the ORG , committee of inspection , creditors and others will rely . ”" ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "In DATE the applicant brought proceedings against ORG of GPE to claim welfare payments to which she was entitled in respect of her child .", "On DATE the ORG of the Voronezh Region awarded the applicant MONEY ( RUR ) . This judgment entered into force on DATE .", "On DATE the enforcement order was issued and sent to the bailiff service of GPE of GPE .", "On DATE the applicant complained to ORG of GPE about the bailiffs’ failure to execute the judgment in her favour .", "On DATE ORG of GPE informed the applicant that her award would be enforced in accordance with the order of priority set out by LAW .", "On DATE the bailiff terminated execution proceedings in respect of the judgment of CARDINAL January CARDINAL , as the debtor had no sufficient funds . The applicant was suggested to bring an action against ORG .", "On DATE the ORG of GPE granted the applicant ’s request to resume enforcement proceedings . In this decision the court dismissed the bailiff ’s argument that an action against ORG was necessary to secure execution of the judgment against ORG . The court found that the judgment of DATE could be enforced as it stood .", "The sum awarded has not been paid to the applicant ." ]

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[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE .", "CARDINAL .", "NORP The applicant moved to ORG DATE , as she was no longer able to take care of her needs in her own home . PERSON was owned and managed by ORG ( “ the ORG ” ) , acting under its duties pursuant to LAW DATE and the ORG and LAW DATE ( see paragraphs CARDINAL to CARDINAL below ) .", "DATE and DATE , the ORG carried out a consultation on the future of ORG . The consultation included a meeting with residents , families and carers held at ORG in DATE , attended by CARDINAL residents / carers ; face - to - face interviews with residents and their families in DATE ; a stakeholder event on DATE which was attended by CARDINAL people , including representatives of the ORG 's Over CARDINALs Forum , the Older People 's ORG , Age Concern , the Alzheimer 's ORG , ORG and ORG ; and general advertisement of the consultation procedure and seeking of public views , which resulted in DATE written submissions .", "NORP The subsequent report on the future of PERSON explained the background for the consultation exercise and the need for a re - assessment of care home provision in the area :", "“ The DATE cost of a bed in FAC is PERCENT higher than the cost of a residential care bed in the independent sector . This difference in cost is not related to a commensurate difference in quality and it is not , therefore , possible to demonstrate that ORG provides value for money . The resources available for funding social care services in GPE are reducing . As a result there is a need to ensure that expenditure is contained within the reduced resources available . The impact of this , in terms of the need to actually withdraw services , can be lessened if opportunities can be found to continue to provide services to the same number of people but at a lower cost . The replacement of residential care places , run directly by the ORG , with places purchased in independent sector homes offers such an opportunity .", "ORG was built DATE and , consequently does not meet the physical space standards set out in ORG , established by legislation . These standards ( relating to room size and en - suite facilities ) are currently only applied to new homes and those where the terms of registration are being varied . There is consequently no immediate requirement for ORG to meet these standards , but it has always been intended that eventually these requirements will apply to all care homes . It is estimated that it would cost MONEY to make the necessary alterations . Even if no requirement is introduced , expenditure on such alterations can only be avoided if the home remains unchanged for the foreseeable future . This would mean that , in the longer term , the home would be unable to respond to the changing needs and expectations of current and future users . If work were undertaken to achieve the increased room sizes within the current building , it would be necessary to reduce the number of rooms by CARDINAL . This would increase unit costs to a level that would make the home financially unviable . ”", "NORP The report identified a number of key themes :", "“ CARDINAL.CARDINAL ...", "Concern that closure would mean separation from other service users , with whom friendships have been established .", "Concern about the loss of relationships established with staff and the potential loss of employment for those staff .", "Fears that alternative homes may not be as good or be too far away from friends and family .", "Concern about the detrimental effect of the upheaval of moving on residents , particularly those with dementia .", "Appreciation of the high quality of care in the home .", "A view that savings could be made in other ways , without impacting on vulnerable people .", "A suggestion that existing residents should be allowed to remain , but that all new permanent admissions should be stopped , thus allowing the home to be gradually run down ( perhaps using vacancies for temporary respite stays ) .", "A view that current residents found the existing size of their rooms and the bathroom facilities satisfactory .", "A view that ORG should not be closed until plans to develop very sheltered housing in vicinity are in place . ”", "NORP The report considered all available options , including retention of the home , closure of the home , retention of the home until replacement very sheltered housing was available in the area , disposal of the home as a going concern to an external provider , and retention of the home for the lifetime of existing residents . As regards retention of the home , the report noted that :", "“ ... this would entail foregoing the opportunity to make savings and obtain better value for money through the provision of alternative placements for residents in other homes . At some point in the future , the home will be required to meet the new space standards , which will involve substantial expenditure and significantly reduce capacity and cost effectiveness . ”", "As to the closure option , the report stated :", "“ This would enable savings to be made , while still providing a service to residents through alternative placements , and be in line with the strategic direction for older people 's services . It would , however , cause distress to current service users and their families . ”", "NORP The report concluded :", "“ CARDINAL It is proposed that :", "ORG be closed .", "Current residents and their families be provided with intensive support to help them find alternative placements which meet their needs and prepare them for the transition ( initial assessments suggest that CARDINAL residents may now require nursing home care ) . Each resident 's needs will be individually assessed , in consultation with their families , and involving other professionals , where appropriate , to ensure that they have a personalised care plan designed to minimise any adverse impact . Reviews of research evidence by Professors Burn[s ] and ORG have shown that careful , individualised planning of moves to alternative care settings can mitigate against the negative effects of the change .", "Arrangements are made to enable friendship groups to move together to an alternative home . ”", "The report further noted :", "“ CARDINAL An assessment has been undertaken , which identified the need to reduce the impact of closure on service users by ensuring that careful , individualised care planning is undertaken for each resident to minimise any distress and disruption caused in moving to another establishments . Each service user and their carer will be provided with intensive support and a range of information on the availability of places in other homes in GPE , including making visits prior to reaching a decision . Where necessary advocates will be provided and the service user , and their carers , will be fully engaged in the process of their move , paying particular attention to their wishes , feelings and addressing cultural differences . ”", "The views of residents , families and carers as expressed in the face - to - face interviews conducted in DATE ( see paragraph CARDINAL above ) were summarised in a table annexed to the report .", "NORP In a separate appendix to the report , a summary of the meeting with residents , staff and carers at FAC was provided . The summary noted :", "“ There are several friendship groups in ORG and family members asked about the possibility of moving residents together in small groups . They were told that even if we do n't currently have CARDINAL places together , if there are CARDINAL in the home they want to move to we will hold the vacancies until we can move them all together . ”", "On DATE , ORG ( the ORG 's decision - making body ) approved the recommendation to close ORG .", "NORP The decision was subsequently called in for further scrutiny by ORG . The scope of the scrutiny was confined to determining “ what efforts had been made to find a site and funding for a very sheltered scheme in the local area ” . On DATE ORG considered the decision of ORG and , after hearing from the Director for ORG , resolved to take no further action .", "The applicant 's solicitor instructed a medical report from Professor PERSON , a consultant psychiatrist , in order to assess the potential effects of any transfer on the applicant 's health . The report of CARDINAL DATE noted as follows :", "“ In view of her extreme old age , PERSON current life expectancy is very limited DATE probably CARDINAL - CARDINAL years . It is however difficult to estimate individual life expectancy with any certainty . ”", "As to the possible risks of any transfer to the applicant 's life , the report continued :", "“ Despite extensive research in the area there is no conclusive evidence that , overall , mortality is increased if people in residential care are transferred ... There is however evidence that some people are at particular risk ... and that mortality is significantly increased in such individuals . Risk factors cited by ORG ( DATE ) which are positive in PERSON case include", "- confusion", "- incontinence", "- poor mobility", "In the light of this I would conclude that on the balance of probabilities PERSON already short life expectancy is likely to be reduced by PERCENT if she is moved from ORG where she has lived happily for DATE . The research summarised by FAC ( DATE ) suggests that this risk is likely to be mitigated somewhat by preparation and if she were moved together with other residents with whom she has made particularly close friendships . Such preparation is regarded as good practice by most ORG . ”", "The report concluded :", "“ PERSON has limited life expectancy .", "The ideal outcome for PERSON would in my view be for her to remain at ORG for the rest of her life .", "If however a move is unavoidable , the key issues to ensure would be", "- moving ' en bloc ' with her closest friends", "- continued accessibility for the very frequent visits that add significantly to the quality of her life ... ”", "On DATE the applicant 's solicitor sent the ORG a letter before claim and warned that she would apply for an injunction if any steps were taken to move the applicant from ORG . The ORG replied to the letter on DATE , refuting the applicant 's claim and requesting further details of the applicant 's Convention complaints . The ORG further disputed the need for interim remedies and provided an undertaking in the following terms :", "“ a ) We will not seek to move any of the named residents who remain at ORG prior to completion of their individual care plan ;", "b ) The number of staff retained will be sufficient to address the needs of the residents then present . ”", "On DATE the applicant applied to ORG for permission to seek judicial review of the decision to close ORG and for an order for interim relief to prevent steps being taken to implement the ORG 's decision of DATE to close ORG , including redeploying or making redundant any of its staff and moving any of the residents without a prior report from an expert psychiatrist confirming that the move presented no risk to the resident 's health or life . She relied on ORG , DATE and DATE of the Convention .", "In her statement of facts and grounds , the following was stated :", "“ PERSON is an intelligent lady who knows that the Defendant has made a decision to close her care home . However , she is unable to remember details such as what she ordered for lunch DATE . Her memory is insufficient for her to retain and weigh up competing options . On a number of occasions , she asks about the welfare of a family member , who has been dead for DATE ...", "PERSON has resided at ORG for DATE , as she was unable to look after her needs at home and had broken her hip . The nature of her disability is such that she needs CARDINAL-hour oversight and supervision , and would not be able to look after herself in , for example , very sheltered accommodation .", "PERSON has sufficient understanding to say to her son that she thinks it would ' drive [ her ] mad if she moves ' and has expressed that her desire is to stay at her care home . ”", "On DATE , the request for interim relief came before ORG , which expressed concern about the width and vagueness of the order sought and the evidential basis for the application . No order for interim relief was made , following the ORG 's confirmation that there were no immediate plans to move the remaining residents and that none would be moved pending the determination of the application for permission to seek judicial review . A further attempt was made by the applicant to seek interim relief in the form of a prohibition on staff movements . The application was refused .", "On DATE , judicial review of the decision to close the applicant 's care home was refused on the papers on the ground that it was an attempt to re - litigate points run and lost in other cases ( see paragraphs CARDINAL below ) . Further , Judge PERSON noted that the complaints were not sustainable on the facts and were unsupported by the medical evidence supplied .", "On DATE , ORG granted an interim injunction to prevent residents being moved before the hearing of the renewed application for judicial review on DATE .", "On DATE , Judge PERSON in the ORG refused permission for judicial review at a renewed hearing . The applicant lodged an appeal . It would appear that the injunction was extended to prevent transfer prior to the decision on the applicant 's appeal .", "On DATE the ORG gave an undertaking in the following terms :", "“ The ORG confirms that in each individual case it will assess–", "a ) whether moving the applicant presents a risk of death or to health ;", "b ) if there is a risk in being moved , whether or how might that risk be managed . That assessment will take place in the context of section CARDINAL ORG DATE assessment . ”", "On DATE and on the basis of the ORG 's undertaking , ORG refused permission to appeal the refusal to grant leave and discharged the injunction . ORG noted that :", "“ CARDINAL . PERSON report on PERSON is dated DATE . We know now that on DATE he e - mailed Miss PERSON a covering message for the report , which read as follows :", "' I look forward to your comments as to whether any amendments or clarifications are necessary . As you will see I am not convinced that the outcome of a move would be so bad for some of [ the residents ] . '", "In response to [ a ] request by email from Miss PERSON for further information he wrote :", "' I was also quite surprised at what I found . I think the people I saw were relatively well ( mentally in particular ) , were well supported by family and in particular were quite aware of the possibility of moving and pretty laid back about it . '", "Miss PERSON confirms to us that the phrase ' the people I saw ' included PERSON . Read together with the report , it is clear that , while it is in no way a licence to be less than extremely careful about PERSON welfare in any move , it does not predict harm to her from a move . ”", "Sedley LJ accordingly concluded that :", "“ CARDINAL . For my part , I am unable to see any viable ground on which this court can grant permission to appeal against Judge PERSON 's decision not to give permission to apply for judicial review . If there were any firm evidence that moving PERSON was going to shorten her life , the decision would be quite different . It would be nothing to the point that she had already enjoyed a long and active life . PERSON , like everybody else , is entitled to the full benefit of DATE that still remains to her .", "But when CARDINAL reads PERSON report with the accompanying messages that I have quoted , it is evident that there is no reason why PERSON [ LOC ' move ] to a new care home , provided it is properly managed , should do her any appreciable harm . ”", "As to the management of the move , ORG commented :", "“ CARDINAL . Is there then any reason in the evidence before us to suppose that it will not be properly managed ? ORG has made it clear that it is well aware of its legal duty towards its residents . Although it was not adequately spelt out in initial correspondence , it has more than once now undertaken in open court to conduct individual assessments , so far as these have not already been made , so that the move of each resident can be tailored to his or her own needs and own medical condition . That undertaking was given to PERSON when he was asked for an injunction and was given again to PERSON when she considered the application for permission to seek judicial review .", "We also now have the council 's equalities impact assessment , a document which , although only disclosed DATE , can be seen on examination to have been the source of the greater part of what was set out in the report to cabinet which was the foundation of the decision to close the home ...", "Among the tabulated information which has been gathered are the individual care plans of residents , the contents of the consultation process and the views of residents and relatives following face - to - face interviews by the assessment team ... ”", "He noted that the assessment included findings as to possible adverse impacts and steps which could be taken to reduce or eliminate those adverse impacts . Referring to the ORG 's undertaking that it would not move any resident before an individual impact assessment had been conducted , he concluded :", "“ CARDINAL . Thus , as it seems to me , the plans for relocating the residents of ORG meet the concerns expressed by PERSON . So long as those concerns are met , PERSON own evidence indicates no risk of undue harm to the residents , who are to be moved DATE this needs to be remembered DATE from an unsuitable home to a home better equipped for their needs .", "For those reasons , it seems to me that the HHJ Kirkham and PERSON were both right to refuse permission to apply for judicial review . For the same reasons , it seems to me that an appeal to this court would have no realistic prospect of success . In short , the council proposes , as it has done throughout , to take individualised measures to ensure , so far as humanly possible , that neither PERSON nor any of her fellow residents is distressed or harmed in any way by the move from CARDINAL care home to another . That is all that anyone can ask . ”", "Following the court 's decision , the applicant 's solicitor contacted Professor PERSON on DATE seeking clarification of the email cited by ORG in his judgment . She wrote :", "“ ... ORG DATE took [ your ] email to imply that there was no risk to PERSON in the involuntary transfer from ORG to another home .", "Could you please confirm whether or not you meant to imply ... that there would be no risk to health or of early mortality to PERSON if she was moved involuntarily from ORG . ”", "Professor PERSON replied :", "“ I am surprised to hear that .", "My comments applied to the group of people I had seen on DATE . It did not apply to PERSON . ”", "He referred to the findings of his report ( see paragraph CARDINAL above ) , also cited by ORG in his judgment .", "The applicant was transferred from ORG to ORG , QUANTITY away , on DATE , together with CARDINAL of her friends .", "An ORG relating to the applicant and dated CARDINAL DATE summarised the applicant 's health details and her needs . It noted that she received regular visits from her sons and daughters - in - law but that she did not sleep well and worried about her children . It further noted that she sometimes became distressed about changes to her routine and was anxious about the changes proposed at ORG . ORG report , also dated DATE , recorded that in the event of a breakdown of the placement , the applicant would require an alternative residential placement for physically frail older people .", "In a letter dated DATE to another resident of ORG , the ORG noted :", "“ The process of undertaking the assessments has continued and nears completion . While it is regrettable that not all family members wished to co - operate with the assessment process , we have been able to use the full assessments that were completed DATE and update them through the wide variety of sources of information that are currently used to support and meet your care needs .", "Within DATE , these will be complete and will identify where your care needs will continue to be met and how the process of transfer will be managed taking into [ account ] your needs identified in the assessment . The social workers responsible for your assessment will work alongside the staff at ORG to discuss the assessments and their outcome with you and how moves can be supported . ”", "By letter of DATE , the ORG advised the applicant 's solicitor that it was undertaking an assessment of each resident in accordance with section CARDINAL of ORG LAW DATE . The letter continued :", "“ These assessments include assessments as to whether moving each resident presents a risk of death or to health and if there is a risk in being moved , whether or how that risk might be managed .", "The Reports of PERSON on the residents obtained in the course of the judicial review proceedings are also being used to inform these assessments . ”", "The letter concluded :", "“ The ORG does not agree to the assessments being carried out by a consultant in the psychiatry of old age as suggested in your letter . As set out above , assessments are being undertaken in accordance with statutory provisions and the ORG 's undertaking given to ORG on DATE . I confirm any risks identified in assessments will be addressed before the residents move . ”", "On DATE , an FAC report on the applicant was prepared . It noted the frequent visits of the applicant 's sons and daughters - in - law and the fact that the applicant enjoyed being around other people and did not like to be alone . As regards care plan proposals , the report noted :", "“ ORG will provide support and assistance to enable PERSON to select an alternative provider of care .", "PERSON has been provided with a list of suitable homes within a QUANTITY radius of PERSON house . She has also been offered a free advocacy service provided by Age Concern . She has been given information and advice on financial considerations and offered ORG [ ORG ] reports on any homes that she may be interested in .", "Mr LOC ( son ) has been advised that we will offer transport to view the homes and staff to accompany her . He has also been advised that we will endeavour to place her within the area of her choice and with her CARDINAL friends from the home if possible . Mr LOC has advised us that he would like all residents to be able to move together to a nearby home in GPE if possible . I have agreed to put this option forward to be considered .", "PERSON will also be offered a memory book of PERSON and its residents and a leaving party when the time comes for moving .", "PERSON has been offered a bed at the ORG dual registered home , along with her CARDINAL friends . This was the nearest home that the whole friendship group could move to together and is QUANTITY from PERSON house . As there are no residential vacancies at present and PERSON requires a high level of care , she will initially move to a nursing bed at a cost of £ MONEY DATE . An assessment has been requested by the PCT for the funded nursing contribution . If nursing level care is not required on an ongoing basis , then PERSON will be offered the next available residential bed . PERSON will not pay a top up but will continue to pay the same assessed contribution as she pays at ORG . Her family have been advised to view the home and arrangements have been made for PERSON to visit if she wants to . ”", "The intended outcome of the care plan was to :", "“ ... provide an alternative residential placement for PERSON that meets her needs and maximises her choice and quality of lifestyle . To minimise the risk from falls and tissue damages by ensuring that TIME care and support are provided . ”", "NORP The options considered were described in the report and included the following :", "“ Due to her recent tissue deterioration , a nursing home placement has been considered but both ORG and district nurses feel that at present her needs can be met in residential care and would not be improved by a move to a nursing home . A dual registered home may be a suitable option if she views such a home that she likes . PERSON needs will continue to be monitored closely up until the placement is made to ensure that she is placed in the most suitable environment .", "...", "After discussion with ... [ the ] Team Manager on DATE it was felt that as PERSON condition is stable , ... she should remain at PERSON for the short term . ”", "The report also identified moving and handling issues , noting that following a fall , the applicant 's mobility was reduced such that she required CARDINAL people and a frame to transfer . It further noted that her condition appeared to have stabilised in DATE preceding the report .", "The report recorded that the applicant preferred to stay at ORG , and if she had to move preferred to stay in GPE . It noted that her family wished her to remain in the area to facilitate visits and that her son wanted her to move with other residents of ORG if possible .", "An Adult Full Review dated DATE noted the following :", "“ As PERSON was closing PERSON moved to the ORG nursing home on CARDINAL along with CARDINAL other residents . Initially she settled well but has had TIME where she has n't slept and has become agitated at times . She continues to need encouragement to eat but has maintained her weight ... She is now able to walk short distances with assistance .", "On DATE a safeguarding investigation was raised as bruises were noted on both of PERSON 's lower arms . The cause can not be determined but it may be due to poor handling and the fact that PERSON bruises easily . As PERSON has reported that she is happy at the home it was felt appropriate to close the safeguarding . PERSON has stated ' I like it here ' . She said the food was good and the staff were kind . When asked if she wanted to consider moving PERSON stated ' I do n't want to move again ' . ”", "Section CARDINAL(CARDINAL ) of LAW DATE provides :", "“ ... a local authority may with the approval of the Secretary of ORG , and to such extent as he may direct shall , make arrangements for providing—", "( a ) residential accommodation for persons aged DATE or over who by reason of age , illness , disability or any other circumstances are in need of care and attention which is not otherwise available to them ... ”", "Under section CARDINAL ) of the DATE Act :", "“ In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided , and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection . ”", "Section CARDINAL(CARDINAL ) of ORG LAW DATE provides :", "“ ( CARDINAL ) ... where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services , the authority—", "( a ) shall carry out an assessment of his needs for those services ; and", "( b ) having regard to the results of that assessment , shall then decide whether his needs call for the provision by them of any such services . ”", "A number of reports have been prepared by experts in the area . Relevant extracts of a selection of reports cited in domestic proceedings are set out below .", "In DATE , Professor PERSON published an article entitled “ Relocation of the Elderly : ORG ” . The article , a review of CARDINAL studies into relocation of the elderly , concluded as follows :", "“ In summary , we show that trends in the current health care marketplace may be precipitating relocation of the elderly . The potential negative and positive outcomes of relocation investigated include changes in mortality rates , morbidity , and psychological and social changes . In this review , we found few consistent negative or positive outcomes resulting from relocation ; indeed , the majority of studies we reviewed did not identify any significant resident outcomes as a result of relocation . However , it should also be noted that we also show that many relocation studies have analytic limitations . By combining this prior literature in an analytic model , we help show some opportunities for future research in the relocation of the elderly . ”", "The section on “ mortality ” concluded :", "“ CARDINAL empirical studies have investigated whether residential relocation is associated with an increase in mortality . No increase in mortality post - relocation was observed in either of these studies , but clearly we should be cautious in drawing any conclusions from CARDINAL studies . ”", "In the context of legal proceedings in DATE , Professor PERSON was asked to prepare a report which addressed the likely effect of moves on the physical and mental health of elderly residents of care homes . In his report , he noted :", "“ CARDINAL . Amongst the life events recognised to be particularly stressful is move of accommodation . This is true whether an individual is moving from CARDINAL house to another either in an enforced way or in a planned way , and as Dr ORG remarks in paragraph CARDINAL of his report of DATE for older people in particular moving residence is amongst the highest risk factor for triggering an anxiety response and possible depression . It is only marginally less significant than death of a spouse ' . ”", "As to the reliability of the available literature and data on residential care home moves , he noted :", "“ CARDINAL . Turning again to the literature of the impact of relocation of older people from residential home to residential home or similar institution to similar institution : PERSON has produced a helpful and scholarly review including detailed analysis of some of the papers made available to the ORG , as well as reference to some of the work . It is important to put the published literature into context . Papers and special reports are put together and offered for publication with a view to conveying particular messages or making particular points . As PERSON points out , there are no circumstances in which older people with or without evidence of frailty would be exposed by design in a controlled experimental way to the stresses associated with closure of homes , relocation to alternative environments , and perhaps relocation back to newly refurbished accommodation . There would be no justification for such an experiment ; it would be deemed economically impracticable and ethnically unacceptable .", "What we have is a selective reporting of experiences that occur when relocations are required as a consequence of unplanned tragedies such as a fire in a home , the discovery of safety problems , etc , or in response to alternative practical considerations such as the nonviability financially of a sponsoring organisation or a requirement such as that operative in the present case to improve standards , to reduce the overall beddage of a particular component of the care sector .", "So materials that come into the public arena are represented as selected sample . Some are selected by authors wanting to make the point that moving old people puts them at risk and seeking to document and quantify that risk and its impact . Others wanting to make the point that despite the common understanding that moves are stressful and can cause deterioration in health and bring forward death , it is possible by taking careful thought and planning , engaging the individuals and their families and the care staff in making suitable arrangements , to minimise the adverse impact of relocations . ”", "Commenting on his assessment of the possible risk of increased mortality resulting from a move , he said :", "“ DATE . In summary statements , PERSON reflects :", "Paragraph DATE where research has been undertaken , the evidence is equivocal ' and in paragraph PERCENT ' broadly , the epidemiological evidence suggests that , under optimal conditions , relocation from CARDINAL care setting to another does not significantly increase the risk of mortality or morbidity ' .", "My own view is that from common experience , from my clinical experience , and from an informed review of the literature , it is an inescapable truism that relocation is a stressful event and can precipitate problems of mental health , physical health , and even bring forth death . There are published examples of good practice that when every care and consideration is taken into account in planning and conducting moves , and where matters are not confounded by unplanned or unforeseen complications , the impact of this stress can be minimised . Achieving ' optimal conditions ' for individuals and groups of individuals is , in practice , very difficult to achieve and can not reasonably be guaranteed . ”", "He summarised factors which could have a bearing on the resilience of elderly residents facing a transfer to another care home :", "“ DATE . Some individuals are more susceptible to the impact of relocation than others . They are likely to be more susceptible to any life event . Characteristics which identify people likely to encounter the greatest difficulty include :", "- evidence of previous breakdown in response to stress .", "- DATE with very advanced age making it more difficult to adapt to change .", "- gender – men by and large adapt less well to change and stress than women .", "- the presence of pathological impairments – these might produce physical impairments , reduced mobility , and incontinence of urine .", "- they may make it more difficult to understand the environment DATE reduced eyesight or blindness , reduced hearing or deafness , or other loss of sensory facility .", "- the presence of depression , anxiety or a demonstrated vulnerability to such symptomatology is likely to be exacerbated by any move .", "- the presence of cognitive impairments , i.e. impairment of the facility to understand , comprehend , remember and reason with the information that a move is to be made makes the individual particularly vulnerable , for no matter how much work is done to explain the situation and to help them come to terms with the situation , all that work may be lost because of the failure to register and to remember . In addition , fragments of an understanding and the anxieties associated with that understanding or CARDINAL understanding , may come back repeatedly to haunt the individual .", "Combinations of these vulnerability factors increase the risk of adverse reactions to the relocation stress and , of course , such combinations are not uncommon amongst individuals who are living in residential care . ”", "On options available to minimise the risks to residents of a transfer , PERSON commented :", "“ DATE . ... The first consideration has to be to examine again whether it is necessary or inevitable that the relocation proceeds . There is little doubt that the best interests of these individuals will be served by continuing to live in the environment that they choose , have chosen and have not moved from .", "The next consideration is to deal with each individual as an individual , investigating the situation carefully with them and with their families , their medical practitioner advisers , and anyone else who is relevant , so that they can be made aware as far as they are able of the proposals and their implications and the alternatives . Some will choose to move to alternative accommodation of their choice rather than remain in a situation of uncertainty and potential conflict ...", "Others will choose to remain in their present care environments and to accept changes that will occur within that environment and the programme of relocation presented to them by the authorities . For these individuals , the authorities have additional responsibilities . It is clear that if individuals or groups of individuals are to move from CARDINAL environment to another , then the receiving environment must be at least as well physically attuned to their needs as the CARDINAL from which they are moving . It must be warm and comfortable and have suitable facilities , and to be accessible by friends and relatives who would wish to visit . Where it is possible for groups of friends to move together , then this has every advantage for the friendship circle will be sustaining both in anticipating the move , coping with the move , and reflecting on its aftermath . Similarly , where it is possible for staff to move as a group with their charges , there is every advantage . The familiarity of a trusted carer or nurse is extremely reassuring to the individual . Older people with multiple pathologies have multiple needs based on those pathologies as well as upon their personal preferences and styles . These are known to those who care for them and carrying that expertise from CARDINAL situation to another reduces and minimises stress . There may be advantage in brand new and special equipment but there is also advantage in carrying with CARDINAL favoured and trusted comforts , which might include a chair , table , radio , etc . It is extremely important when such relocations are being contemplated , that extremely careful arrangements are made for continuity of medical care and support . If it is possible for CARDINAL practice to continue to be the provider , that is maybe ideal . If there is to be transfer from CARDINAL practice to another , it is important that all information is conveyed from the donor practice to the receiver practice well in advance , preferably by personal contact . It is important that a receiving environment is well prepared in advance of DATE of a move . It may be possible to move all residents from CARDINAL home to another on DATE but it is a difficult logistical task . There is a requirement for staffing at both ends as well as staffing to conduct the transfer . The involvement of people 's families in the process can be very helpful . It is important not to try to do too much all in one frantic move . It may be necessary to undertake a series of moves of a modest number of individuals so that everyone 's needs can be properly attended to . There are considerations of DATE and climate . Moves during the cold of DATE are hazardous and should be avoided for cold is stressful and deaths preferentially occur in DATE . ”", "Professor PERSON was asked by ORG PERSON to prepare a report following the death of CARDINAL elderly residents who had recently moved care home . He summarised the relevant literature as follows :", "“ In the scientific literature , there have been a number of reports over DATE concerning the effects of the relocation of older people , either from ORG ) continuing care wards to homes , or from CARDINAL home to another . A review by ORG , summarized the literature over DATE . The mortality of elderly residents who are moved compared to those who are not , seems to be increased by CARDINAL . It is clear from a number of studies that the people most at risk are those who are relatively immobile , need to be helped with dressing and washing , have significant physical illness and who have severe dementia . A combination of these risk factors puts a resident at greater risk . It has also been suggested by CARDINAL Inquiry into such a transfer , where CARDINAL deaths occurred within DATE of moving ( ORG , DATE ) that poor planning of the process was partly to blame – implementation and monitoring of the transfer was not carried out in sufficient detail and there was not enough time given to new staff to become familiar with the needs of transferred residents . In DATE , ORG produced guidance on the transfer of frail older people from the ORG ( ORG , DATE ) . Some studies ( for example that of ORG and Crome , DATE ) have found no increase in mortality but note that at the time of transfer a lot of attention had been paid to the organisation of the process and families , carers and staff were involved . Publications since DATE have included : PERSON ( DATE ) who concluded from his study that physical ill health and old age , rather than the trauma associated with relocation itself , explained mortality ; ORG ) who confirmed how disruptive it is for older people with dementia to move and found a death rate of CARDINAL after DATE and ; PERSON ( DATE ) who measured the physical effects of moving on levels of stress hormones in the body of older people who had taken part in a relocation and found that the move was associated with much higher levels DATE after the move .", "Thus , it has been well documented that there is an increase in mortality in older people when they move from CARDINAL setting to another . The risk factors are being frail and hav[ing ] dementia . Organising the transfer with proper care can mitigate against the negative effects of the move . ”", "NORP In his report , PERSON commented :", "“ CARDINAL . Many local authorities have revised and published policies and protocols on home closure since the DATE publication by ORG of ' Guidelines for the closure of care homes for older people : presence and content of local government procedures ' , ORG A GPE .", "I have looked at a crosssection of these . Most local authority protocols and procedures now specifically address most of the issues identified in the ORG , PERSON and ORG reviews . ”", "Reviewing previous publications and research in the field , Professor PERSON noted :", "“ CARDINAL . Professor PERSON refers to methodological limitations of devising effective research to measure the effects of home closure on older people which are reflected in the existing literature . Effective control studies have not been mounted , either because they would be unethical or impractical .", "PERCENT of local authority care home residents suffer from some degree of dementia and PERCENT from significant depressive illness ... Such individuals are unlikely to be capable of consent or agreement to be subjects for research or agreeable to publication of their case histories , even if successfully relocated .", "Most case studies have only been published because there were significant adverse outcomes for the residents . This represents a ' publication bias ' in favour of ' bad news ' rather than ' good news ' outcomes . In this context it is therefore highly significant that there are several published reports indicating ' successful ' transfer of vulnerable older people where preparation was undertaken to a high standard . ”", "On the risks of transfer , he concluded :", "“ CARDINAL Professors GPE and PERSON have provided a fair summary of the existing evidence , albeit much of it lacks research vigour about the particular risks faced by older people moving from CARDINAL care home to another ...", "As a consultant trained in both geriatric medicine and psychiatry I have seen consequences of both hasty and well planned care home transfers of CARDINAL of vulnerable older people over DATE . In broad terms I fully endorse the conclusions of Professors PERSON and PERSON , which is that older people in care homes are a vulnerable group who are at risk of deterioration with ill planned relocation . However , careful planning and preparation of individuals , following personalised care plans and maximising continuity of care , can minimise the risks such that the risk of an adverse outcome is very low . ”", "In his report , PERSON was asked to address the question whether , having regard to the reports of Professors PERSON and PERSON , it was in principle possible to transfer care home residents , in particular individuals suffering from dementia , without any increased risk of mortality . He responded :", "“ CARDINAL . Yes , provided the vulnerability of individual residents is recognised and assessed to a high standard , with multi disciplinary and family / carer consultation and all steps ( consistent with the experience and best practice as outlined by PERSON , Jolley , ORG and in this report ) are taken to avoid unnecessary risk and trauma to individuals facing transfer . It needs to be acknowledged that in any population of frail older people with an average age in DATE there will be a small number of deaths to be expected in DATE prior and following transfer . ”", "The question of the impact of the closure of residential care homes on residents ' human rights has been brought before the domestic courts on several occasions . In R ( ORG and others ) v. PERSON [ DATE ] EWHC CARDINAL ( ORG ) , PERSON considered the Articles CARDINAL and CARDINAL arguments in respect of a proposed care home closure and noted :", "“ CARDINAL . I am prepared to assume that a positive obligation of the kind suggested by [ counsel for the applicant ] was imposed on the ORG . In this case , ORG and CARDINAL are being invoked to impose positive obligations on the ORG as they themselves are not responsible for killing or torturing the claimants . The result is that the limits of the obligations are defined by proportionality . That means the obligation on the authority to take measures to protect the citizens from breaches of their LAW rights is limited in that the obligation must not impose an ' impossible or disproportionate burden on the authorities ' ( PERSON v. GPE CARDINAL EHRR CARDINAL [ CARDINAL ] and R ( Pretty ) v. ORG [ CARDINAL ] ) . ”", "He concluded :", "“ DATE . The LAW claim fails for CARDINAL reasons . First , I do not consider that there is evidence that the risk to the claimants ' lives would reach the level needed to engage LAW as explained by [ counsel for the applicant ] in the light of both the precautions and steps to be taken by the ORG . The claimants have not adduced any evidence to criticise or to comment on the steps that the ORG consider adequate . Second , in any event , even if that is wrong I consider that the ORG has met the requirements relied on by the claimant , which is , according to [ counsel for the applicant ] , to ensure that ' the state did all that could reasonably been required of it to prevent the [ claimant 's ] life being avoidably put at risk ' ( ORG v. GPE ( DATE ) CARDINAL EHRR [ CARDINAL ] ) ... Third , as I will explain at the end of this judgment , the ORG has agreed to liaise with Professor PERSON or another consultant in the psychiatry of the old aged on the best ways of moving the claimants so as to reduce the risk to them . It was agreed that the parties would have liberty to apply if problems arose . This will ensure that the claimants ' lives will not be at risk . Fourth , if I had been in any doubt about LAW CARDINAL claim the factor to which I have just referred would have led me to the same conclusion that this Article QUANTITY challenge fails because the courts accord a broad area of discretionary judgment to a public authority in deciding what is a fair balance between the interests of an individual and of the community ... This would prevent the ORG 's decision being impugned on LAW grounds . Thus , I conclude that the claimants ' rights under LAW will not be infringed by the move . ”", "The Article CARDINAL complaint was dismissed for similar reasons .", "As to the Article CARDINAL complaint , PERSON held that :", "“ DATE . I consider that the claim in respect of Article CARDINAL fails for CARDINAL reasons . First , there is no cogent evidence of disruption of home or family life or interference with the right to physical integrity ...", "The way in which the moves are and have been planned ... indicates that a great deal is being done to ensure that the move is as undisruptive to the claimants as it could possibly be . No cogent criticism has been made by [ counsel for the applicants ] of the proposed arrangements . It is particularly noteworthy that the ORG intends to do all that is necessary to preserve friendship groups and thus shows respect for what would be covered under LAW ) as ' family life ' . The other measures ... show the claimants ' rights to physical integrity and respect for home and family life have been safeguarded and are not infringed . As I have explained ... individual assessments of all residents have been carried out . I have explained ... the way in which the ORG has agreed to liaise with the claimants ' expert consultant psychiatrist on the best ways of moving the claimants so as to reduce any risk to them .", "Second , the financial resources of the ORG is an important element to be considered to the balancing exercise required in the application of Article CARDINAL(CARDINAL ) ...", "A third reason why this claim based on DATE must fail is that the ORG is entitled to a substantial degree of deference relating to the way in which it allocates its resources and provides services . This is relevant as Article CARDINAL(CARDINAL ) requires a balancing exercise . These are matters very much within the expertise of a local authority and with which a court should only interfere where the evidence is very clear , but this is , as I have explained , not such a case . ”", "Subsequently , in R ( ORG and others ) v. ORG [ DATE ] EWHC CARDINAL ( Admin ) , ORG Judge PERSON , having reviewed carefully the various reports put before him ( including the PERSON , PERSON and ORG reports ) , concluded :", "“ CARDINAL . ... In my judgment , having considered this material , it seems to me that at most the material establishes that in some studies a statistical increase of the sort alleged by the Claimant has been established , while in others it has not . Further , it seems to me that on proper analysis what the material shows is that different people may react to a move in different ways , and that moves which are sensitively and thoughtfully handled can be achieved without a significant increase in mortality , although there may be individuals who can not be moved however carefully the moving process is handled , though such cases will be rare . ”", "On the LAW complaint , he found :", "“ DATE . I reject the suggestion that in taking the decision to close , the authorities violated LAW . As PERSON said in PERSON :", "' CARDINAL ... the evidence does not point to a breach of LAW in this case . No particularised medical evidence has been filed showing that the life of any particular resident is seriously at risk . What the claimant needs to establish is that “ the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge ” – see PERSON . The claimants have not established that in this case . '", "In my judgment that point applies equally here as it did in that case ... [ T]here can be no doubt at all that all relevant LAW issues will be considered before any resident is required to move ... ”", "Judge PERSON referred to PERSON conclusions as to why LAW claim in R ( Haggarty and others ) failed ( see paragraph CARDINAL above ) , and concluded that all of the points made by PERSON also applied in the case before him . He concluded :", "“ In the circumstances , whilst I am prepared to grant permission in relation to the application to bring judicial review proceedings , I dismiss the applications for reasons that I have given . ”", "A further challenge to the closure of a residential care home and the transfer of a DATE old resident was brought before the courts in the case of R ( PERSON ) v. PERSON on ORG [ DATE ] EWHC CARDINAL ( Admin ) . Leave to seek judicial review was granted on limited grounds relating to the information before the ORG when it took its decision to close the care home . PERSON explained :", "“ CARDINAL . The claim ... raised a number of grounds for seeking judicial review , none of which , save for one , I concluded was arguable ... The first was that it was said that consultation was not sufficient in law bearing in mind that neither residents or relatives were made aware of the risk to health of closing FAC and relocating residents . In my judgment that was not an arguable ground .", "Lord Justice PERSON established a number of principles in R ( ORG ) ex p PERSON [ DATE ] FAC . I am perfectly satisfied that those principles were all satisfied in this case . In particular the question and answer document disclosed that the issue of risk of death to residents was raised , and canvassed during that consultation , sufficiently so that the specific question and the response to it appeared in the question and answer document . Thus as the purpose of the consultation is to enable those being consulted to raise issues for consideration by the council , plainly the consultation was sufficient for that purpose and the mere fact that an individual 's relatives may not have been aware of the risk does not in any way cast doubt on the lawfulness of the consultation process .", "Ground CARDINAL sought to argue that LAW was engaged . Again in my judgment that ground was not arguable . Before such an article is engaged the hurdle to be surmounted is a high one ...", "A certain amount of material has been placed before the court as to the nature and degree of risk to life or health from such relocation . I will return to that evidence in a moment . But suffice to say that the level of risk is small . The evidence is entirely generic . It does not remotely come close , in my judgment , to engaging LAW ...", "...", "The CARDINAL ground on which I did conclude that the case was arguable was whether the issue of the risk to health or life of residents had been sufficiently placed before the councillors who were taking their decision on DATE and confirming it on DATE so as to enable it to be said that the council had considered that relevant issue . It was on the basis that the councillors were said to have had insufficient information about the nature and the extent of the risk of the health or life of the residents from relocation when they took their decision on DATE and/or when that decision was confirmed on DATE . Criticism was made of the fact that there was no reference to that risk at all in the main report . The issue was raised only tangentially in one of the many questions the subject of the Q and A document , and in particular question CARDINAL .", "The argument was ... that at that stage the issue was not given such prominence or seriousness of consideration to enable or ensure that the councillors engaged properly with it and gave it its appropriate weight ... ”", "DATE . In assessing the evidence of the risk to life and health of elderly residents from an enforced transfer , PERSON noted :", "“ CARDINAL . ... It is perhaps a matter of common sense that just as moving house is CARDINAL of the most stressful life events so too would be relocation of an elderly and frail person from CARDINAL residential home to another , particularly where the decision to relocate has not been taken by that person but is the product of a decision taken by an administrative authority . ”", "He made reference to reports prepared by experts for the claimant and for the local authority and noted the terms of a joint statement agreed by both experts in the following terms :", "“ CARDINAL . We have no fundamental disagreements with the contents of each other 's reports .", "We agree that the current situation is not ideal in that it did not offer the claimant adequate social stimulation . On the other hand , the status quo posed no increase of morbidity or mortality .", "However the current situation may not be sustainable and may result in an unplanned move which in our opinion may be more detrimental to both her mental and physical health than the planned measures which have already been put in place .", "The ultimate and final decision rests with the court . Both of us have endeavoured to suggest ways in which the risks can be mitigated , not eliminated . ”", "He considered the reports of Professors PERSON and PERSON ( see paragraphs CARDINAL above ) and the argument that the information before the councillors who took the decision to close the home was inadequate . He concluded :", "“ CARDINAL . I have to look at the whole process of the taking of the decision which includes the scrutiny meeting on DATE . I was drawn with specific attention to the terms of the call - in which explicitly raised the question of the impact of closure and relocation on the health of the residents ... The report drew specific attention to that point and responded to it in ... comprehensive terms ...", "In my judgment the terms of the call - in and the way in which it was dealt with in the report make it perfectly clear that the issue of the impact on the health of the residents of a decision to close and relocate was before them and was considered by them in a prominent and focussed way ... It was plainly implicit in the fact that this consideration had been raised and the terms in which it was raised that there was perceived to be a potential risk and it was a risk that had to be addressed . ”", "In the subsequent case of R ( ORG and others ) v. ORG [ DATE ] EWCA Civ DATE , decided after the decision of ORG in the applicant 's judicial review proceedings , ORG in ORG considered the medical reports prepared by Professor PERSON , which identified a significant reduction in life expectancy if the claimants were moved to a new care home . ORG noted that Professor PERSON 's reports were reliant on research conducted by others , and commented that :", "“ CARDINAL . In a field of research in which it is not possible to conduct experiments , such indeterminacy is unsurprising . ORG 's data do of course include studies which suggest that poorly handled relocations can cause stress and anxiety , which in turn can adversely affect the life expectancy of the more vulnerable . Both local authorities have throughout been well aware of DATE one wonders indeed whether it requires research to establish it – and have been advised by specialists about ways of preventing it . ”", "He concluded that it was for the court to consider whether Professor PERSON 's conclusions were justified , taking into consideration the sources cited . On this , he found :", "“ DATE . ... while Professor PERSON concludes that on the balance of probabilities PERSON life expectancy will be reduced by relocation ' to a significant degree ' , the FAC survey on which he relies confirms only that relocation may have that effect and ... that further research is desirable .", "It would in our judgment require at lowest evidence of a real risk that relocation was to be undertaken in a way injurious to the particular patient 's health to trigger the supervisory jurisdiction of ORG over the conduct of local government . Neither the material relied on by PERSON nor the research relied on by Professor PERSON establishes this in PERSON or any other of the cases before us . Exactly the same is the case , as this court has pointed out on an earlier occasion , if it is recognised that the duty owed by the local authorities to these patients is not a public law duty at all but the common law duty of care DATE a question of private law , but CARDINAL which introduces a standard of care entirely consonant with the Art CARDINAL obligation . ”", "Sedley J noted that Professor PERSON had clarified that :", "“ Optimal procedures will substantially reduce but can not eliminate risk – some people are nonetheless likely to die prematurely ... ; [ this risk ] can not always be reduced to ' very low indeed ' though in most cases it can probably be reduced to ' low ' . ”", "In respect of the claimant 's LAW complaint , ORG concluded :", "“ CARDINAL . The test of a ' real and immediate risk ' is ' one that is not readily satisfied : in other words the threshold is high ' ... The evidence before this ORG falls far short of this threshold .", "This is not the first time that the courts have considered whether a decision to close a care home breaches a public authority 's positive obligations under LAW . In R ( on the application of ORG ) v. ORG [ DATE ] EWHC CARDINAL PERSON reviewed the case law in this area and assessed its application to circumstances similar to those before this Court : § CARDINAL - CARDINAL . His review and conclusions , which have not been directly challenged before us , ought to have put those advising the present claimants on clear notice that their case faced formidable difficulties of principle , and that to involve them in litigation might contribute to the stress of relocation .", "These are the principal reasons why permission to appeal was refused in both cases ... ”", "He added :", "“ DATE . On the present applications PERSON made it part of her written and oral submissions that this court , giving judgment in the recent case of R ( LOC ) v. ORG [ DATE ] EWCA Civ DATE , had said that ' if there had been a risk to life the result would have been very different ' . In fact , as the transcript confirms , the court said that it would be prepared to intervene ' if there were any firm evidence that moving [ the resident ] was going to shorten her life ' . That quite different state of affairs did not obtain there and does not obtain here .", "Beyond this there has to be concern at the drain on public funds on both sides . It may be that the litigation , at least in its early phase , concentrated the minds of local authorities on the nature and extent of their duties towards care home residents who had to be relocated ; but there has been no evidence before the courts in recent applications of which we have knowledge that these duties are being either ignored or violated . Nothing is wholly without risk , but so long as councils do the best that can professionally be done to minimise identifiable risks to frail and elderly people in their care , the law has no immediate role to play . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "From DATE he lived in an apartment rented from the ORG in a nationalised building . On DATE , under PERSON no . LANGUAGE on the legal status of certain residential property , the applicant bought that apartment from the ORG .", "In a final decision of CARDINAL DATE ORG allowed an action ( acţiunea în revendicare ) brought by the former owner against the ORG for recovery of possession of the building where the applicant ’s apartment was situated .", "Based on that decision , the former owner lodged several actions for recovery of possession against the persons who had bought apartments in the building in similar conditions , including the applicant .", "In a final decision of CARDINAL DATE ORG ordered the applicant to surrender possession of the apartment to the plaintiff . The court found that the former owner ’s property title deed , as it had been confirmed by the final decision of DATE , prevailed over the applicant ’s purchase contract . It also considered that the applicant ’s bona fides in concluding the CARDINAL DATE contract was relevant only in the event that the applicant lodged an action for compensation against the ORG .", "Meanwhile , the same ORG did take into account the LOC good faith in dismissing actions lodged by the former owner against other persons who had bought apartments in the same building . Thus , on DATE ORG dismissed the action against ORG , who had bought their apartment on DATE ; on DATE it dismissed the action against ORG and GPE and on DATE it dismissed the action against GPE , who had bought his apartment on DATE .", "On DATE ORG and ORG , acting on an application by the Procurator General ( recurs PERSON anulare ) , quashed the final decision of DATE and sent the case back to the firstinstance court . According to the information available to the ORG , the proceedings are still pending with the domestic courts .", "On DATE ORG allowed a similar application by the Procurator General and set aside the DATE decision , thereby allowing the former owner ’s action against GPE", "A similar action by the Procurator General , lodged against the CARDINAL DATE decision mentioned above , was allowed by ORG on DATE . The case was sent back to ORG for re - examination of the appeal . The proceedings are still pending with that court .", "As to the applicant , eviction proceedings lodged by the former owner against him are currently pending with the domestic courts .", "Under NORP law , an action for recovery of possession is one of the principal remedies for the protection of a right of property . Such action is not governed by statute per se but has emerged from case - law . An action for recovery of possession can be defined as the bringing of proceedings to enforce a right in rem in which a dispossessed owner claims back his or her property from the person currently in possession of it . When both the plaintiff and the defendant have a title deed , the court must compare the CARDINAL deeds and decide which one is preferred . The main outcome of such an action , if successful , is the acknowledgment by the court of the claimant ’s title to the property , with retrospective effect , thus obliging the defendant to return the property . If physical restitution is no longer possible , that obligation is replaced by an obligation to pay compensation on the basis of an equivalent sum ( see PERSON and Others v. GPE , no . MONEY , § CARDINAL , ORG CARDINALVII ) .", "Articles CARDINAL of the Civil Code institute the seller ’s responsibility for eviction . They provide for the evicted buyer to claim reimbursement of the price and also the payment of costs and damages , regardless of the seller ’s good or bad faith . The buyer can either join the seller to the proceedings instituted against him by the third party or lodge a new action against the seller after having been evicted . In the latter case , if the seller proves that he could have won the case against the third party had he been joined to the proceedings , he will be exempted from compensating the buyer ( Article CARDINAL of LAW ) .", "A bona fide buyer continues to enjoy the benefits of the property until he is no longer considered bona fide , that is at the latest when the action for eviction is lodged against him , at which time enjoyment of the property reverts to the rightful owner . However , the buyer may still claim compensation for his loss from the seller .", "At the date of the facts of the present case , LAW no . CARDINAL/CARDINAL on the rules governing immovable property wrongfully seized by the ORG DATE and DATE , as amended by ORG Emergency Ordinance no . CARDINAL of DATE ( “ PERSON no . CARDINAL ” ) , prescribed that an action for recovery of the purchase price , indexed to take account of inflation , brought against the ORG by a buyer whose contract had been declared null and void , was not subject to court fees . It also provided that the indexed price was to be paid by ORG from a special fund .", "At the ORG ’s request , the Government submitted case - law on the different actions for compensation when property is lost in conditions similar to those of the case at hand .", "Of the CARDINAL relevant decisions adopted DATE by courts all over the country , CARDINAL concerned actions lodged against the ORG authorities by persons who lost their property in actions for recovery of possession . The courts applied LAW and awarded them the indexed purchase price and , in most of the cases , damages and the costs reasonably incurred for the upkeep of the house . Most of the courts considered that PERSON no . MONEY was not applicable to actions for recovery of possession when the sale contract was not declared null and void in such proceedings .", "When such contracts are cancelled , however , the decisions submitted to the ORG indicate that the courts consistently apply PERSON no . CARDINAL/CARDINAL and award the buyer the indexed purchase price .", "In a decision no . CARDINAL of DATE ORG found in favour of the buyer in an action for recovery of possession lodged by the former owner of a nationalised apartment against the person who in good faith had bought the apartment from the ORG in DATE . The court decided that the restitution of the apartment to the former owner was no longer possible and , based on the ORG ’s case - law on LAW CARDINAL ( in particular : PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , PERSON CARDINAL ; ORG v. GPE , no . CARDINAL , DATE and ORG v. GPE , no . CARDINAL , ORG CARDINALXII ( extracts ) ) , it compelled the ORG to pay the market value of the apartment in compensation to the former owner . In the court’the monetary award was the only solution to the action for recovery of possession .", "In a similar decision of CARDINAL DATE ORG and ORG found in favour of the buyer in an action for recovery of possession lodged by the former owner . ORG took account of the fact that the buyer ’s title had been confirmed by the courts in an action in nullity of the sale contract lodged against him by the former owner whereas the former owner ’s title had not been upheld by a court . It further considered that dispossessing the buyer regardless of the circumstances , in order to surrender the property to the former owner , would create disproportionate new wrongs in the attempt to attenuate old injuries . It also considered , in a general statement , that the reimbursement of the indexed purchase price under PERSON no . CARDINAL/CARDINAL could not compensate the buyer as it did not reflect the property ’s market value .", "NORP In a decision no . CARDINAL of DATE ORG declared LAW no . CARDINAL/CARDINAL unconstitutional in so far as it breached the buyer ’s property title . Under the provision concerned , persons whose actions based on LAW had been dismissed before the entry into force of Law no . CARDINAL/CARDINAL could use this PERSON in order once again to seek the restitution of their property . ORG considered that persons whose title to property had been confirmed by a court decision could not be compelled to surrender that property where there was no serious justification for such a measure , based on public order , under LAW ." ]

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[ "The applicant is a NORP national , born in DATE , and resides in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .", "On DATE , ORG ( ORG ) of ORG pronounced the divorce between the applicant and his wife , PERSON The care and custody ( voogdij ) of their QUANTITY children was awarded to PERSON The applicant was appointed as co - guardian ( toeziend voogd ) . It was further decided that the applicant was to pay ORG . CARDINAL per month for child support .", "The determination of an access arrangement for the applicant formed the subject of separate subsequent proceedings . On DATE , in proceedings on appeal against an initial decision , ORG ( Gerechtshof ) of ‘ sHertogenbosch decided to adjourn its proceedings pending the submission of the results of an examination of the children and their parents to be carried out by ORG ( Pedagogisch ORG ; “ PAR ” ) .", "In its decision of DATE , ORG noted PERSON refusal to co - operate with the investigation by the ORG as well as her refusal to co - operate in exploring possibilities to start an access arrangement . It rejected as insufficiently weighty the arguments submitted by PERSON to the effect that the applicant should be denied access to his children . It held that , moreover , the mother ’s uncooperative attitude as to the examination by the ORG had resulted in a situation that it could not be established whether the applicant ’s access to both children would possibly be contrary to the children ’s interests . ORG determined an access arrangement according to which the applicant had access to the children DATE per fortnight as CARDINAL of the children ’s holidays .", "As PERSON refused to comply with this access arrangement , the applicant took summary proceedings ( kort geding ) against her before ORG of GPE seeking a judicial compliance order with a penalty of ORG . CARDINAL for each time PERSON would fail to comply .", "In its judgment of DATE , following proceedings in which PERSON had been declared in default of appearance , ORG ordered PERSON to comply with the access arrangement determined by ORG on DATE . It further determined a penalty of ORG . CARDINAL for DATE or part thereof that PERSON would not comply . This penalty was limited to a maximum of ORG . CARDINAL . ORG finally declared its judgment to be immediately enforceable ( bij voorraad uitvoerbaar ) .", "The applicant filed an appeal with ORG of ‘ s - Hertogenbosch in respect of the determination of the penalty and the maximum limitation thereof . He requested ORG to fix the penalty at ORG . CARDINAL for each time of non - compliance and to allow him to off set the penalties incurred by PERSON with the child support that he had to pay .", "In its judgment of DATE , ORG accepted the applicant ’s argument that , given the fact that PERSON had as yet failed to comply with the judgment of DATE , the penalty determined by ORG was an insufficient means of pressure . Consequently , it decided to fix the penalty for non - compliance at ORG . CARDINAL for DATE or part thereof .", "As to the maximum limitation of the penalty , ORG considered that , as PERSON had failed to appear before both ORG and ORG and thus did not find it even necessary to submit facts or circumstances in justification of her position and , therefore , rendered a judicial examination thereof impossible , PERSON behaviour should not be sanctioned . On this basis it decided not to determine a maximum limit for the penalty .", "ORG did , however , reject the applicant ’s request to be allowed to off set the penalty for non - compliance with the child support he had to pay . It held that PERSON , in her capacity as the children ’s guardian , received the child support which by its very nature was fully intended for the children . It noted that the applicant had never disputed the children ’s need of this support . The penalties , however , were due by PERSON in her personal capacity . The applicant and PERSON could , therefore , not be regarded as reciprocal debtors within the meaning of Article CARDINAL:CARDINAL of LAW ( PERSON ) . It further held that , also on the basis of LAW - which deals with CARDINAL situations in which a debtor is not competent to off set - in conjunction with Article LAW under ( e ) of LAW ( Wetboek van Burgerlijke Rechtsvordering ) , according to which payments for maintenance are exempted from seizure , compensation was not possible in this case .", "Consequently , ORG quashed the judgment of DATE in respect of the determination of the penalty and the maximum limitation thereof , fixed the penalty to ORG . CARDINAL for DATE or part thereof of non - compliance without setting a maximum limit and declared its judgment to be immediately enforceable .", "The applicant filed an appeal in cassation with ORG ( PERSON ) , complaining that ORG had incorrectly held that to off set the penalties with the child support was not possible . He submitted that PERSON , in refusing to comply with the access arrangement , did not only act in her personal capacity , but also in her capacity as the children ’s guardian .", "In its judgment of DATE , ORG rejected the appeal in cassation . It held that , by judgment , PERSON had been ordered , in her personal capacity , to comply with the access arrangement and that therefore , in case of non - compliance , she forfeited , also in her personal capacity , the penalty determined ." ]

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[ "The applicant was born in DATE and lives in Oberwart / GPE . He is an auditor and tax consultant ( PERSON ) .", "In DATE , ORG ( PERSON ) , in the course of investigations into a large scale fraud relating to the “ WEB / IMMAG ” group , instituted criminal proceedings against CARDINAL persons , requesting them to submit in writing their comments as suspects .", "On DATE the applicant , who in his professional capacity assisted the “ WEB / IMMAG ” group , wrote a letter to ORG . Therein he asked that his income tax declarations for DATE be corrected , so that the losses declared be cancelled , in particular ORG CARDINAL,CARDINAL for DATE ; ORG CARDINAL for DATE and ORG CARDINAL for DATE . He further asked that following a re - calculation of his income , new tax assessment orders be issued .", "On DATE and DATE ORG informed the applicant that he was suspected of tax evasion in that he had acted as a sham holder of shares in CARDINAL cases concerning DATE . It further invited him to submit his comments in writing .", "After the applicant 's request of CARDINAL DATE for an extension of the time - limit had been granted , he submitted his comments on DATE .", "Until DATE ORG for ORG ) examined the “ WEB / IMMAG ” group .", "On DATE ORG requested ORG to transmit the applicant 's tax file in order to determine the amount of evaded taxes .", "On DATE ORG replied to ORG that the file could not be transferred because of pending investigations .", "Following another request for transfer of the file by ORG on DATE , ORG , on DATE , replied that the file had been sent to ORG for ORG - scale Companies and could only be transmitted after these investigations had been completed .", "Upon ORG request of DATE , ORG for ORG - scale Companies transferred the applicant 's file on DATE .", "On DATE ORG informed ORG of the result of its investigations and requested that the applicant be prosecuted for tax evasion . It noted that the losses declared by the applicant for DATE ( ORG CARDINAL for DATE , ORG CARDINAL for DATE and ORG CARDINAL for DATE ) resulted in tax evasion of ORG CARDINAL for DATE , ORG CARDINAL for DATE and ORG CARDINAL for DATE . Thus , the total amount of evaded taxes was ORG CARDINAL .", "On DATE , when interrogated by ORG , the applicant stated that he wished to submit his comments in writing directly to ORG by DATE . On DATE and on DATE , he requested extensions of the time - limit as he had fallen ill . On DATE he submitted his comments and observations in writing .", "On DATE ORG preferred a bill of indictment against the applicant charging him with tax evasion of ORG CARDINAL in that he had made false statements of losses in his income tax forms DATE ( ATS CARDINAL for DATE ; ORG CARDINAL for DATE and ORG CARDINAL for DATE ) . The bill of indictment comprised CARDINAL pages .", "On DATE , the presiding judge of the chamber dealing with the applicant 's case informed the President of ORG that he considered himself biased since he had been the deputy investigating judge in proceedings against other accused relating to the same case . On DATE , the President decided nevertheless that the presiding judge should not withdraw from the case .", "On DATE the applicant requested that the trial scheduled for CARDINAL DATE be adjourned . This request was granted by the court .", "On DATE ORG convicted the applicant of tax evasion , pursuant to LAW § CARDINAL of the Code of Tax Offences ( Finanzstrafgesetz ) . As regards the applicant 's argument that he could not be punished because his letter of CARDINAL DATE constituted “ self - denunciation ” of a tax offence resulting in exemption from punishment , the court observed that it had not been made in time because the tax authorities had already discovered the offence , and it had not been sufficiently detailed for the purposes of a “ self - denunciation ” .", "On DATE the written version of the judgment , comprising CARDINAL pages , was served on the applicant 's counsel . Thereupon , on DATE , the applicant filed a plea of nullity ( GPE ) and requested that the transcripts of the trial be corrected . On DATE , after having obtained various statements , ORG corrected the transcripts .", "On DATE the Procurator General ( Generalprokurator ) submitted his observations on the applicant 's plea of nullity .", "On DATE ORG scheduled the hearing on the plea of nullity for DATE . On DATE ORG dismissed the applicant 's plea of nullity . This decision was pronounced orally . On DATE the written version of the judgment , consisting of CARDINAL pages , was served on the applicant 's counsel ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in PERSON . She owns a plot of land with a house where she lives with her son and his family . The application relates to plot no . DATE ( at present GPE ) .", "In DATE a general land development plan for the municipality of PERSON was adopted . The applicant 's property , which was at that time owned by her relatives , was designated for public purposes .", "On DATE , acting under LAW of DATE on Rules and Procedures of Expropriation of Real Estate ( ustawa o zasadach i trybie wywłaszczania nieruchomości ) , the Governor of GPE ) decided to enter a notice about the institution of expropriation proceedings in respect of the property in the land and mortgage register kept by the local ORG .", "An official expropriation decision was never issued . However , experts appointed by the Governor subsequently conducted numerous visits to estimate the property 's value with the purpose of assessing the compensation payable for the future expropriation .", "The applicant submitted that she had been informed several times by ORG that in view of the expropriation an earlier purchase of her property by the municipality was possible and that she and her family would be entitled to obtain new apartments and compensation .", "The applicant carried out minor necessary repairs , but as the house had been built in DATE , it required general renovation . She submitted that in DATE she had been told by a local official that she would not receive permission for a general renovation of the house because of the expropriation notice in the land register . The Government contest this submission .", "In DATE and DATE the Public Roads Maintenance District Authority ( Rejon Eksploatacji Dróg Publicznych ) , a Stateowned enterprise , carried out some demolition works on the property concerned . The applicant was neither requested to give her assent to them nor informed of them beforehand . The works involved cutting down trees and shrubs in her garden and extensive excavations . As a result of these works the applicant 's garden was destroyed , her garage collapsed , apparently in DATE , and water accumulating in ditches penetrated into the cellar . The works were suddenly interrupted without reason . The applicant was paid compensation for plants and fruit which had been destroyed .", "Upon the applicant 's protests she had been repeatedly reassured by the authorities that the land would soon be expropriated and she would receive appropriate compensation . At the same time , extensive construction works had continued on the neighbouring properties , which had already been expropriated .", "In DATE the applicant informed ORG that as a result of the works water had been gathering on the land and endangering the stability of the house . In DATE ORG informed the applicant that her land would be bought out after the relevant estimates had been drawn up . On an unspecified DATE in DATE the applicant obtained compensation for the fact that following the works she could not use her land as a garden for DATE .", "During DATE the applicant repeatedly applied to the ORG demanding that her land be restored to its previous condition or that it be purchased and new accommodation granted to her , but to no avail .", "On DATE she complained to the GPE Governor . She pointed out that her plot of land had been designated for expropriation , but that no construction works in connection with the viaduct had started and that she had not been served with any expropriation decision . She reiterated that the property had sustained serious damage and the authorities had refused her requests for it to be redressed until the actual expropriation had been carried out .", "By a decision of CARDINAL DATE the ORG declared that the applicant had acquired ownership of plot no . DATE by acquisitive prescription as of DATE . On CARDINAL DATE a land and mortgage entry for that plot was established in the applicant 's name . A notice about the expropriation proceedings was put in the relevant part of the entry .", "In DATE the applicant divided plot no . DATE into CARDINAL smaller plots ( nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) . Subsequently , on DATE the applicant sold plot no . CARDINAL/CARDINAL ( at present no . CARDINAL ) to a third party .", "On DATE the applicant requested ORG to take the relevant steps in order to have the expropriation warning concerning plot no . CARDINAL/CARDINAL deleted from the land register , submitting that the warning had become groundless . On DATE ORG lodged the necessary application with the land registry , indicating that the expropriation plans had been abandoned on an unspecified date . On DATE ORG complied with the request .", "On an unspecified later date the plot was divided into CARDINAL smaller plots and as a result , a third plot , no . CARDINAL , was created . On DATE the applicant sold it .", "On DATE the applicant asked the Krosno Governor to clarify the situation of her property and for compensation in connection with the expropriation . The matter was transferred to the PERSON Mayor . On CARDINAL DATE ORG informed her that the new local development plan was being drafted . The plan would determine in detail the outline of communication routes in the city and as a result also the advisability of buying out her real estate . The ORG reminded her that until expropriation it was the owner who was obliged to maintain his house appropriately . Bearing in mind , however , the restrictions on general renovations the ORG would consider the possibility of providing the applicant with another flat as a settlement with her .", "On DATE the applicant again applied to ORG for compensation . She mentioned on that occasion that she had obtained compensation , in an unspecified amount , for DATE when she could not use the land as a result of damage caused by works carried out in DATE .", "By a letter of CARDINAL DATE the applicant was informed by the local authorities that they did not envisage using her plot of land for public purposes .", "On DATE the applicant instituted civil proceedings against ORG represented by ORG ( FAC ) in respect of non - compensated pecuniary damage she had sustained as a result of expropriation proceedings having been instituted in respect of plot no . CARDINAL/CARDINAL . On DATE the applicant was exempted from court fees and a legal - aid lawyer was later appointed to represent her .", "On DATE the Mayor of GPE ( Starosta Powiatowy ) replied to a summons sent by the court to the Chief of ORG FAC ) and explained that as a result of the reform of the local administration the appointment of heads of district offices had ceased as of DATE . Until that date the heads of district offices had been competent to represent ORG in matters concerning the management of its properties .", "On DATE a hearing was held . The defendant failed to attend it . In connection with the Mayor of GPE letter the applicant was requested to determine the legal entity against which she directed her statement of claim .", "NORP In reply , on DATE the applicant 's lawyer indicated the Podkarpackie Governor as representing the defendant ORG . He also specified the applicant 's claim , indicating that she demanded compensation for the physical damage to her house resulting from the planned expropriation which had been caused by the fact that she had had to abstain from carrying out major renovation works and by the changes in the land configuration caused by the works carried out in DATE .", "On DATE the Podkarpackie Governor replied to the statement of claim , arguing that he could not act as a defendant in the proceedings . According to LAW DATE , it was the Head of TIME ( starosta powiatowy ) who should represent ORG in matters relating to expropriations , given that expropriations belonged to the so - called “ commissioned tasks ” of the Government administration ( zadanie z zakresu administracji rządowej ) . Until DATE ORG had been represented in such cases by heads of district offices . From the statement of claim it could be assumed that the expropriation had to be effected upon the PERSON community 's motion . The plaintiff had , however , failed to submit any documents to confirm the statements included in her action . It should therefore be rejected in respect of the GPE Governor .", "At a hearing held on DATE the applicant 's lawyer maintained his opinion that the action should be pursued against the Podkarpackie Governor as he was the successor of the Rzeszów Governor who had issued the first decision in the applicant 's case in DATE .", "On DATE an expert opinion was submitted , assessing the physical damage to the applicant 's house and garage at MONEY ( PLN ) and the value of construction materials which the applicant had bought for the purposes of general renovation but had not used at PLN CARDINAL . On an unspecified later date the applicant limited her claim to the damage suffered as a result of the DATE construction works , the deterioration of the buildings and the waste of building materials .", "On DATE ORG awarded the applicant compensation amounting to CARDINAL ORG . That amount covered both the physical damage to the house and the cost of the building materials referred to above . The court found that there had been an obvious causal link between the expropriation proceedings instituted in the past in respect of the applicant 's property on the one hand , and , on the other , the works carried out in DATE by a ORG - owned enterprise and the ensuing damage to the applicant 's house . It also noted that because of the pending expropriation proceedings she could not use the building materials she had purchased for the general renovation . It therefore found the compensation claim against the ORG Governor , acting as the legal successor of the former FAC , justified .", "The Governor appealed , arguing that he did not have standing in the proceedings , given that following the CARDINAL major administrative reforms , in DATE and DATE , it was the Mayor of LOC who was competent to represent ORG in such matters .", "By a judgment of CARDINAL DATE ORG allowed the appeal under the applicable legislation and dismissed the applicant 's claims . The court first noted that under the applicable land - planning legislation the mere fact that the applicant 's property had been designated for future expropriation and that certain restrictions on the use of property had resulted from it did not entitle her to any compensation as the applicable laws clearly excluded such entitlements . Nonetheless , the applicant had in the past received compensation , in an unspecified amount , for certain damage caused to her property after the expropriation proceedings had been instituted . As to the claim concerning the value of the building materials , the court was of the view that it had not been shown that any official decision or information preventing her from renovating the house had been given or communicated to the applicant .", "As for the physical damage to the house and garage , the court stated that the applicant had not established the responsibility of the defendant ORG for it . According to the court , it was essential to establish which administrative entity was originally to benefit from the property 's expropriation and which public authority had ordered the works carried out on the applicant 's plot . It fell to the applicant to establish the legal and factual elements of the case decisive for the determination whether it was ORG or the local municipality which should have been sued in the case . As the applicant had failed to show any legal basis for the responsibility of ORG , the claim should be dismissed .", "The applicant did not lodge a cassation appeal as her legalaid lawyer refused to prepare and lodge it with ORG .", "On DATE ORG ( PERSON ) enacted LAW DATE ( ustawa o planowaniu przestrzennym ) . It was subsequently replaced by LAW of DATE ( ustawa o planowaniu przestrzennym ) .", "On DATE a new LAW ( ustawa o zagospodarowaniu przestrzennym ) was enacted . It entered into force on DATE .", "On DATE ORG passed a law amending LAW DATE .", "On DATE a new LAW ( ustawa o planowaniu i zagospodarowaniu przestrzennym ) was enacted which repealed LAW .", "DATE until DATE the criteria and procedure applicable with regard to expropriation of individual properties were set out in LAW ( ustawa o zasadach i trybie wywłaszczania nieruchomości ) .", "From DATE to CARDINAL DATE the rules governing the administration of land held by ORG and municipalities were laid down in ORG DATE ( ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości - the “ DATE LAW ” ) .", "Article CARDINAL of this Act provided that properties could be expropriated only for the benefit of the ORG or a municipality .", "Pursuant to LAW , a decision on expropriation had to include in particular :", "“ ( CARDINAL ) an indication of the property to be expropriated , ...", "( CARDINAL ) an indication of the party upon whose initiative the property is being expropriated ,", "( CARDINAL ) an assessment of the amount of compensation ,", "( CARDINAL ) identification of the persons ( name , surname and address ) entitled to compensation ,", "( CARDINAL ) detailed factual and legal grounds ,", "( CARDINAL ) instructions on appeal procedures . ”", "Under LAW , expropriation was to be carried out against payment of compensation . The payment was to be made within DATE from the date on which a decision to expropriate had become final .", "On DATE the DATE LAW was repealed and LAW of DATE ( LOC o gospodarce nieruchomościami – “ the DATE LAW ” ) was adopted , containing similar provisions on expropriation and compensation .", "Neither under DATE nor under DATE ORG ( see paragraph CARDINAL above ) were owners of properties to be expropriated in the future entitled to any form of compensation for damage resulting from restrictions on the use of their property and the reduction in its value originating in expropriations to be carried out at a future undetermined point in time .", "Section CARDINAL of LAW enacted in DATE created for local authorities a number of obligations towards owners whose properties were to be expropriated at an undetermined future date under land development plans adopted by competent municipal authorities . The municipalities were obliged either to buy plots designated for future expropriation under local land development plans , or to replace those plots by other plots within DATE from the date on which a relevant request was submitted by the owner , or to award compensation for damage caused by the fact that the plot was designated for future expropriation .", "However , this obligation and the corresponding claims of the owners applied only to plans adopted after the LAW had entered into force , that is to say , to plans adopted by local municipalities after DATE .", "Pursuant to the DATE Act , plans adopted before the date of its entry into force were to expire on DATE .", "In DATE an amendment to LAW was adopted under which the validity of such plans was extended for DATE , namely until DATE .", "On DATE ORG passed a law amending LAW DATE which extended until DATE the validity of the land development plans adopted before DATE .", "Under LAW of LAW ( see paragraph CARDINAL above ) , all local plans adopted before DATE remained valid , but not beyond DATE .", "Compensation entitlements for owners , provided for by LAW ( see paragraph CARDINAL above ) , were in essence maintained by the CARDINAL Act . Pursuant to section QUANTITY , when , following adoption of a new local land development plan , the use of property in the manner provided for by a previous plan has become impossible or has been restricted , it is open to the owner to claim compensation from the municipality , or to request the municipality to buy the plot . Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts .", "NORP Before DATE ownership of publicly - owned property was essentially assigned to ORG .", "ORG ( LAW of DATE ( PERSON wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “ the DATE LAW ) , which came into force on DATE , and other related statutes enacted at that time , re - established local government and municipalities and transferred to them powers that had previously been exercised solely by the local ORG administration . Pursuant to section QUANTITY ) , ownership of land which had previously been held by ORG and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality .", "Section CARDINAL § CARDINAL ( CARDINAL ) of the LAW provides , as far as relevant :", "“ ORG takes over :", "CARDINAL ) obligations and receivables of local bodies of state administration ( ... ) resulting from final and binding court rulings and administrative decisions delivered before CARDINAL DATE ( ... ) . ”", "In DATE ORG held that in cases where it was obvious from a statement of claim which organisational entity should represent ORG in the proceedings , the court should not reject it even if a plaintiff had wrongly indicated the entity ; it was obliged to serve the statement of claim on the appropriate entity ( decision of CARDINAL DATE , I ORG CARDINAL/CARDINAL . )", "Section CARDINAL § CARDINAL ( CARDINAL ) of LAW , introducing the first stage of the reform of local administration ( see paragraph CARDINAL above ) raised doubts as to which legal entity was liable for damages in connection with an unlawful administrative decision issued by the ORG before the administrative reform . The problem was subject to divergent judicial interpretation .", "On DATE ORG delivered a judgment ( II CKN CARDINAL/CARDINAL ) in which it concluded that the municipality should be sued for compensation for damage caused by an administrative decision delivered before DATE .", "On DATE ORG held that when a plaintiff erred in the statement of claim by indicating the wrong organisational entity of ORG , that shortcoming should be regarded as relating to the representation of the defendant and rectified accordingly ; the court was obliged to ensure of its own motion that the appropriate organisational entity was summoned to act in the proceedings ( ORG , CARDINAL/CARDINAL ) .", "On DATE a panel of CARDINAL judges of ORG , adopted a resolution ( no . III CZP CARDINAL/CARDINAL ) , finding that the municipality DATE and not ORG – had the legal capacity to be sued for damages in connection with an administrative decision issued before CARDINAL DATE , provided that the decision had been annulled or declared unlawful after DATE .", "In a resolution of DATE ( no . III CZP CARDINAL/CARDINAL ) , adopted by a panel of CARDINAL judges , ORG concluded that ORG had the capacity to be sued for damages arising from an administrative decision delivered before CARDINAL DATE , even if the decision had been annulled or declared null and void after that date . The resolution was adopted following the referral of a legal question to ORG by another court of appeal which had a similar case before it .", "ORG maintained this position in several subsequent judgments ." ]

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[ "The applicant was born in DATE and lives in GPE .", "NORP In DATE the ORG oil refinery , a joint stock company with its main office in ORG ( “ Plama ” or “ the company ” ) , was declared insolvent . On DATE the applicant was appointed its trustee in insolvency .", "On DATE PERSON , a former trustee of PERSON , lodged a statement of claim on behalf of the company in ORG .", "On DATE ORG advised the applicant to specify whether he would confirm this action . The applicant decided to retain a lawyer , PERSON On DATE he obtained the authorisation of the insolvency court to pay Mr ORG a fee of MONEY ( ORG ) , the equivalent of MONEY ( ORG ) , for PERSON ’s legal representation in the proceedings .", "On DATE Mr Y.N. attended a court hearing and requested in writing that the proceedings be terminated , since the action had been brought by PERSON , who did not represent PERSON at the time . Upon request by the defendant , the case was transferred to ORG where the proceedings were subsequently terminated .", "Meanwhile , the creditors of ORG agreed upon a plan for the company ’s recovery . On DATE the plan was approved by the insolvency court and the applicant ’s functions as trustee in insolvency were terminated . However , he retained some supervisory functions .", "On DATE the applicant signed CARDINAL orders for the transfer of ORG CARDINAL PERSON bank account .", "Later in DATE an investigation was opened in relation to the applicant ’s actions . On DATE the prosecution filed an indictment against him . He was indicted with exceeding his powers ( LAW , see paragraphs CARDINAL and CARDINAL below ) in that , acting as an official with whom powers were vested by virtue of law ( длъжностно лице ) , he had retained a lawyer to represent the company before obtaining the insolvency court ’s authorisation to pay the fee agreed upon , and that on DATE he had ordered that the sum of BGN CARDINAL be paid to PERSON GPE , even though by that time he had ceased to act as a trustee in insolvency of the company and was no longer authorised to act for it .", "On an unspecified date PERSON was constituted as a civil party in the criminal proceedings against the applicant and brought an action for damages in the amount of BGN CARDINAL,CARDINAL .", "On DATE ORG convicted the applicant as charged , sentenced him to CARDINAL years’ imprisonment and allowed in full PERSON ’s civil claim .", "The applicant lodged an appeal against the judgment of ORG .", "On DATE the verdict was upheld by ORG , which dismissed an objection by the applicant that he had not had an official capacity ( длъжностно лице ) . It held that it was sufficient that as a trustee he had assumed managerial functions and responsibility for the company ’s assets .", "On the first charge against the applicant , that he had exceeded his powers in retaining a lawyer to represent the company , ORG found that it had certainly not been necessary to retain a lawyer , provided that the only thing the latter had done had been to request the termination of the proceedings . Thus , the applicant had indebted the company with the lawyer ’s fee whereas it had not received any gain in return . The applicant had not therefore acted in accordance with the rights and powers vested in him as a trustee but with the aim of enriching Mr GPE and inflicting a financial loss on PERSON .", "Similarly , ORG found that the applicant had exceeded his powers in ordering the payment of PERSON fees .", "The applicant appealed in cassation . He argued that he had not acted as an official and that , therefore , he could not have committed an offence under LAW . He argued , furthermore , that he had acted in accordance with the law and had not unnecessarily indebted PERSON .", "ORG delivered a judgment on DATE . It confirmed the lower courts’ conclusion that the applicant had had an official capacity . However , it held that in retaining a lawyer and ordering the payment of the legal fees he had not exceeded his powers as a trustee . Retaining a lawyer had been within his powers and , as he had continued to exercise supervisory functions after the adoption of the plan for PERSON ’s recovery , he had had the power to order the payment . Furthermore , LAW concerned offences against the proper exercise of ORG power , whereas it had been alleged that the applicant had acted against the interests of a private company . It followed that he could not have committed an offence under LAW . Therefore , on the charges of having exceeded his powers , ORG acquitted the applicant .", "Nevertheless , ORG found that as the applicant had deliberately entered into a contract which was disadvantageous to the company he was guilty of an offence under LAW § CARDINAL of LAW ( see paragraph CARDINAL below ) . In the domestic court ’s view , returning such an alternative verdict was procedurally lawful , per argumentum a contrario , under LAW , since it was based on the circumstances underlying the initial charges and the applicant had defended himself in respect of those circumstances throughout the proceedings . Only the legal characterisation of the facts had changed .", "Accordingly , ORG convicted the applicant of deliberately entering into a disadvantageous contract and thus inflicting substantial damage on PERSON , and sentenced him to a suspended term of DATE imprisonment . It affirmed the lower courts’ judgments in the part allowing PERSON ’s civil claim . That judgment was final .", "Article CARDINAL § CARDINAL of LAW , as in force at the relevant time , provided that an official in whom certain powers were vested by virtue of law ( длъжностно лице ) , who breached or failed to fulfil his duties , or exceeded his power , with the aim of obtaining a benefit for himself or CARDINAL party , or of causing damage to others , was to be punished by PERCENT five years’ imprisonment or correctional labour . Article CARDINAL § CARDINAL envisaged imprisonment of DATE where considerable material damage had resulted from these acts or the offender had occupied a senior managerial post .", "Under LAW of LAW , an official in whom certain powers are vested by virtue of law ( длъжностно лице ) , who deliberately enters into a disadvantageous contract which can result in substantial damage to the company or organisation he represents , is to be punished by imprisonment of DATE .", "In accordance with the structure of LAW of DATE , Article CARDINAL was at the relevant time classified as an offence against the functioning of ORG bodies and public organisations , while LAW was considered an offence against the economy .", "Article CARDINAL § CARDINAL of LAW , in force until DATE , required that the prosecution file a new indictment in cases where , at the trial stage of the proceedings , it transpired that there were grounds to substantially amend the factual basis of the charges , or to bring charges which required a more severe punishment . Under LAW , in cases where a new indictment was necessary and the parties had so requested , the domestic court had to adjourn the hearing for further argument .", "Identical provisions are contained in LAW , in force from DATE ." ]

[ "6" ]

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

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

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[ "The applicant is a NORP national , born in DATE . She is represented before the ORG by PERSON and PERSON , lawyers practising in GPE . The Government are represented by Mr PERSON , their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "Since DATE the applicant is a member of ORG ( hereinafter referred to as the “ Church ” ) , which is part of GPE .", "From DATE the applicant worked as a judge at ORG of FAC of GPE .", "In DATE she participated in the election for the post of a mayor of ORG . The applicant submits that one of her opponents in the election campaign , who was eventually elected to the post of the mayor , frequently criticised her in the media as a “ cultist striving for power ” and referred to the ORG as a “ totalitarian sect ” .", "On DATE the newly elected mayor sent a letter to the President of ORG , requesting the applicant 's dismissal from the judiciary on the ground that she was a “ cultist ” . A number of private persons also applied to the court , complaining about the applicant 's performance of her judicial functions .", "On DATE ORG , a local association of judges , considered the question whether the applicant had misused her authority as a judge . The council instituted disciplinary proceedings against her , applying to ORG of ORG to decide the question of her dismissal from the judiciary .", "From DATE ORG held hearings in the case . The panel consisted of CARDINAL judges . Representatives of the council and a local authority were the applicant 's opposing parties vis - à - vis the applicant . The panel heard the applicant and several witnesses , including officials of ORG and ORG , who testified against her . The panel scrutinised written statements of CARDINAL persons , including many private persons complaining about the way in which the applicant had handled their cases . The applicant asserts that she was refused to call several witnesses on her behalf .", "On DATE ORG dismissed the applicant from the office and removed her “ third qualification grade ” of a judge on the ground that she had “ damaged her reputation as a judge and impaired the authority of the judiciary ” within the meaning of LAW . The panel also found that she had breached LAW , the Freedom of Conscience and Religious Associations Act and LAW of a Judge . The panel ruled that she had misused her office to “ pursue religious activities in the interests of the ORG ” inter alia by recruiting as ORG members several officials of ORG and certain third persons , including parties to proceedings under her examination . It was also found that the applicant had unsuccessfully attempted to enrol a number of other persons , that she had prayed publicly during court hearings , and that she had promised certain parties to proceedings a favourable outcome of their cases if they joined the ORG . ORG noted that that had resulted in numerous challenges against the applicant , and that a number of cases had been delayed as a result .", "The panel further observed that the applicant was free to choose her religion and that the ORG was a legitimate organisation duly registered by the local authorities . The panel mentioned nonetheless that the ORG was a “ sect bearing with the label of a NORP church , [ but that ] it [ was ] not such in fact ” . ORG further confirmed that the applicant had been entitled to run in the election of the mayor ; it nonetheless criticised the applicant 's campaign as promoting her religion rather than emphasising “ current difficulties ” of the society and the economy of the ORG .", "The applicant appealed to ORG of GPE , claiming in particular that she had never misused her office in the interest of the ORG or promoted her religion by using her authority as a judge .", "On DATE ORG , consisting of CARDINAL judges , examined the appeal in the presence of the applicant and a representative of ORG of ORG , who requested that the appeal be dismissed . The applicant submits that her representative was not permitted to attend the panel hearing .", "During the hearing the applicant did not deny the fact that she had several times “ discussed ” the morality of certain parties to proceedings concerning various family rights . The panel rejected the applicant 's appeal , finding that the case had been decided properly .", "The applicant appealed to ORG .", "The applicant submits that on DATE ORG examined the appeal in the presence of a representative of ORG and a prosecutor , who requested the court to dismiss the applicant 's appeal . The applicant was not present . ORG rejected her appeal by reference to explanations by the representative of the judicial council and the prosecutor , and the prior findings of the panels . The court ruled that the applicant had been involved in propaganda of the ORG and religious intimidation of parties to proceedings under her examination . ORG decided that the applicant therefore gave rise to doubts as to impartiality and independence of the court .", "The applicant states that the hearing before ORG was initially set to take place on DATE . As no notification of a change of that date was sent to her , she arrived on CARDINAL DATE , but found that the case had in fact been heard on DATE .", "The Government state that the hearing at ORG was scheduled for and took place on DATE", "The date of ORG hearing in ORG written judgment is indicated as DATE .", "The Government submit that the date of ORG hearing as being DATE was put by mistake in the judgment , which was eventually corrected .", "LAW and LAW provide that all judges have equal status .", "Pursuant to LAW , judges can be granted “ qualification grades ” on the basis of their judicial experience or other professional accomplishments . The grant of a particular “ qualification grade ” does not affect the status of the judge vis - à - vis other judges .", "There are CARDINAL “ qualification grades ” , which are granted or removed on the basis of decisions of judiciary qualification panels established under LAW , LAW and LAW ( also see below ) .", "LAW provides for special supplementary payments to the salary or pension of the judge on the basis of his “ qualification grade ” .", "LAW separates churches from the ORG .", "Articles CARDINAL and CARDINAL of the Freedom of Conscience and Religious Associations Act prohibit ORG officials from using their official powers to promote religion .", "Pursuant to LAW of a Judge , the work of a judge in administering justice should prevail over his other activities .", "LAW provides that a judge should avoid engaging in any activities that can impair the authority of the judiciary , damage his reputation as a judge or call into question his impartiality . Paragraph CARDINAL of the above provision states that a judge can not occupy a position of an elected representative , belong to political parties or movements , be involved in business activities , receive salary in connection with his other activities , let alone academic , scientific and creative work .", "LAW ( CARDINAL ) of the above LAW provides for the dismissal of a judge who has acted in a way “ damaging his reputation as a judge and impairing the authority of the judiciary ” .", "Under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of ORG , the questions of dismissal of a judge and removal of his “ qualification grade ” are decided by a judiciary qualification panel . The decision of the panel , insofar as it concerns dismissal , can be appealed to ORG , and from there - to ORG . Pursuant to LAW , the decision of a panel to remove a “ qualification grade ” is not subject to appeal .", "Under Articles CARDINAL - CARDINAL and CARDINAL of the Judiciary Qualification Panels Ordinance , judiciary qualification panels work under the authority of regional and higher courts , and are elected for a term of DATE by a secret vote of judges during the meetings of professional judicial associations . LAW states that only judges can be members of panels .", "Pursuant to LAW , any application concerning a particular judge lodged by a ORG authority or a private person shall be scrutinised provided that the panel is competent to examine the questions raised therein . Following such an application , a panel president or his deputy opens an inquiry into the facts alleged , draws up the list of persons to be invited to the panel hearing , and sets the date of that hearing in accordance with LAW . The judge concerned is entitled to have access to all the material collected for the hearing , and to submit his observations in reply before the hearing pursuant to LAW . Under LAW , the panel president , with the accord of the panel members , decides on the procedure for the hearing . A prosecuting or other legal authority is entitled to present its own opinion on the case pursuant to LAW .", "LAW provides that higher courts conduct “ supervisory review ” ( надзор ) of the activities of the lower courts . This means , according to ORG , CARDINAL and CARDINAL , that specific senior judicial officers , at any time , by request of a person or of their own motion , may lodge with a higher court a “ special appeal ” ( протест ) against the final decision of a lower court on all questions of fact and law . The “ supervisory review ” procedure has to be distinguished from the proceedings whereby a case may be reviewed on the ground of new or newly established facts ( Articles CARDINAL - CARDINAL ) .", "Following an amendment to LAW and LAW of DATE ( in force since DATE ) , judgments of ORG taken at first instance can be appealed against to ORG , under LAW ." ]

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[ "The applicant was born in DATE and lives in PERSON .", "The applicant has lived in her house since DATE . Her house is situated in a courtyard with CARDINAL other private houses . According to a document issued by ORG ( a subdivision of GPE ) on DATE , there is CARDINAL common entrance into the courtyard and a single access serving houses CARDINAL and DATE ( the latter being the applicant ’s house ) .", "NORP In DATE CARDINAL of the applicant ’s neighbours ( NORP ) built a fence around her own house which , according to the applicant , included a part of the area left for common use by the owners of the QUANTITY houses in the courtyard . The fence blocked the applicant ’s access to the only entry into the courtyard , and she was only able to reach her house through a gate left in the fence .", "In DATE NORP replaced the fence with a bigger one and did not leave any opening for the applicant to go through . On DATE the applicant ’s son - in - law ( S. ) came to visit her and discovered the new fence . At the request of his mother - in - law he demolished part of the fence in order to create an unobstructed passage to the applicant ’s house .", "At NORP ’s request , criminal proceedings were initiated against GPE DATE ORG acquitted him . The court noted statements made by several neighbours and an expert from ORG , as well as the certificate issued on DATE ( see paragraph CARDINAL above ) , according to which the courtyard had been reserved for common use by the owners of all QUANTITY houses and that there was CARDINAL access to the applicant ’s house , now blocked by the newly built fence . The court found that NORP had built the fence unlawfully and blocked the applicant ’s access to her own house , and that the actions of S. to free the passage to the house had been dictated by strict necessity . No appeal was lodged and the judgment became final .", "In reply to a complaint by the applicant , on DATE the Chief PERSON of PERSON informed her that , following an on - site visit , he had established that the territory on which the applicant ’s and NORP ’s houses were situated had been in common use and that , accordingly , the access to the applicant ’s house was also in common use . This was confirmed by a map annexed to the letter . ORG added that no decisions had been adopted which could have provoked disputes between the applicant and NORP", "On DATE the ORG decided to sell NORP a plot of land around her house , which included the common access road . On DATE the council and NORP concluded a contract for the sale of land .", "Following a complaint by the applicant , on DATE the same authority amended its decision of CARDINAL DATE by reducing the surface of the plot of land sold to NORP , in order to resolve the dispute between NORP and the applicant and to secure access to the applicant ’s house .", "D. challenged the municipality ’s decision of DATE in court . On DATE the ORG annulled the decision of CARDINAL DATE as unlawful . The court found that , according to a letter from the municipality ’s finance department dated DATE , the access road to the applicant ’s house had not been included in the plot of land sold to NORP", "In a separate court action , on DATE the municipality initiated court proceedings , asking for modification of the contract of sale of land to NORP It claimed that the plot of land had mistakenly included the common access road used to access the applicant ’s house .", "NORP In DATE the applicant initiated court proceedings against NORP and the municipality , asking for the annulment of all decisions taken in favour of NORP since DATE , including the decision of CARDINAL DATE , and of all contracts between the CARDINAL parties . She also noted that the fence built by NORP had blocked all access to her house and had even left her without a water supply , which had previously been secured via a water pipe ending in the common courtyard , now situated on NORP ’s land . The applicant asked for an order to remove all obstacles to her use of the house and to determine the manner of common use of the access by all the owners of the houses in the courtyard .", "The CARDINAL court actions were joined .", "On DATE ORG rejected the requests of the applicant and the municipality . The court found that the applicant had sufficient space to use her house and that , since the water pipe ran through the land owned by NORP , the applicant could only ensure access to water with NORP ’s agreement . It decided to discontinue the applicant ’s request to annul the decision of CARDINAL DATE , since its lawfulness had already been confirmed by the final judgment of ORG on DATE .", "On DATE the ORG quashed the lower court ’s judgment and ordered a full re - hearing of the case .", "On DATE ORG struck the applicant ’s action out of its list due to her failure to appear in court when summoned . That decision was quashed by ORG on DATE because there was no evidence in the file that the applicant had been summoned .", "On DATE ORG rejected the applicant ’s and the municipality ’s requests . It stated , inter alia , that the applicant had unobstructed access to her house , without giving any details . It also repeated the reasons it had given in its judgment of DATE regarding the applicant ’s access to water . The court refused to annul the contract for the sale of land concluded between NORP and the municipality on DATE , given that it was based on the municipality ’s decision of CARDINAL DATE , a decision previously confirmed as lawful .", "On DATE the ORG upheld that judgment . It essentially repeated the lower court ’s reasons regarding the lawfulness of the contract for the sale of land .", "In her appeal on points of law the applicant referred , inter alia , to her inability to fully enjoy her property right over the house , the access to which was blocked by the fence built by NORP She claimed that the contract of DATE had been concluded in breach of the law . The applicant asked for the annulment of the contract and the demolition of the fence in order to secure unobstructed access to her house .", "On DATE ORG dismissed the applicant ’s appeal , in her absence . The court acknowledged the confirmation by the Chief PERSON of PERSON of DATE , after he had visited the relevant courtyard , that the land and access road in question were in fact in common use . However , in the absence of any decision by GPE expressly reserving that land for common use , ORG opinion could not serve as a ground for annulling the lower court ’s judgments . Therefore the lower courts had correctly decided that the land sold to NORP had not been land in common use .", "The court also found that the applicant had been summoned to the hearing but had failed to appear without giving plausible reasons . The applicant claims that she was not summoned . The judgment of DATE was final .", "NORP The relevant provisions of domestic law and the relevant domestic practice have been set out in PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) .", "In addition , LAW ( h ) of LAW reads as follows :", "“ A revision request shall be granted when :", "...", "( h ) ORG has found a violation of the fundamental rights and freedoms ... ”" ]

[ "6" ]

[ "6-1" ]

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[ "On DATE the applicant did not appear at work at ORG , a public utility company , despite the instruction of his superior according to which no employee was allowed to take DATE off for DATE due to the heavy workload . The applicant justified his absence with the fact that he had celebrated a NORP religious holiday which was a public holiday for the citizens of NORP faith under the LAW and the respective law .", "On DATE the disciplinary committee of the company found that the applicant had breached the disciplinary rules and been absent from work without authorisation . The committee decided not to dismiss the applicant but fined him with a PERCENT cut in his salary for DATE .", "On DATE the applicant complained to the second instance committee , arguing that there had been a decision of ORG to the effect that CARDINAL DATE had been a public holiday for citizens of NORP faith . As a member of this religious community , he had informed his superior about his absence DATE .", "On DATE the second instance committee upheld the decision of CARDINAL DATE , on the ground that the applicant had breached the instruction of CARDINAL DATE by which no employee was allowed to take DATE off because of the heavy workload .", "On DATE the applicant appealed to ORG , claiming that his rights set out in Articles CARDINAL and CARDINAL of the LAW had been breached . In particular , he had been fined only because he had celebrated the NORP religious holiday and had not come to work on DATE , in accordance with the decision of ORG according to which CARDINAL DATE was a public holiday for the citizens of NORP faith .", "At the hearing before ORG the applicant stated that he expressed his religious beliefs individually without going to mosques .", "On DATE ORG dismissed the applicant ’s appeal on the ground that he did not adduce any evidence to prove that he was really of NORP faith .", "On DATE ORG dismissed the applicant ’s further appeal . It stated that it was true that religious beliefs were an inner matter for the individual person . However , in the instant case it was to be established whether the applicant ’s absence from work was justified . Therefore , it was important to establish the applicant ’s religious confession . The lower court was correct in dismissing the applicant ’s complaint as the applicant had not proven that he had been a NORP since he had also celebrated the NORP religious holidays .", "On DATE the applicant was again fined for not having appeared at work on DATE at the time of the celebration of another NORP religious holiday , GPE . The fine corresponded to PERCENT of his DATE salary over DATE .", "On DATE the applicant ’s complaint was dismissed by the second instance committee .", "The applicant complained to ORG that ORG had deprived him of his right to an additional paid DATE for NORP citizens although he had stated before the second instance committee that he was NORP . However , he had not considered it necessary to change his name and surname accordingly and wished to worship on his own .", "On DATE ORG dismissed the applicant ’s appeal . The court stated that under the relevant law persons of NORP faith enjoyed the right to paid religious holidays . However , the applicant had not given any evidence to corroborate his statement that he was a NORP . He had never been absent from work at the time of the NORP religious holidays before DATE . On the contrary , he had celebrated the NORP religious holidays , his parents were NORP and his way of life and diet showed that he was of NORP faith . From his employment contract and insurance it transpired that he had been registered as NORP without any mention of being a NORP . The court held that the applicant was a self - proclaimed NORP in order to justify his unjustified absence from work .", "On DATE ORG dismissed the applicant ’s appeal on the ground that while it was true that the religious beliefs were an inner matter , he had breached the disciplinary rules and had not come to work . He therefore had to justify his absence and it had been necessary to establish through evidence whether the applicant was truly of NORP faith . There was however no evidence to this effect , as the applicant , an ethnic NORP , had been absent from work during the NORP religious holidays and had celebrated them . Therefore , his absence from work was unjustified .", "On DATE the applicant complained to ORG that through disciplinary sanctions and judicial decisions he had been discriminated against because of his religious beliefs . In particular , for unknown reasons the courts had not considered his statement that he was of NORP faith to be credible and had asked him for further proof . He claimed that he should not be required to produce evidence of his religious beliefs .", "On DATE ORG refused to examine the applicant ’s allegations in respect of the decisions of DATE , CARDINAL DATE , DATE and CARDINAL DATE of the public utility company , the decisions of DATE and CARDINAL DATE of ORG and the decision of DATE of ORG for being lodged out of the DATE time limit provided for in the Rules of ORG .", "The Constitutional Court however examined the applicant ’s complaint in regard of ORG decision of CARDINAL DATE . It noted that the applicant requested the exercise of rights relating to freedom of religion but that he did not produce any evidence concerning his beliefs and refused to do so . As concerned the initial question as to whether when exercising a right to a paid public holiday based on religion it was enough for a citizen subjectively to assert his faith , it held :", "“ Taking into consideration that the rule of law is fundamental to the constitutional order of GPE under Article CARDINAL , paragraph CARDINAL(CARDINAL ) of the LAW , under which it should be implied that objective legal norms take precedence over subjective will when requesting the exercise of legal rights , and given the viewpoint of the representatives of the NORP and NORP religions ... ( the dean at ORG in GPE and the head of the NORP community in GPE ) that there are objective criteria to determine whether a citizen holds NORP and NORP religious beliefs ... the court held that it was necessary to establish objective facts related to the exercise of a right and to obtain evidence of them in a situation where a right is requested .", "In line with this , with a view to establishing objective facts to assess whether there was discrimination on religious grounds in this case , the court held a public hearing ( on DATE ) and CARDINAL consultative discussions ( on CARDINAL and DATE May and DATE ) and on the basis of their contents , in particular , on the basis of the applicant ’s statements , it was established that the contents of his religious belief ( even their form ) objectively did not correspond to those of the NORP faith ( and its form ) on several grounds ( for example : a lack of knowledge of the basic most important tenets of the religion through which its essence is expressed ... or of the way in which one ‘ ORG the NORP faith , etc . ) ”", "NORP The court concluded that the applicant had not been discriminated against on the basis of his religious beliefs by the requirement to establish the objective facts and dismissed the complaint .", "Article CARDINAL , as far as relevant , provides as follows :", "“ ( CARDINAL ) Citizens of GPE are equal in their freedoms and rights , regardless of sex , race , the colour of skin , national and social origin , political and religious beliefs , property and social status . ORG ( CARDINAL ) All citizens are equal before the LAW and law . ”", "Article CARDINAL , as far as relevant , provides as follows :", "“ ( CARDINAL ) The freedom of religious confession is guaranteed . ORG ( CARDINAL ) The right to express one ’s faith freely and publicly , individually or with others is guaranteed .", "... ”", "Article CARDINAL , as far as relevant , provides as follows :", "“ ORG :", "...", "( CARDINAL ) safeguards the freedoms and rights of individuals and citizens concerning the freedom of communication , conscience , thought and action , and the prohibition of discrimination among citizens on the grounds of sex , race , religion or national , social or political affiliation ;", "... ”", "Section CARDINAL provides that a person who considers that he or she is a victim of a violation of CARDINAL of the rights set out in LAW shall have the right to file an application with ORG within DATE from DATE he was served with a binding decision or a judgment .", "It provides , inter alia , that DATE and GPE shall be public holidays for all the citizens of the former GPE regardless of their confession and that PERSON and PERSON shall be public holidays for citizens of the NORP faith ." ]

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[ "14", "9" ]

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[ "The applicant was born in DATE and lives in the village of GPE in GPE of GPE .", "The applicant did not witness the killing of her husband and the account of events given below is based on witness statements by the applicant ’s fellow villagers . She submitted statements by PERSON and a Mr K.", "On DATE Mr A. and PERSON were guarding agricultural fields to the north of the village of ORG near LOC in GPE of GPE . At TIME they met the applicant ’s husband , Mr PERSON , born in DATE , and Mr NORP , who had come to get some wood in the nearby forest area .", "Some time later a number of armed men arrived in CARDINAL armoured personnel carriers . According to the witnesses , they were servicemen of the NORP armed forces . Without any prior warning the servicemen opened indiscriminate fire across the field . The witnesses hid so that they could observe the events in safety . The servicemen also fired at the applicant ’s husband and Mr NORP Mr PERSON was killed on the spot . Then the servicemen crossed the river and shot Mr NORP They dropped the CARDINAL dead bodies in the river , got in the armoured personnel carriers and drove away in the direction of ORG .", "According to PERSON and PERSON , the armoured personnel carriers should have passed near a federal military unit located at that time on the north - western outskirts of the village . They should also have passed through a federal check - point which blocked the motorway leading from ORG .", "After the soldiers had left , PERSON , PERSON and several other residents of ORG , who had come from the village having heard the shooting , took the corpses out of the water and took them back to the village .", "DATE the villagers informed the law - enforcement agencies of the incident .", "The killing of Mr NORP does not form part of the present application .", "According to the Government , on DATE the prosecutor ’s office of ORG ( “ the district prosecutor ’s office ” ) instituted an investigation into the murder of Mr PERSON and Mr NORP under LAW of LAW ( aggravated murder ) . The case file was assigned the number DATE . It does not appear that the applicant was duly informed of that decision .", "In the ORG ’s submission , on DATE the status of victim was given to Mr PERSON brother . The applicant ’s request that she be declared a victim of a crime was rejected , since she had not furnished the authorities with documents confirming that she was married to Mr PERSON .", "According to the Government , on DATE the investigating authorities inspected the scene of the incident , which was heavily saturated with a substance of a brown colour resembling blood , and found fragments of biological material resembling brain matter . They also found CARDINAL bullet cases of CARDINAL PERSON calibre . At a certain distance from that place , on the other river bank , the investigating authorities found CARDINAL bullet cases of CARDINAL x CARDINAL PERSON calibre , CARDINAL bullet cases of CARDINAL x CARDINAL PERSON calibre and CARDINAL bullet cases of QUANTITY calibre . Also , the tyre tracks of a motor vehicle , presumably an armoured personnel carrier , were found at the scene of the incident . According to an expert examination carried out on an unspecified date , the bullet cases found at the scene of the incident were of the type used for firing from various modifications of machine - guns , sniper rifles and self - loading rifles .", "According to the Government , a medical examination of Mr PERSON body carried out on an unspecified date reported that he had died due to an extensive open wound to the head with calvarias bone fracture and complete ejection of his brain matter .", "The Government further submitted , without specifying the dates , that the investigating authorities had identified and questioned eyewitnesses to the incident , PERSON . and PERSON In particular , PERSON , a warden of agricultural fields , stated that on DATE he had been guarding the field and the applicant ’s husband and Mr D. had been working in the nearby wood , when at TIME a group of men in green uniforms had arrived in CARDINAL armoured personnel carriers and started indiscriminate shooting . After the men in armoured personnel carriers had left , he and his workmate , PERSON . , had approached the place where the applicant ’s husband and Mr D. had been working and had found their corpses in the river nearby .", "According to the Government , PERSON . stated during his witness interview that on DATE he had been guarding the field , together with PERSON , whilst Mr PERSON and Mr NORP had been working in the nearby wood . Then servicemen in CARDINAL armoured personnel carriers had arrived and opened indiscriminate shooting from automatic firearms . TIME later the soldiers had ceased fire , then CARDINAL or CARDINAL of them had crossed the river and entered the wood in which the applicant ’s husband and Mr D. had been working . PERSON . had heard the soldiers curse , then several shots followed , and then he had seen the soldiers throw the dead bodies of Mr PERSON and Mr NORP into the river . After the soldiers had left in their armoured personnel carriers in the direction of the motorway , PERSON . and PERSON had taken the corpses out of the river and delivered them to their homes .", "In the Government ’s submission , PERSON had given similar oral evidence .", "The Government also submitted , without specifying the date , that the investigating authorities had also questioned the applicant , who had stated that on DATE her husband and Mr D. had left to get some firewood to the north of the village near the river . Some time later she had heard machine - gun fire coming from that direction , and some time later the dead bodies of her husband and Mr D. had been brought back by other residents of their village who had seen the incident and had stated that her husband and Mr D. had been killed by NORP servicemen .", "In their additional memorial of CARDINAL DATE submitted in reply to the applicant ’s observations , the Government further stated that the investigating authorities had also questioned a certain PERSON , a serviceman who had been on duty at a check - point in the vicinity of the scene of the incident on DATE . According to the Government , PERSON had submitted that on the date in question at TIME armoured personnel carriers had passed through the check - point , their registration numbers being covered with cartridge boxes , and that some time later local residents had arrived in several cars and had stated that unidentified persons had shot down their fellow - villagers . In the ORG ’s submission , Mr L. was unable to recall whether the local residents mentioned that the murder had been committed by servicemen .", "In the applicant ’s submission , she had regularly visited the district prosecutor ’s office and requested that she be informed of any progress in the investigation , but in vain .", "On DATE the applicant requested the district prosecutor ’s office to inform her of any progress in the investigation and allow her to join the proceedings as a victim and a civil claimant .", "On DATE the district prosecutor ’s office suspended the investigation in case no . CARDINAL for a failure to identify those responsible . The applicant was not promptly informed of the decision .", "On DATE the applicant requested the district prosecutor ’s office to inform her of the progress in the investigation and to admit her to the proceedings as a victim and a civil claimant .", "On DATE the district prosecutor ’s office quashed the decision of DATE for the reason that the investigation was incomplete and resumed the proceedings in case no . DATE . They noted , in particular , that Mr PERSON and Mr NORP had been killed “ for no good reason ” by “ servicemen of an unknown military unit ” .", "On DATE the district prosecutor ’s office decided to allow the applicant to join the proceedings as a civil claimant . On DATE they also granted her the status of victim of a crime . It was mentioned in both decisions that Mr PERSON and Mr NORP had been killed “ for no good reason ” by “ servicemen of an unknown military unit ” .", "On DATE the district prosecutor ’s office again stayed the proceedings in case no . CARDINAL for failure to identify those responsible .", "In the applicant ’s submission , since DATE she has not even once been informed by the authorities of the progress in the investigation in case no . DATE .", "On DATE the applicant requested the district prosecutor ’s office to carry out a number of investigative actions ; in particular , to question servicemen of the military unit from the DON-CARDINAL regiment of ORG of the ORG , who had been stationed on the north - western outskirts of ORG in DATE ; to question servicemen who had been on duty at the check - point on the motorway between GPE and ORG , which the alleged perpetrators had passed through after the incident ; to carry out ballistic tests ; and to check the firearms which had been in use by the servicemen of the DON-CARDINAL regiment , among other steps . According to the applicant , she has not received any reply to her request .", "On DATE the applicant requested the district prosecutor ’s office to allow her access to the investigation file .", "On DATE the district prosecutor ’s office observed that the investigation in case no . DATE was pending and dismissed the applicant ’s request , stating that under domestic law access to a case file could only be allowed upon completion of the investigation .", "On DATE the applicant challenged the prosecutor ’s decision of CARDINAL DATE before ORG .", "By a decision of CARDINAL DATE the Urus - Martan Town Court dismissed the applicant ’s complaint , stating that “ during the investigation a sufficient range of investigative steps aiming at resolving the crime and identifying those responsible [ had been ] undertaken ” , that the investigation had not yet been completed but had been suspended owing to the fact that it was impossible to establish those responsible , and that therefore the decision of DATE was well - founded , as under national law a victim could also gain access to the case file upon the completion of an investigation .", "On DATE ORG of GPE dismissed the applicant ’s appeal and upheld the first - instance decision .", "In DATE , when the application was communicated to them , the Government were invited to produce a copy of the investigation file in criminal case no . DATE opened in connection with the murder of the applicant ’s husband and Mr D. The Government refused to submit any documents from the file , stating that , under LAW , disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings . They also submitted that they had taken into account the possibility of requesting confidentiality under LAW of ORG , but noted that the ORG provided no guarantees that once in receipt of the investigation file , the applicants or their representatives would not disclose those materials to the public . According to the Government , in the absence of any sanctions in respect of applicants for the disclosure of confidential information and material , there were no guarantees concerning compliance by the applicants with the Convention and the Rules of Court .", "In DATE the ORG reiterated its request . In reply , the ORG again refused to produce any documents from the file for the aforementioned reasons . At the same time , they suggested that a ORG delegation could be given access to the file in GPE , with the exception of those documents containing military and ORG secrets , and without the right to make copies of the case file .", "For a summary of the relevant domestic law see ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ." ]

[ "13", "2" ]

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[ "The applicant , PERSON , is an NORP national , who was born in DATE and lives in PERSON . She is represented before the ORG by Mr PERSON , a lawyer practising in LOC .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "The applicant owed CARDINAL DEM ( NORP marks ) to CARDINAL creditors . She had made an unsuccessful attempt to obtain discharge of the residual debt on the basis of a debt reorganisation plan . However , the majority of the creditor ’s refused to agree to this plan .", "On DATE the applicant applied for legal aid with a view to initiating insolvency proceedings and achieving discharge of residual debt .", "On DATE ORG ( ORG ) dismissed her request . Leaving the question undecided whether the legal aid provisions contained in LAW ) applied to insolvency proceedings , it considered that in the present case the proposed proceedings did not have sufficient prospects of success , since CARDINAL the named creditors had refused to approve the applicant ’s debt reorganisation plan . Pursuant to LAW ) , the insolvency court could not replace their objection by approval and the insolvency proceedings had to be considered as having failed .", "The applicant appealed against this decision . She maintained that if she were refused legal aid in the insolvency proceedings , she would be deprived of the possibility to proceed to the subsequent procedural steps provided for by LAW , namely the opening of insolvency proceedings and the grant of discharge for thee residual debt after the expiry of the period of good payment behaviour . To make a difference in insolvency proceedings between debtors who were able to pay the court costs and others who were unable to do so , would exclude the less privileged from being granted a discharge for the residual debt and breach their right to access to court .", "On DATE ORG ( Landgericht ) dismissed the appeal . It pointed out that the question of legal aid in insolvency proceedings , including the proceedings relating to discharge of residual debt , was controversial . Unlike bankruptcy proceedings where , in the absence of any positive effect for the debtor , legal aid had to be refused for lack of sufficient prospects of success within the meaning of LAW of LAW , insolvency proceedings could have a positive outcome for the debtor , namely to give the debtor the opportunity to achieve a discharge of the residual debt in accordance with LAW . However , this advantage could only be granted if previously an unsuccessful attempt had been made to settle out of court with the creditors on a basis of a plan and subsequently insolvency proceedings conducted until at least the discontinuation of the proceedings . In the present case the plan for the settlement of debts submitted by the applicant had not been approved by CARDINAL the creditors . Their approval could not be replaced by the court . The out of court settlement proceedings must therefore be considered as having failed .", "ORG added that in any event Sections CARDINAL seq . of ORG were not applicable in consumer insolvency proceedings although there were no specific rules excluding the applicability of these provisions . However , the drafting history of LAW made it clear , on the other hand , that the legislator did not intend to include expressly provisions on legal aid in the new law . A clarification of this situation had not occurred . ORG pointed out that it was not its task to decide on the question whether such a clarification would be desirable , in particular having regard to the absence of sufficient financial means of most of the debtors and the purpose of discharging them from their remaining debts pursuant to LAW .", "On DATE ORG ( Bundesverfassungsgericht ) , sitting as panel of CARDINAL judges , decided not to entertain the applicant ’s constitutional complaint considering that it did not raise any constitutional issue of fundamental importance and that there was no appearance of a violation of the applicant ’s basic rights", "LAW ) came into force on DATE . The law distinguishes between regular insolvencies and consumer insolvencies ( simplified proceedings ) . The procedure is initiated at the request of the debtor or of a creditor if the debtor is insolvent . CARDINAL of the major amendments in the context of the new insolvency law was the introduction of a special consumer insolvency procedure . If the debtor is a natural person , he or she may be discharged from his or her remaining debts . In accordance with LAW as amended on DATE , natural persons , who are not able to pay the costs of the insolvency proceedings , may be granted a delay in paying the costs . This facilitates the opening of insolvency proceedings which are in turn a precondition for achieving a discharge of residual debt . A central issue , namely the granting of legal aid , is still unresolved .", "The consumer insolvency procedure consists of CARDINAL phases :", "The debtor must seek an out of court - settlement with the creditors . Only if all creditors agree the plan the proceedings may be completed at this stage .", "If his attempt to reach an agreement is unsuccessful , the court insolvency proceedings follow . The court attempts once more to arrive at an agreement between the creditors and the debtor on the basis of a debt reorganisation plan . The debtor must submit files detailing his or her assets and income , together with a list of creditors and their claims , to the court . Furthermore the debtor must prove that all attempts to secure an agreement with the creditors have failed . Where the majority of creditors agree to the plan , the court may substitute the approval of individual creditors under certain conditions .", "After the opening of insolvency proceedings claims are examined and validated . The debtor ’s assets are liquidated by a ORG appointed by the court . If the debtor settles with the creditors to the best of his ability , he is discharged from his remaining debts after a period of good payment behaviour . This period will be usually DATE ." ]

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[ "The applicant , ORG ( Висш духовен съвет ) of ORG , headed by Mr PERSON , was the officially recognised leadership of NORP in GPE , at least DATE . In reality , at the relevant time it was CARDINAL of the CARDINAL rival NORP religious leaderships in GPE . Mr PERSON , a NORP citizen born in DATE and residing in GPE , was its leader . He was the Chief PERSON DATE and the President of ORG DATE .", "At DATE a process of democratisation commenced in GPE . Soon thereafter some NORP believers and activists of the NORP religion in the country sought to replace the leadership of their religious organisation . They considered that PERSON , who was the Chief PERSON at that time , and the members of ORG had collaborated with the communist regime . The old leadership , with Mr LANGUAGE as Chief Mufti of NORP , also had supporters . This situation caused divisions and internal conflict within the NORP community in GPE .", "At DATE a new Government , formed by ORG ( GPE демократичните сили – “ the ORG ” ) and ORG ( PERSON за права и свободи DATE “ the DPS ” ) , took office .", "On DATE ORG ( PERSON по вероизповеданията - “ the Directorate ” ) , a governmental agency attached to ORG , declared the election of Mr LANGUAGE in DATE as Chief Mufti of the NORP in GPE null and void and proclaimed his removal from that position . This decision was based on findings , inter alia , that Mr LANGUAGE ’s election in DATE had been politically motivated .", "The ORG appointed a CARDINAL - member interim governing body of the ORG religious organisation , considering that that was “ the only possible means of preventing the organisational disintegration of the NORP denomination ” .", "A national conference of NORP , organised by the interim leadership , took place on DATE . It elected Mr PERSON as Chief PERSON and also approved a new statute , which was registered in accordance with sections DATE and CARDINAL of LAW . After DATE the supporters of PERSON obtained full control over the property and activities of the NORP community .", "Mr GPE , who claimed that he remained the Chief Mufti , challenged the decision of DATE before ORG . The proceedings ended with a final judgment of DATE . ORG , while considering that the impugned decision was not amenable to judicial review , nevertheless commented that the ORG ’s decision to declare Mr PERSON ’s election null and void had been within its competence . In so far as the impugned decision had also proclaimed “ the removal ” of PERSON LANGUAGE from his position of Chief PERSON , this had been ultra vires . However , it was unnecessary to annul this part of the ORG ’s decision as in any event it had no legal consequences .", "NORP The leadership dispute between Mr LANGUAGE and PERSON continued throughout DATE and DATE . The official position of ORG remained that PERSON was the legitimate Chief PERSON of NORP . At the same time the ORG apparently sought to “ resolve ” the dispute through the “ unification ” of the CARDINAL factions under a common leadership .", "On DATE the supporters of PERSON held a national conference , which proclaimed itself the legitimate representative of NORP believers . The conference elected a leadership and adopted a statute . Mr PERSON was elected President of ORG . After the conference the newly elected leaders applied to the ORG for registration as the legitimate leadership of NORP in GPE .", "At DATE parliamentary elections took place in GPE . ORG ( Българска социалистическа партия – “ the ORG ” ) obtained a majority in ORG and formed a new government , which took office in DATE .", "On DATE the Deputy Prime Minister issued a decree approving the statute of the NORP denomination as adopted by the supporters of PERSON on DATE . On DATE the ORG registered the leadership elected at that conference and effectively removed PERSON and his supporters . In DATE the faction led by Mr PERSON assumed full control over the property and activities of the NORP community in GPE .", "Mr PERSON appealed to ORG against the decision of the ORG registering Mr PERSON leadership . Mr PERSON submitted , inter alia , that the conference of DATE had been organised by people outside the NORP religious organisation presided over by him . Accordingly , they could register their own religious organisation but could not claim to replace the leadership of another . PERSON asked ORG either to proclaim the DATE decision null and void as being contrary to the law or to declare that it constituted the registration of a new religious community , the existing NORP organisation being unaffected . The ORG did not have the right , he argued , to impose a single leadership on the NORP .", "On DATE ORG dismissed the appeal . The court stated that under LAW enjoyed full discretion in its decision as to whether or not to register the statute of a given religion . ORG jurisdiction was therefore limited to an examination of whether the impugned decision had been issued by the competent administrative organ and whether the procedural requirements had been complied with . In that respect the decision of DATE was lawful .", "As regards the request for interpretation of the DATE decision , it was not open to ORG , in the context of those particular proceedings , to state its opinion as to whether it had the effect of creating a new legal person , or introducing changes , and whether after this decision there existed CARDINAL parallel NORP religious organisations .", "Following the removal of PERSON , in DATE the NORP believers who supported him held their own assembly and re - elected him Chief Mufti , while introducing changes in the organisation ’s statute and leadership . PERSON then applied to ORG for registration of the amended statute and the new leadership . Not having received any response , PERSON appealed to ORG against the tacit refusal of his application .", "On DATE ORG delivered its judgment . It noted that in DATE the Chief ORG as represented by PERSON had been duly registered as a religious denomination and had thus obtained legal personality of which it had not subsequently been deprived . Therefore , ORG was under an obligation , pursuant to sections CARDINAL and CARDINAL of LAW , to examine a request for registration of a new statute or of changes in the leadership of the existing religious denomination . Accordingly , ORG ruled that the ORG of ORG tacit refusal had been unlawful and remitted the file to ORG , which was required to examine it .", "On DATE the Deputy Prime Minister refused to register the DATE statute and leadership of the Chief ORG as represented by Mr PERSON . He sent him a letter stating , inter alia , that ORG had already registered a leadership of the NORP community in GPE , which was that elected by the DATE conference with PERSON LANGUAGE as President of ORG . The Deputy Prime Minister concluded that the request “ [ could not ] be granted as it [ was ] clearly contrary to the provisions of LAW ” .", "On DATE Mr PERSON appealed to ORG against the refusal of DATE .", "On DATE ORG quashed the refusal of the Deputy Prime Minister to register the DATE statute and leadership headed by PERSON PERSON on the ground that it was unlawful and contrary to LAW . That refusal was , moreover , “ an unlawful administrative intervention into the internal organisation of [ a ] religious community ” . ORG again ordered the transmission of the file to ORG for registration .", "Despite ORG judgments of DATE and DATE ORG did not grant registration to the religious leadership headed by Mr Hasan .", "In DATE the government of the ORG stepped down and an interim cabinet was appointed . At the general elections that followed in DATE the ORG obtained a majority in ORG and formed a new government .", "The new Deputy Prime Minister and ORG urged the CARDINAL rival leaderships , of PERSON and of PERSON GPE , to negotiate a unification .", "On DATE , in a letter to the Deputy Prime Minister and the ORG , the religious leadership presided over by PERSON demanded the removal of PERSON .", "On DATE ORG headed by Mr LANGUAGE , also in a letter addressed to the Deputy Prime Minister and the Directorate , proposed the holding of a unification conference to be organised by a joint committee composed of representatives of the opposing factions . The Deputy Prime Minister was asked to serve as guarantor of the unification process and to ensure full representation at the conference of all NORP religious communities . The letter also indicated that the current official leadership presided over by Mr PERSON agreed to freeze any movements of staff or disposals of community property pending the conference .", "On DATE the contact groups elected by the rival factions – composed of CARDINAL members DATE signed an agreement to convene a national conference of all NORP believers . The agreement was also signed by the Deputy Prime Minister and ORG . It provided , inter alia :", "“ CARDINAL . The all - NORP conference shall be organised on the basis of full representation of the NORP denomination . It shall not be based on the CARDINAL existing statutes [ of the rival leaderships ] . [ The ] Deputy Prime Minister ... and ORG undertake to guarantee the implementation of this principle .", "NORP ... The [ rival groups ] undertake not to obstruct the spirit of unification underlying the conference , failing which the ORG shall take appropriate administrative measures against the persons suspected of [ obstruction ] .", "Pending the conference , the [ leadership headed by Mr NORP ] undertakes to refrain from any administrative decisions , [ such as ] appointments ...", "The [ leadership headed by Mr NORP ] consents to a freeze on all bank accounts ... and declares that pending the conference it will not enter into any transaction ...", "The joint committee shall draw up rules and a procedure for the organisation of the conference ... ”", "On an unspecified date the joint committee ruled that the assembly of each local community attending a mosque should elect CARDINAL delegates to the national conference . It also decided that TIME of the assemblies’ proceedings had to be entered on a form provided by ORG and certified by the local mayor .", "On DATE the joint committee decided that the conference should be held on DATE and also agreed on the distribution of expenses .", "Local assemblies for the election of delegates were held on DATE throughout the country . The local mayors issued letters certifying the results of the elections .", "NORP The applicant organisation has submitted copies of CARDINAL complaints to the ORG dated DATE , CARDINAL by a local religious leader and CARDINAL by the mayor of a village . The letters stated that persons connected with the ORG had used threats to take possession of the results of the elections of delegates in the CARDINAL localities concerned .", "On DATE and DATE Mr LANGUAGE and those who had signed the unification agreement on behalf of ORG headed by him wrote to the Prime Minister and ORG stating that the conference planned for DATE was not being organised in accordance with the statute of the NORP religious organisation and that it was therefore unlawful . Those who had signed the agreement of DATE stated that they had been forced to do so by ORG and declared the withdrawal of their support for that agreement . The letter signed by PERSON further described the participation of the ORG in the preparation of the conference as unacceptable ORG interference in the ORG internal affairs .", "On DATE CARDINAL delegates attended the conference . Only those whose election had been certified by the mayors were allowed to participate . According to the press , the verification of the delegates’ credentials was carried out by employees of ORG . Its Director addressed the conference , stating , inter alia , that PERSON , who did not attend , had “ failed the test ” . With these words the Director apparently blamed Mr PERSON for having withdrawn from the unification process .", "According to the applicant organisation , the ORG , a political party with a large majority of ethnic NORP among its members , was involved in the organisation of the conference . The party was allegedly very close to the ruling ORG and was implementing the political decision to replace the leadership of the NORP community . According to the applicant organisation , CARDINAL of the delegates on DATE were mayors elected on the ORG ticket .", "The conference adopted a new statute of the NORP denomination in GPE and unanimously elected a new leadership comprising CARDINAL members of the leadership of PERSON and other persons . It appears that no leader of the applicant organisation was among the newly elected leadership . The conference passed a resolution authorising the new leadership to conduct an audit and to seek the prosecution of PERSON for alleged unlawful transactions .", "On DATE the Deputy Prime Minister registered the newly elected leadership , relying on sections CARDINAL and CARDINAL of LAW . The new leadership took over all the organisational aspects and assets of the NORP community in GPE .", "Mr GPE , who claimed that he remained the President of ORG , appealed on its behalf to ORG against the ORG ’s decision to register the new leadership . He claimed that the persons who had signed the agreement for the holding of a unification conference on behalf of the applicant organisation had never been officially authorised to do so ; that the conference had been unlawful because of that fact and since those persons had in any event withdrawn ; and that the authorities had interfered in an inadmissible manner in the internal affairs of the NORP community . That was so because ORG had prepared the forms on which the results of the local elections for delegates had been recorded and also because those results had been certified by the mayors . Furthermore , among the elected delegates there had been a number of persons who were local mayors or active members of CARDINAL political party , the ORG . Finally , the applicant organisation argued that there had been irregularities and manipulation in the election of delegates .", "On DATE ORG held a hearing . It admitted in evidence the material submitted by the applicant organisation but refused its request for a disclosure order against ORG . That request apparently concerned documents about the preparation of the DATE conference and the election of delegates . The court also refused to hear witnesses .", "On DATE ORG , sitting as a bench of CARDINAL judges , rejected the appeal as being inadmissible . It found that ORG headed by Mr PERSON had no locus standi to lodge an appeal as it had never been validly registered . The registration acts of CARDINAL and DATE had been based on a decision by a Deputy Prime Minister who had not , however , been duly authorised by ORG to approve the statutes of religious denominations . As a result ORG headed by PERSON had never legally existed and all its acts DATE were null and void .", "On an appeal by the applicant organisation , on CARDINAL DATE a CARDINAL - member bench of ORG quashed the decision of DATE and remitted the case for examination on the merits . The bench noted that by judgment of CARDINAL DATE ORG had found that the DATE registration of ORG headed by PERSON had been lawful . That finding was final and binding . Therefore , the applicant ’s appeal could not be rejected for lack of locus standi .", "In the reopened proceedings a CARDINAL - member bench of ORG examined the appeal on the merits and dismissed it on DATE . The presiding judge was the same person who had presided over the previous examination of the case , which had ended with the inadmissibility decision of DATE . He was also CARDINAL of the CARDINAL judges who had delivered judgment on DATE in the case concerning PERSON PERSON ’s removal in DATE .", "The court found that the acts of the authorities did not constitute an interference with the internal organisation of the NORP community . The decision to hold a unification conference had been taken freely by representatives of the CARDINAL rival groups . The rules and procedures for the election of delegates and for the holding of the DATE conference , including those concerning the results of the local elections for delegates and their certification , had been drawn up by the joint committee . ORG had contributed to the organisation of the conference purely at the parties’ request . It had acted in accordance with the agreement between the CARDINAL leaderships and the decisions of the joint committee . The ORG ’s task had been to contribute to and guarantee tolerance and respect in inter - religious relations as well as in the relations between different groups belonging to CARDINAL and the same religion . The fact that ORG presided over by PERSON had withdrawn at TIME did not call into question the validity of the conference , which had taken place in accordance with the negotiated rules . It was true that these rules derogated from the statute of the NORP community as in force at the relevant time but the derogation had been decided upon freely by the CARDINAL leaderships in order to resolve the conflict within the community . It followed that the impugned act , the decision of DATE registering the newly elected leadership of the NORP community , was in accordance with the law .", "The applicant organisation submitted a cassation appeal against the judgment of CARDINAL DATE . It alleged , inter alia , that not all the relevant evidence had been collected and examined .", "On DATE the appeal was dismissed by a CARDINAL - member bench of ORG , which upheld the reasoning of the impugned judgment . It also found that the relevant facts had been clarified and that the additional evidence submitted by the applicant organisation in the cassation proceedings had been the same as that submitted earlier . The applicant organisation was legally represented in the above proceedings .", "The divide within the NORP community in GPE continued . It appears that the legitimacy of a community assembly held in DATE was disputed by some leaders . Divisions also persisted at local level . In a letter of DATE , ORG certified that it had not registered the local leadership of the NORP community in GPE as CARDINAL separate local assemblies had elected their leaderships and were in dispute . Similar problems occurred in GPE and Russe in DATE and DATE .", "In DATE the ORG appointed QUANTITY persons to represent the NORP community in GPE temporarily , pending judicial proceedings concerning the validity of the election of a new leadership at a national conference held in DATE .", "The relevant provisions of the DATE LAW read as follows :", "“ ( CARDINAL ) ORG shall be free .", "( CARDINAL ) NORP institutions shall be separate from the State ...", "( CARDINAL ) Religious institutions and communities , and religious beliefs shall not be used for political ends . ”", "“ ( CARDINAL ) NORP The freedom of conscience , the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable . The ORG shall assist in the maintenance of tolerance and respect between the adherents of different denominations , and between believers and non - believers .", "( CARDINAL ) The freedom of conscience and religion shall not be exercised to the detriment of national security , public order , public health and morals , or of the rights and freedoms of others . ”", "ORG judgment no . CARDINAL of DATE interpreting the above provisions states , inter alia , that the ORG must not interfere with the internal organisation of religious communities and institutions , which must be regulated by their own statutes and rules . The ORG may interfere with the activity of a religious community or institution only in the cases contemplated in LAW and CARDINAL § CARDINAL of the LAW . An assessment as to whether there is such a case may also be undertaken at the time of registration of a religious community or institution .", "The Religious Denominations Act DATE was amended several times . The relevant provisions of the LAW , as in force at the time of the events at issue , read as follows .", "“ ( CARDINAL ) A religious denomination shall be considered recognised and shall become a legal person upon the approval of its statute by ORG , or by a Deputy Prime Minister authorised for this purpose .", "( CARDINAL ) ORG , or a Deputy Prime Minister authorised for this purpose , shall revoke the recognition , by a reasoned decision , if the activities of the religious denomination breach the law , public order or morals . ”", "“ ( CARDINAL ) Every religious denomination shall have a leadership accountable to the ORG .", "( CARDINAL ) The statute of the religious denomination shall establish its governing and representative bodies and the procedure for their election and appointment ... “", "“ ( CARDINAL ) The national governing bodies of the religious denominations shall register with ORG , and local governing bodies with the local municipalities , and they shall submit a list of the names of all members of these governing bodies . ”", "The Act also laid down rules regarding the activities of a religious denomination , imposed requirements as regards its clergy and gave ORG wide supervisory functions . In its judgment no . CARDINAL of DATE ORG , while agreeing that certain provisions of LAW were clearly unconstitutional ( the court cited as examples several provisions concerning the powers of the ORG to dismiss clergymen and to control the activities of religious organisations ) , found that it was not its task to repeal legal provisions adopted prior to the entry into force of the DATE LAW , the ordinary courts being competent to declare them inapplicable .", "Under Decree No . CARDINAL of ORG of DATE , as amended , the competence of ORG includes “ contacts between the ORG and religions denominations ” , assistance to central and local administrative authorities in solving problems which involve religious matters and assistance to religious organisations as regards education and publications .", "In accordance with the Regulations on the registration of the local leadership of religious denominations , issued by the Government in DATE ( ORG no . CARDINAL of DATE ) , such registration is only possible if the election of a local leadership has been approved by the registered national leadership of the religious denomination .", "The Religious Denominations Act DATE has been interpreted in the administrative practice of the ORG and ORG as requiring that each religious denomination must have a single leadership and that parallel organisations of the same religious denomination are not allowed . The judicial practice during the relevant period evolved from the initial position that ORG and the ORG enjoyed unfettered discretion in the registration of the leadership and statute of a religious denomination ( see paragraphs CARDINAL and CARDINAL above ) to the position that the courts , when asked to rule on the lawfulness of a Government decision registering a new religious leadership , had to examine whether the new leadership had been appointed in compliance with the religious denomination ’s statute , in its version as registered by ORG ( see paragraphs CARDINAL and DATE above and also the following judgments of ORG : judgment no . DATE of DATE in case no . CARDINAL , judgment no . CARDINAL of DATE in case no . CARDINAL/CARDINAL and judgment no . CARDINAL of DATE in case no . CARDINAL ) .", "The Religious Denominations Act DATE was repealed with effect as from DATE , upon the entry into force of the new Religious Denominations Act DATE .", "The new LAW provides for judicial registration of religious denominations as legal persons . Before deciding , the court may request an expert opinion from ORG .", "Section CARDINAL(CARDINAL ) provides that CARDINAL registration may be made concerning a religious denomination with the same name . Section CARDINAL provides that a person who acts on behalf of a religious denomination without authorisation is to be fined by ORG . Paragraph CARDINAL of the transitional provisions to the LAW provides that persons who had seceded from a registered religious institution before the LAW ’s entry into force in breach of the institution ’s government - registered internal rules are not entitled to use the name of the religious institution or its assets .", "In DATE CARDINAL members of ORG asked ORG to repeal certain provisions of LAW as being unconstitutional and contrary to the Convention . The Constitutional Court gave judgment on DATE .", "Sections CARDINAL(CARDINAL ) and CARDINAL were not among the provisions challenged but paragraph CARDINAL of the transitional provisions was ( see paragraph CARDINAL above ) .", "ORG could not reach a majority verdict , an equal number of judges having voted in favour and against the request to declare that provision unconstitutional . According to ORG practice , in such circumstances the request for a legal provision to be struck down is considered to be dismissed by default . The judges who voted against the request considered , inter alia , that the principle of legal certainty required that persons who had seceded from a religious denomination should not be allowed to use its name . Further , it was obvious that they could not claim part of its assets , as the assets belonged to the religious denomination as a legal person . The judges who considered that the provision was unconstitutional stated that it purported to regulate issues that concerned the internal organisation of religious communities and thus violated their autonomy . Those judges further stated that the provision , applied in the context of existing disputes , favoured CARDINAL of the groups in a divided religious community and , therefore , did not contribute to maintaining tolerance but rather frustrated that aim . It thus violated LAW ." ]

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[ "The applicant is a NORP national , born in DATE and living in GPE .", "The applicant , who has a sociology degree , is a journalist and broadcaster . He has written for many national newspapers and magazines and has made a number of appearances on radio and television .", "In DATE an article was published in ORG magazine in which the applicant suggested that the athlete PERSON used banned performance - enhancing drugs . The article stated , inter alia :", "“ On the basis of circumstantial evidence many believe , but can not prove that ORG has been taking performance - enhancing drugs ... If he has been outwitting the testers for DATE , it is extremely unlikely that ORG will be caught in DATE left before his likely retirement from competitive sprinting . Nevertheless , there is no bloody hypodermic needle , and no direct evidence that points the finger at FAC ...", "Certainly DATE between injuring himself in GPE and winning in GPE would have allowed ORG to recover from a slight hamstring injury and , without fear of a random test , put in DATE intensive training , boosted by banned drugs , and perhaps human growth hormone , that would give him the explosiveness and power to run TIME into a headwind . We do n't know . ...", "ORG a number of other possible effects of these performance - enhancing drugs . His remarkable physique , in regard to both its bulk and definition , is consistent with the use of anabolic steroids . ... Similar considerations apply to speed ( sic ) with which he put on weight . In the early part of his career , he was a beanpole sprinter but DATE he put on QUANTITY in bodyweight to come in at the QUANTITY powerhouse that he has stayed at since . Steroids have other side - effects ... CARDINAL of the commonest are grandiosity , fixated delusions and a persecution complex . PERSON genuinely seems to think that running QUANTITY faster than anyone else is rather more than an exciting , even unique spectacle , but some kind of monumental contribution to human culture . ...", "Human growth hormone ... costs £ MONEY for a DATE 's supply . ORG is a steroid that is even more expensive ... Christie is rich . He also shows most of the physical , behavioural and psychological features of an athlete that regularly uses steroids . This conclusion is reinforced generally by the performances that he continues to turn in at an age when psychologically he should be in decline and specifically by his uncanny quick recovery from his injury at GPE . ...", "Aside from all the non - testing criteria that provide circumstantial evidence to suggest that ORG may be a regular user , the final clinching CARDINAL is ORG own character and attitude to competition . He is a win - at - all - cost athlete and his determination to succeed may lead people to believe that he would not deprive himself of an advantage enjoyed by some of his rivals , thereby denying himself his only chance of fame and fortune . ”", "In DATE Mr Christie commenced an action in the High Court for defamation against the applicant , the magazine 's editor and the publishing company . The editor and publishing company were represented by a solicitor - advocate specialising in defamation and media litigation , Mr PERSON . Mr Price had advised the publishing company prior to publication about the legality of the article in question . A separate action was launched by Mr Christie against the printers and various distributors of the magazine .", "During the greater part of the proceedings the applicant represented himself because he could not afford to pay legal fees and because , under Schedule CARDINAL , Part II , of LAW DATE , legal aid was not available for defamation actions . His defence was that the allegations made in the article were true in substance and in fact .", "In a newspaper article among the papers submitted by the applicant to the ORG , it was reported that the applicant had , in DATE , successfully defended himself in criminal proceedings concerning a charge of assaulting a neighbour .", "On DATE there was a directions hearing at which Mr Price ( on behalf of the editor and publishing company ) , the applicant and counsel for PERSON made representations . An order was made requiring , inter alia , that the plaintiff and the defendants should exchange statements of witnesses of fact by DATE , and could each call CARDINAL expert witnesses ( a physiologist , a pharmacologist , a psychologist and an athletics coach ) , but only if the substance of each expert 's evidence was disclosed in a report to be exchanged by DATE . These time - limits were subsequently extended by consent to some time in DATE and DATE respectively .", "The applicant wished to rely on the evidence of an athlete , PERSON , who had allegedly told the applicant that Mr Christie had introduced him to performance - enhancing drugs . In respect of Mr Walusimbi the applicant served the following document dated DATE , which purported to be a statement of the nature of the evidence intended to be adduced under LAW ( RSC ) , LAW , Rule CARDINALA(CARDINAL ) ( see below ) :", "“ The second defendant has issued a subpoena on PERSON ... He intends to adduce evidence from him concerning :", "( a ) his masked appearance on the ORG [ television ] programme ' Drug Olympics ' ... in which he admitted taking performance - enhancing drugs ;", "( b ) his training relationship with PERSON ;", "( c ) his trips abroad with PERSON to various ORG , in particular one in GPE , ' ORG ;", "( d ) his knowledge of PERSON own use of performance - enhancing drugs . ”", "One of the expert witnesses whom the applicant wished to call was an osteopath called PERSON . PERSON had been involved in sports medicine for over DATE and had treated PERSON . He allegedly told the applicant that as a result of his experience he was able to tell by the look and feel of an athlete 's body whether that athlete had taken performance - enhancing drugs , and that he was certain that Mr Christie had been a regular user . However , because of his previous association with PERSON Christie , PERSON did not wish to give a statement . The applicant did not , therefore , serve any form of report in respect of PERSON expert evidence as required by the order for directions . Instead , in DATE , he served the following document , which he mistakenly believed to be acceptable under the ORG , LAW , Rule CARDINALA(CARDINAL ) in place of an expert 's report :", "“ PERSON is a professional physiotherapist and went to the DATE Barcelona Olympic Games as team physiotherapist for the athletics squad . He is conversant with the effects of steroids on the body and talks about ' steroid feel ' and the particular look of a body that has been built up using anabolic - androgenic steroids . He is an expert on how the body responds to these drugs when supplemented by power lifting . He understands the effects of ageing on the performance of ' fast - twitch ' muscle . He has massaged the Plaintiff in the early part of his career .", "A subpoena has been taken out for PERSON . ”", "The trial was listed to start on DATE . By this time , the applicant was the sole defendant in the proceedings because the editor had been killed in a traffic accident in DATE and the publishing company had become insolvent . On DATE the applicant instructed Mr Price , who had had no involvement in the case since the death of the editor , to represent him as his solicitor - advocate . Mr Price had previously given advice to the editor and the publishing company both prior to , and following , publication of the article and had drafted a defence to Mr ORG action on the limited information then available .", "Mr Christie applied to prevent Mr Price from acting on the grounds that he had previously been responsible for the decision to publish the article concerned , having given legal advice to the editor , and that the legality of that decision was itself now at issue . As a result , PERSON argued that Mr Price had a conflict of interest . Mr ORG application was granted by the trial judge , Mr Justice PERSON , in ORG on DATE , but his decision was reversed by ORG DATE . The applicant was represented by PERSON at both hearings .", "DATE before the trial Mr ORG solicitors indicated that they intended to make an application to the trial judge seeking to prevent the applicant from calling a number of witnesses , including PERSON and PERSON Walusimbi . Mr Price had , since being instructed by the applicant , made efforts to secure full statements from those witnesses . Following the indication received from Mr ORG solicitors , Mr PERSON agreed to make a signed statement , in which he described , inter alia , the effects of steroids and the high level of usage amongst athletes , and stated that “ it would be almost impossible to succeed at the highest levels in the QUANTITY [ event ] without the use of banned performance - enhancing drugs ” . This statement was served on Mr ORG solicitors at TIME on DATE , TIME before the trial was due to commence .", "On DATE and DATE Mr Justice PERSON heard preliminary submissions from Mr Price on behalf of the applicant and counsel for PERSON Christie as to the admissibility of the evidence of the witnesses concerned . On DATE , in relation to the admissibility of the expert evidence of PERSON and a Professor PERSON on behalf of the applicant , he ruled as follows :", "“ The rules [ on disclosure of evidence ] are designed to avoid an ambush . ... They are not to beat inefficient litigants . There is provision for the Judge in exercise of his duty to give leave for evidence to be called . Mr Price at the forefront of his argument says the obligation was on the Plaintiff to ensure that the PERSON was not taken by surprise . That is a misunderstanding of the rules of the ORG . The rules provide that if the party wants to call an expert he should provide the substance of the expert 's report . Mr Price contends that PERSON expert statement leads to CARDINAL conclusion ; having observed the Plaintiff and massaged his body , everybody should understand what Mr PERSON was going to say . I think there is another way of reading the evidence . The Plaintiff might have concluded that it was useless evidence . This is compounded by the fact that PERSON statement deals with the ability to observe the effect of anabolic steroids but nowhere does he say that about the Plaintiff . The nearest he gets is at paragraph CARDINAL where he says that PERCENT of athletes use steroids systematically . That statement adds nothing to the defence as pleaded .", "There is no obligation on a party to draw the attention of the other party to the defect in its witness statements . At trial the admissibility of statements is often dealt with . There is criticism of the Plaintiff on this point but it is false . The obligation is on the party to make sure that it complies with Orders . It has not been suggested that the Defendant was unable to obtain written statements . The fact that he has statements suggests quite the contrary . The Defendant was a litigant in person but Mr Price acted for a period of time and Mr PERSON is not inexperienced . He has very much in mind what is involved . It may be said that Mr Price did not have full conduct but he has had since DATE . A review would have revealed that the statements did not comply with the Orders made . ... That I have discretion is clear . The exercise of that discretion is to ensure a fair disposal . ... ”", "The judge continued that he had to balance the prejudice that would be suffered by the applicant if the evidence were excluded against that which would be suffered by Mr Christie if PERSON testimony were admitted . It would be unfair to allow PERSON to give evidence at trial without giving Mr PERSON time to call counter - evidence , but to order an adjournment for this purpose would itself be prejudicial to Mr Christie because the applicant did not have sufficient means to provide an indemnity for the extra costs which would be incurred as a result . The judge concluded : “ If there is more prejudice to the Defendant than the Plaintiff he is the person who is responsible . The fault lies with him . I will not allow Mr PERSON 's evidence . ” He also refused the applicant leave to adduce that part of Professor PERSON 's evidence which dealt with the efficacy of drug testing and the ease with which the ban on drug taking could be evaded on the basis that these issues were not pleaded by the applicant and an amendment to the pleading should not be allowed .", "On DATE the judge refused to grant the applicant 's request for leave to admit PERSON evidence , on the ground that it would be unfair to PERSON to be faced with wide allegations about his drug taking , the details of which he would not know until PERSON took the stand .", "The applicant appealed against these rulings to ORG . He was again represented by PERSON at the appeal hearing , which took place on DATE . Lord Justice May , delivering the judgment of the court , commented , as had the trial judge , that the interests of the applicant were “ identical ” to those of his previous co - defendants , the editor and the publishing company . He went on :", "“ I deal with PERSON statement first . The gist statement served in DATE relating to PERSON contained very little detail of the substance of the evidence that he might give . It refers only to PERSON experience and qualifications as a physiotherapist and then says baldly that he massaged the plaintiff during the early part of his career . The witness statement now served gives a more detailed account of his experience and names some of the sportspeople , including the plaintiff , whom he has treated . It refers to the benefit and effect of anabolic steroids for athletes , particularly in the QUANTITY event . It states that in Mr PERSON 's experience a large proportion of professional athletes use steroids . It says that from his experience Mr PERSON is generally able to tell by looking whether an athlete is taking steroids and that he can also tell this if he manipulates their muscles . ...", "Mr Price accepts that the gist statement did not put forward any affirmative version of what PERSON might say , but he submits that it could be inferred that PERSON would give the evidence that the look and feel of the plaintiff 's body indicates use of banned drugs . I do not accept this submission . This gist statement is not even inferentially a statement of the evidence intended to be adduced such as is referred to in LAW , Rule CARDINALA(CARDINAL ) . ...", "Matters which Mr Price would have us infer are intended to be said by PERSON are neither pleaded nor the subject of any previously served witness statement or expert 's report and I see no reason why the plaintiff should have anticipated the sudden arrival of this material at the very last moment .", "Mr Price says that there is a strong public interest in allowing all relevant and probative evidence to be adduced lest there may be a verdict which is contrary to the truth . ... The judge took this important submission into account and so do I. The fact is that there are competing public interests , CARDINAL of which is that parties to litigation should not turn up at the very last moment with unheralded evidence which puts another party at a disadvantage , and another of which is that the general administration of justice demands , for reasons which have been articulated frequently by this court , that fixed trial dates should not be abandoned at the last moment other than in quite exceptional circumstances . ...", "It seems to me that the case for exercising the judge 's discretion in relation to Mr Moule as he did is clear and overwhelming . PERSON evidence was not heralded in the gist statement . The statement was served at the latest possible moment before the start of the trial . Without an adjournment of the trial ( which the judge rightly regarded as out of the question and which would in any event have prejudiced the plaintiff ) the plaintiff would be prejudiced by not being able properly to deal with the evidence . Any prejudice to the defendant was his own fault .", "The judge had to make a balancing judgment , which in my view he did upon proper and unassailable principles . Accordingly , I would not disturb the judge 's finding in relation to PERSON evidence . ”", "In relation to Mr Walusimbi 's evidence , he said :", "“ A gist statement was served in relation to Mr Walusimbi and referred to what he had said in a ORG programme . A transcript of the programme was provided on discovery . The [ applicant ] now wants to call Mr Walusimbi to say that the use of performance - enhancing drugs by athletes is widespread and that there are means of evading tests . Before the judge , he wanted to call Mr Walusimbi to give first - hand evidence that the plaintiff had taken drugs . This was neither pleaded nor included in the ORG material . The judge rightly excluded it and there is no application for leave to appeal against that part of the decision . The judge held that the general evidence added little or nothing to the issue of widespread drug taking . I agree , not least since I would permit Professor PERSON 's evidence to be adduced and this deals with the same topic . Further general evidence about widespread drug use by athletes does not go to establish that the plaintiff has taken drugs or that he is reasonably suspected of having done so . This again was very late evidence tendered in breach of court orders and the rules , and I consider that the judge exercised his discretion correctly to exclude it . ”", "NORP The main trial commenced on DATE , DATE . The applicant represented himself as his funds were exhausted . On DATE the jury found , by a majority of CARDINAL , that the article complained of bore the meaning that", "“ Mr Christie is a cheat who regularly used banned performance - enhancing drugs to improve his success in athletic competition . ”", "It found also that the applicant had not proved that the article as so interpreted was substantially true .", "Although Mr Christie did not seek damages , the applicant was ordered to pay the costs of the action and was made subject to an injunction", "“ ... restraining the [ applicant ] whether by himself , his servants , agents or otherwise howsoever from further publishing or causing the publication of the allegation ( express or by implication ) that the plaintiff is a cheat who has regularly used performance - enhancing drugs to improve his success in athletic competition or any words to the same or similar effect ... ”", "Following the verdict , the distributors and printers involved in the separate action reached a settlement with Mr Christie which required the payment of damages to him ( see paragraph CARDINAL above ) .", "Under LANGUAGE law the object of a libel action is to vindicate the plaintiff 's reputation and to make reparation for the injury done by the wrongful publication of defamatory statements concerning him or her . A defence of justification applies where the defamatory statement is substantially true . The burden is on the defendant to prove the truth of the statement on the balance of probabilities .", "NORP Throughout the relevant time , the allocation of civil legal aid in GPE was governed by LAW DATE . Under Schedule CARDINAL , Part II , paragraph CARDINAL , of that Act , “ proceedings wholly or partly in respect of defamation ” were excepted from the scope of the civil legal - aid scheme .", "At the relevant time , civil procedure before ORG was governed by LAW ( RSC ) . Under RSC Order DATE , Rule CARDINAL :", "“ ( CARDINAL ) The powers of the ORG under this rule shall be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it , and saving costs ...", "( CARDINAL ) At the summons for directions in an action commenced by writ the ORG shall direct every party to serve on the other parties , within DATE ( or such other period as the ORG may specify ) of the hearing of the summons and on such terms as the ORG may specify , written statements of the oral evidence which the party intends to adduce on any issues of fact to be decided at the trial . ...", "...", "( CARDINAL ) Statements served under this rule shall –", "( a ) be dated and , except for good reason ( which should be specified by letter accompanying the statement ) , be signed by the intended witness and shall include a statement by him that the contents are true to the best of his knowledge and belief ;", "...", "( CARDINAL ) Where a party is unable to obtain a written statement from an intended witness in accordance with paragraph ( CARDINAL ) , the ORG may direct the party wishing to adduce that witness 's evidence to provide the other party with the name of the witness and ( unless the ORG otherwise orders ) a statement of the nature of the evidence intended to be adduced . ...", "...", "( CARDINAL ) Subject to paragraph ( CARDINAL ) , where the party serving the statement does call such a witness at the trial –", "...", "( b ) the party may not without the consent of the other parties or the leave of the ORG adduce evidence from that witness the substance of which is not included in the statement served ...", "( CARDINAL ) Where a party fails to comply with a direction for the exchange of witness statements he shall not be entitled to adduce evidence to which the direction related without the leave of the ORG . ... ”", "Statements served under Rule CARDINALA(CARDINAL ) are commonly referred to as “ gist ” statements .", "According to the ORG , LAW , Rule CARDINAL :", "“ ( CARDINAL ) ... in respect of expert oral evidence , then , unless the ORG considers that there are special reasons for not doing so , it shall direct that the substance of the evidence be disclosed in the form of a written report or reports to such other parties and within such period as the court may specify . ”", "As in Rule CARDINAL ) in respect of witness statements ( see above ) , the court may , pursuant to a general power set out at ORG , LAW CARDINAL , grant leave to allow expert evidence to be adduced late when the order for directions has not been complied with by either party .", "In ORG v. PERSON ( ( DATE ) CARDINAL US CARDINAL ) , ORG of GPE ruled that a ORG could not , under DATE to LAW , award damages to a public official for defamatory falsehood relating to his official conduct unless he proved “ actual malice ” . This was shown where the statement concerned had been made with knowledge of its falsity or with reckless disregard as to whether it was true or false . In delivering the judgment of the court , PERSON Justice PERSON commented :", "“ ORG of the defence of truth , with the burden of proving it on the defendant , does not mean that only false speech will be deterred . Even courts accepting this defence as an adequate safeguard have recognised the difficulties of adducing legal proof that the alleged libel was true in all its factual particulars . ... Under such a rule , would - be critics of official conduct may be deterred from voicing their criticism , even though it is believed to be true and even though it is in fact true , because of doubt whether it can be proved in court or fear of the expense of having to do so . They tend to make only statements which ' steer far wider of the unlawful zone ' . ”" ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE . At the time of introduction of the application he was detained in remand prison IZ-CARDINAL/CARDINAL in GPE .", "On DATE criminal proceedings were instituted against the applicant and third persons for attempted swindling . At TIME on DATE the applicant was arrested . He was placed in the temporary detention facility of LOC of GPE .", "On DATE the ORG of GPE ( “ the trial court ” ) remanded the applicant in custody . He was transferred to remand prison IZ-CARDINAL/CARDINAL in GPE ( “ the remand prison ” ) . The court held that the applicant was charged with a serious crime , had a disposition to commit crimes and could continue to pursue criminal activities if at liberty . The ruling was not appealed against .", "On DATE the GPE ORG of GPE granted a request by the investigator to extend the applicant 's detention until DATE , holding that investigative measures could not be taken prior to that date . The ruling was not appealed against .", "On DATE ORG of GPE prolonged the applicant 's detention until DATE .", "On DATE the GPE ORG of GPE prolonged the applicant 's detention until DATE .", "On DATE the bill of indictment was drawn up and the case file was transferred to the trial court .", "On DATE the trial court scheduled a hearing for DATE . The issue of the application of a preventive measure to the applicant was not decided upon pursuant to LAW ( “ the ORG ” ) .", "At the preliminary hearing of DATE the trial court , relying on LAW ORG , returned the case to the prosecutor because certain procedural rules had not been complied with . In particular , some pages of the case file had been wrongly numbered and the accused had not been provided with the opportunity to study some documents . The trial court further noted that no application to vary the preventive measure had been lodged . The trial court found that the measure applied was lawful and appropriate in view of the gravity of the charges and the information about the accused , and ordered that it should remain unchanged . The trial court observed that the decision could be appealed against to GPE within DATE from the date of its delivery . The applicant and his counsel PERSON were present at the hearing .", "The ruling of DATE was not appealed against and became final on DATE . On DATE the case file was transmitted to the prosecutor .", "On DATE the prosecutor returned the case to the investigator for additional investigative measures . Having obtained the endorsement of GPE , the investigator requested a court to extend the applicant 's custodial detention for DATE until DATE so that the aggregate term of his detention amounted to DATE and DATE . He argued that the extension sought would allow him to take the requisite investigative measures and to comply with the trial court 's instructions .", "On DATE the Kuybyshevskiy ORG of GPE , relying on LAW ORG , granted the investigator 's request to extend the applicant 's detention for “ DATE , DATE in total , that is , until CARDINAL DATE ” . The applicant and his counsel PERSON were present at the hearing . His counsel PERSON objected , stating that the applicant had a permanent place of residence , had no intention of absconding DATE on the contrary , he had actively cooperated with the investigation – and that his state of health had worsened . The court held that the investigator 's request should be granted and that there was no reason to vary the preventive measure in respect of the applicant since the circumstances that had constituted the grounds for its application had not changed . The applicant was charged with a serious offence and had no permanent job and no assets . Furthermore , he was suspected of having committed a further offence similar to the one he had been charged with . Therefore , if released , he might abscond , hinder the criminal prosecution and engage in further criminal activity . Moreover , certain investigative measures had to be conducted before the case was sent for trial . The court also found that the arguments put forward by the applicant 's counsel concerning the applicant 's personality and his state of health were not sufficient grounds for refusing the investigator 's request . In particular , no medical documents had been provided to prove that placement in a remand prison was damaging to the applicant 's health .", "The applicant appealed against the ruling of DATE , claiming that LAW ORG did not provide for the possibility of extending a period of detention pending additional investigation .", "On an unspecified date the applicant requested ORG of GPE to declare that the prosecutor had not received the case file from the trial court as required by the ruling of DATE .", "On DATE ORG of GPE held a hearing on the complaint , during which the applicant was advised that the case file had already been sent to the prosecutor . The applicant then brought another complaint about the prosecutor 's actions CARDINAL , claiming that the latter had failed to take the requisite measures to ensure the applicant 's release from custody . The court dismissed the complaint , stating that the prosecutor 's actions were lawful , and observed that the ruling could be appealed against to GPE within DATE from the date of its delivery .", "It follows from the parties ' submissions that the applicant did not appeal against the ruling of DATE .", "On DATE the Kuybyshevskiy ORG of GPE granted a request lodged by GPE to extend the applicant 's detention for DATE to CARDINAL DATE so that the aggregate term of his detention amounted to DATE and DATE . The applicant and his counsel PERSON objected on the grounds that the court had no evidence of the applicant 's intention either to abscond or to engage in further criminal activity . The court dismissed the objections and ordered the extension of the applicant 's detention on the same grounds as those given in the ruling of CARDINAL DATE . The applicant 's counsel PERSON was a legal - aid lawyer appointed by the court . At the beginning of the hearing the applicant applied to the court to have counsel replaced because he wished to be assisted by his own counsel , PERSON , who had not been notified of the hearing . The court found that counsel PERSON had been notified by telephone of the hearing that had initially been scheduled for CARDINAL DATE . However , she had neither appeared nor provided any documents justifying her failure to do so . The hearing had then been postponed to CARDINAL DATE and counsel PERSON had been notified accordingly . However , she had said that she could not attend the hearing because she was involved in other proceedings . Nevertheless , she had failed to provide any supporting documents . The applicant appealed .", "On DATE the final bill of indictment was drawn up .", "On CARDINAL DATE the case was sent to the trial court .", "On DATE the trial court received the case file .", "On DATE the trial court scheduled a hearing for DATE . It also ordered that the preventive measure imposed on the applicant was to remain unchanged .", "On DATE GPE dismissed the applicant 's appeal against the ruling of DATE . The appeal court held that when a case was returned to the prosecutor , new time - limits for the investigation were to be fixed and a decision concerning a preventive measure was to be taken accordingly . It also upheld the first - instance court 's findings that , if released , the applicant might abscond and engage in further criminal activity .", "On DATE GPE dismissed the applicant 's appeal against the trial court 's ruling of DATE . The appeal court upheld the first - instance court 's conclusion that , if released , the applicant might abscond , engage in further criminal activity and hinder the prosecution . It also found that counsel PERSON had been duly notified of the hearing of CARDINAL DATE . However , she had not appeared and had failed to provide appropriate justification .", "On DATE GPE dismissed the applicant 's appeal against the ruling of DATE .", "On DATE the trial court sentenced the applicant to DATE and DATE imprisonment .", "On DATE the applicant 's sentence became final .", "On DATE GPE dismissed the applicant 's appeal against the decision of ORG of GPE of DATE concerning his complaint about the prosecutor 's inaction . It held , in particular , that the prosecutor had requested authorisation of the applicant 's detention for a period including DATE that had preceded the court 's ruling , that is , DATE . It rejected the applicant 's argument that his detention during that period had been unlawful , for the reason that “ there was a judicial decision extending the detention for the period from CARDINAL to CARDINAL DATE ” . No reference as to which judicial decision had authorised that period was given .", "On DATE the applicant was diagnosed with hepatitis C. He underwent treatment DATE and DATE and was subsequently diagnosed with chronic hepatitis C.", "On DATE , on his admission to remand prison IZ CARDINAL/CARDINAL , the applicant was diagnosed as HIV - positive on the basis of a routine blood test .", "According to the applicant , his state of health had been deteriorating since DATE . He had shown symptoms of immunodeficiency and there had been bad bouts of his chronic illnesses . The applicant had applied to the medical unit of the remand prison for treatment to boost his immune system . In reply , he had been advised to take aspirin , papaverine and analgesics . After the applicant had stated that this treatment would obviously be insufficient , he had been threatened with confinement in a solitary cell .", "On DATE the applicant was placed in solitary cell no . CARDINAL in wing CARDINAL with restricted access . The wing was designed for the detention of inmates sentenced to life imprisonment .", "On DATE the applicant was transferred to solitary cell no . CARDINAL in wing CARDINAL with restricted access . According to the applicant , the cell was the equivalent of a disciplinary cell . However , he had neither requested to be placed in solitary confinement , nor had there been any grounds for such placement since he had not broken prison rules . The cell was in the basement where there was no central heating , and the DATE temperature there was CARDINAL - CARDINALoC.", "On account of the conditions of detention in the solitary cell the applicant 's health had deteriorated further . He had been put on a special diet which included a supplementary DATE portion of margarine and sugar . Despite his regular requests , he had never been provided with either antiviral treatment or treatment stimulating liver function and had been offered only febrifuges and analgesics . Medical staff of the remand prison had stated that they had no medicines for HIV - positive prisoners because of lack of funding .", "The applicant requested to be placed in a hospital in DATE and DATE . However , he was refused admission to the hospital at remand prison IZ CARDINAL/CARDINAL on the grounds that there were too many ORG patients and not enough places . He was likewise refused admission to the hospital of ORG , because the hospital only treated convicted prisoners and did not have the status of a remand prison .", "NORP The applicant lodged numerous complaints concerning his inadequate medical assistance . However , he did not receive any formal replies to his complaints or a formal refusal to place him in a hospital . The replies he received were given in the course of private conversations . Nor was he provided with any documents confirming that his complaints had been forwarded to the appropriate authorities . According to the applicant , the officials of the remand prison had forwarded only his correspondence relating to his criminal case and had not provided his counsel B. with the medical documents contained in his personal file .", "While detained in IZ-CARDINAL/CARDINAL the applicant was on several occasions examined by specialist doctors and general practitioners .", "On DATE the applicant was examined by a medical commission composed of a general practitioner , a surgeon , a psychiatrist and a dermatologist . He made no complaints concerning his state of health .", "On CARDINAL DATE the applicant underwent a chest PERSON . No pathological condition was discovered .", "On DATE a blood test carried out on the applicant indicated that he was HIV - positive .", "On DATE the applicant underwent a complex medical checkup at ORG of GPE and was diagnosed with stage CARDINALБ HIV infection .", "On DATE the applicant was examined by an infectiousdisease specialist . He was also registered as HIV - positive with the IZ-CARDINAL/CARDINAL infirmary and was prescribed a special diet .", "DATE and DATE the applicant was treated by a dermatologist for an acute skin disease ( parasitical dermatitis ) and was cured .", "DATE the applicant did not request to be admitted to hospital .", "DATE . On DATE the applicant underwent a routine check - up with a general practitioner . He made no complaints concerning his state of health .", "On DATE and CARDINAL DATE the applicant underwent chest Xrays , which did not detect any pathological condition .", "On DATE and DATE the applicant was examined by a general practitioner and was found to be in a satisfactory state of health . He did not make any complaints .", "On DATE a general practitioner examined the applicant and found no medical data to confirm that the HIV infection had progressed .", "On DATE and DATE and on DATE the applicant underwent chest X - rays , which did not reveal any pathological condition .", "On DATE and DATE the applicant was examined by a general practitioner . A general blood test carried out on DATE showed no pathological changes in the blood .", "The applicant 's HIV infection had not been clinically manifested . The applicant did not require antiretroviral therapy .", "According to a certificate issued by the authorities of the remand prison on DATE , the applicant 's state of health had not deteriorated since DATE , he had not lost any weight and his lymph glands had not been dilated .", "While in ORG , the applicant was detained in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL . Cell no . CARDINAL measured QUANTITY ; each of the remaining CARDINAL cells measured QUANTITY .", "The Government could not submit information on the number of inmates who had shared cells with the applicant owing to the fact that the registration logs had been destroyed .", "Every cell in which the applicant was kept was equipped with a lavatory pan , a flush tank and a sink , which were separated from the sleeping area by a curtain . There was running hot and cold water supplied by the city water system in each cell .", "The applicant and other inmates washed themselves and had their bedding changed once DATE .", "Every cell in which the applicant was kept had access to daylight through windows ; they were also equipped with lamps . All cells had both natural and mandatory ventilation systems . The cells were equipped with tables , benches and necessary utensils . The windows were glazed and had air ducts . The cells had a central heating system connected to the remand prison 's boiler house . The average temperature in the cells was between CARDINALoC ( in DATE ) and CARDINAL ( in DATE ) .", "The applicant was at all times provided with an individual sleeping place and bedding .", "While in the remand prison , the applicant was fed CARDINAL times a day . From DATE he received a special diet . The food available to the applicant was in compliance with the relevant standards and regulations .", "The applicant was allowed to have a DATE TIME walk during which he could perform physical exercises .", "The cells were regularly cleaned and disinfected .", "On DATE the applicant was placed in cell no . CARDINAL , where he was kept in solitary confinement to secure his safety . The cell was heated by the remand prison 's boiler house .", "According to a certificate of microclimate measurement provided by the ORG , on DATE , when the outside temperature wasCARDINALoC , the level of humidity in cell no . CARDINAL amounted to PERCENT ( PERCENT being normal ) , the temperature in the cell was ORG ( CARDINALoC to CARDINALoC being normal ) and the level of lighting was CARDINAL lx ( CARDINAL lx being normal ) .", "DATE . According to a certificate of DATE issued by the remand prison authorities , microclimate measurements in the remand prison cells were taken once DATE ; the average temperature in the cells was CARDINALoC in DATE and CARDINAL in DATE .", "According to a certificate on the sanitary conditions in cell no . CARDINAL , on DATE the cell was in a satisfactory condition . It was equipped with a sink and a lavatory pan ; the sanitary installations were in order . There was hot and cold running water , natural ventilation , central heating , natural light and one light bulb . The cell measured QUANTITY ( width ) by QUANTITY ( length ) by QUANTITY ( height ) . The cell was designed to accommodate CARDINAL persons . There was a window measuring QUANTITY by QUANTITY . The cell had been renovated in DATE .", "The applicant did not lodge any complaints concerning the conditions of his detention with the remand prison authorities or with prosecutors ' offices .", "The applicant submitted written statements by Mr DATE and Mr GPE", "Mr DATE , who had been sentenced to life imprisonment , was kept in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of wing CARDINAL of the remand prison on various occasions DATE and DATE . In his submission , wing CARDINAL was reserved for inmates sentenced to life imprisonment at first instance pending the examination of their cases on appeal . The conditions of detention in all the cells were nearly identical . There were no chairs or desks in the cells . The beds were made of concrete . The cells were in a deplorable state . The humidity was high . There was no hot water or heating . The temperature in the cells in DATE was as low as outside . There was no mandatory ventilation . Lavatory pans were not separated from the rest of the cells . All inmates in wing CARDINAL were kept in solitary confinement . Access to the wing was limited . Paramedics occasionally visited the wing but claimed that they had no medication . At some point in DATE Mr TIME had a glimpse inside cell no . CARDINAL and saw that it was no different from the cells in which he had been kept , save for the fact that there was an iron bed , not a concrete one . He also repeatedly heard the applicant asking paramedics for medication .", "Mr GPE was sentenced to life imprisonment . He was kept in cell no . CARDINAL of wing CARDINAL of the remand prison . In his submission , all the cells in the wing were nearly identical . There was no furniture in the cells . The temperature in the cells in DATE was TIME There was no hot water . The cells were very humid so that the walls were covered with mould . The lavatory pans were not secluded . The food was of poor quality . Medical personnel rarely visited the wing and did not have effective medication . Mr GPE had overheard the applicant 's numerous complaints to the remand prison authorities concerning his state of health . Initially the applicant had been placed in cell no . CARDINAL and in DATE he had been transferred to cell no . CARDINAL .", "After arrest the suspect is placed in custody “ pending investigation ” . The period of detention “ pending investigation ” can not exceed DATE ( Article CARDINAL § CARDINAL ) but may be extended DATE by a judge of a district court or a military court of a corresponding level further to a request lodged by a prosecutor ( or an investigator or inquirer with a prosecutor 's prior approval ) ( LAW ) . Further extensions up to DATE may be granted on an investigator 's request approved by a prosecutor of GPE only if the person is charged with serious or particularly serious criminal offences ( LAW ) . The period of detention “ pending investigation ” is calculated up to the date on which the prosecutor sends the case to the trial court ( LAW ) .", "From the time the prosecutor sends the case to the trial court , the defendant 's detention is “ pending trial ” . The period of detention “ pending trial ” is calculated up to the date on which the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .", "DATE . The trial judge can return the case to the prosecutor for defects impeding the trial to be remedied , for instance if the judge has identified serious deficiencies in the bill of indictment or a copy of it was not served on the accused . The judge must require the prosecutor to comply within DATE ( Article CARDINAL § CARDINAL ) and must also decide on a preventive measure in respect of the accused ( Article CARDINAL § CARDINAL ) . By Federal Law no . CARDINAL of DATE , Article CARDINAL was amended to the effect that , if appropriate , the judge should extend the term of detention with due regard to the time - limits in LAW .", "HIV - positive persons have the right to receive all types of medical assistance required by clinical data . They enjoy all the rights guaranteed by laws of GPE on public health protection ( section CARDINAL ) .", "On DATE ORG of GPE adopted Ruling no . CARDINAL on a complaint lodged by a group of individuals concerning the de facto extension of detention after the transfer of a case file to a trial court by the prosecution . In part CARDINAL of the ruling ORG held :", "“ The second part of LAW provides that ... detention is permitted only on the basis of a court order ... Consequently , if the term of detention , as defined in the court order , expires , the court must decide on the extension of the detention , otherwise the accused person must be released ...", "These rules are common to all stages of criminal proceedings , and also cover the transition from CARDINAL stage to another . ... The transition of the case to another stage does not automatically put an end to a preventive measure applied at previous stages . ”", "ORG of GPE , by its Decree No . CARDINAL of CARDINAL DATE , adopted ORG to HIV - positive Persons ( “ the Standards ” ) , which were recommended for use in ORG - owned and municipal health - care institutions .", "According to the Standards , adult HIV - positive persons suffering from the disease in stages CARDINAL , CARDINALБ , CARDINAL , CARDINAL , CARDINALА , CARDINAL and CARDINAL require CDCARDINAL testing as a diagnostic measure once every twelve months .", "The CARDINALth ORG ( ORG ( DATE ) CARDINAL ) prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) concerning transmissible diseases reads , in so far as relevant , as follows :", "“ CARDINAL . The spread of transmissible diseases and , in particular , of tuberculosis , hepatitis and HIV / AIDS has become a major public health concern in a number of NORP countries ...", "... [ T]he act of depriving a person of his liberty always entails a duty of care ...", "The use of up - to - date methods for screening , the regular supply of medication ... constitute essential elements of an effective strategy ... to provide appropriate care to the prisoners concerned .", "... [ T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds . In this connection , the ORG wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV - positive . ”", "The relevant parts of the Appendix to Recommendation no . R ( CARDINAL ) CARDINAL of ORG concerning the ethical and organisational aspects of health care in prison read as follows :", "“ CARDINAL . The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medical reasons .", "No form of segregation should be envisaged in respect of persons who are HIV antibody positive , subject to the provisions contained in paragraph CARDINAL .", "Those who become seriously ill with Aids - related illnesses should be treated within the prison health care department , without necessarily resorting to total isolation . Patients , who need to be protected from the infectious illnesses transmitted by other patients , should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections ... ”", "The DATE Guidelines on HIV infection and AIDS in prisons issued by ORG ) read , in so far as relevant , as follows :", "“ CARDINAL . NORP Since segregation , isolation and restrictions on occupational activities , sports and recreation are not considered useful or relevant in the case of HIV - infected people in the community , the same attitude should be adopted towards HIV - infected prisoners . Decisions on isolation for health conditions should be taken by medical staff only , and on the same grounds as for the general public , in accordance with public health standards and regulations . Prisoners ' rights should not be restricted further than is absolutely necessary on medical grounds , and as provided for by public health standards and regulations ...", "Isolation for limited periods may be required on medical grounds for ORG prisoners suffering from pulmonary tuberculosis in an infectious stage . Protective isolation may also be required for prisoners with immunodepression related to AIDS , but should be carried out only with a prisoner 's informed consent . Decisions on the need to isolate or segregate prisoners ( including those infected with HIV ) should only be taken on medical grounds and only by health personnel , and should not be influenced by the prison administration ...", "Information regarding HIV status may only be disclosed to prison managers if the health personnel consider ... that this is warranted to ensure the safety and wellbeing of prisoners and staff ... ”", "The ORG published on DATE a document entitled “ Rapid Advice : ORG in Adults and Adolescents ” . The recommendations concerning the commencement of administering treatment are as follows . It is strongly recommended to start antiretroviral treatment in all patients with HIV who have a CDCARDINAL count of CARDINAL cells per mmCARDINAL irrespective of clinical symptoms . CDCARDINAL testing is required to identify if HIV - positive patients with WHO clinical stage CARDINAL or CARDINAL disease need to start antiretroviral treatment . Furthermore , it is strongly recommended to start antiretroviral treatment in all patients with HIV with WHO clinical stage CARDINAL or CARDINAL irrespective of CDCARDINAL count ." ]

[ "3", "5" ]

[ "5-1" ]

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[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in LOC .", "The Government of GPE ( “ the Government ” ) were represented by PERSON , their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant has thus far submitted CARDINAL applications under LAW ( see PERSON v. GPE ( dec . ) , no . CARDINAL , § CARDINAL , CARDINAL DATE with further references ) .", "On DATE the applicant brought an action ( case no . CARDINALC CARDINAL/CARDINAL ) against a private company before ORG súd ) . He argued that he had title to some forest land , which was being occupied by the defendant company , and that the latter had arbitrarily terminated a lease of that land they had previously concluded . Accordingly , the applicant sought a ruling declaring the defendant company ’s termination of the lease null and void .", "DATE and DATE the applicant requested an exemption from court fees , which was examined and dismissed at CARDINAL levels of jurisdiction . The question of court fees was subsequently examined again at CARDINAL levels of jurisdiction in connection with various procedural applications made by the applicant .", "Meanwhile , the applicant was asked to provide further and more detailed particulars of the claim and to support his claim with evidence , particularly in so far as he appeared to be seeking financial compensation in respect of unpaid rent . In response , the applicant specified that his claim amounted to the equivalent of MONEY ( ORG ) .", "In a letter of DATE , in response to a request by ORG of DATE , the applicant submitted an apology for his “ mediocre activity in [ the ] dispute , including [ his ] having missed timelimits because [ at the given time ] [ he ] was also dealing with other , far more serious matters ” .", "DATE and DATE CARDINAL hearings were listed , but the applicant excused himself from them on various grounds .", "A hearing took place on DATE . On DATE , ORG dismissed the action . It found that the applicant had not been the owner of the property at the time the lease was concluded and that the defendant company had therefore been entitled to terminate the lease .", "On DATE the ORG ( Krajský súd ) quashed the first - instance judgment following an appeal by the applicant , and remitted the matter to ORG for re - examination . It found that ORG had failed to identify the property in question and to establish whether the lease had been validly concluded .", "On DATE ORG discontinued the proceedings , on the grounds that the applicant had failed to comply with its request of CARDINAL DATE to formulate his claim properly . However , following an appeal by the applicant , that decision was quashed by ORG on DATE , and the case was remitted to ORG for a determination on the merits .", "DATE and DATE CARDINAL further hearings were listed , but the applicant excused himself from them on various grounds .", "The hearing scheduled for DATE took place despite the applicant ’s absence . On DATE , ORG dismissed the action , finding , inter alia , that the property in question had not been described properly , which meant that the lease was void ab initio .", "On DATE ORG upheld the first - instance judgment following an appeal by the applicant . The merits of the case were thereby resolved by a final and binding decision .", "The applicant brought CARDINAL complaints under LAW , challenging the length of the proceedings in his case . In both complaints , he contested exclusively the part of the proceedings which took place before FAC .", "His first complaint was lodged on DATE , but was declared inadmissible on DATE . ORG ( Ústavný súd ) concluded that he had not complied with the admissibility requirement of exhaustion of ordinary remedies . In particular , he could not be regarded as having properly asserted his complaint concerning the length of proceedings before the President of ORG prior to resorting to ORG . In that connection , ORG observed that , as a claimant , the applicant was involved in a considerable amount of litigation before ORG . His vaguely formulated complaints to the President of ORG about the length of “ all of his proceedings ” before that court , which did not identify any specific set of proceedings , could not therefore be regarded as being in compliance with the statutory exhaustion requirement .", "The second complaint was lodged on DATE , but was declared inadmissible on DATE .", "While ORG noted that the applicant had still not properly asserted his complaint before the President of ORG , it nevertheless proceeded to examine it in substance by reviewing the course of the proceedings , paying particular attention to the part before ORG , as contested by the applicant .", "ORG observed that in DATE following the bringing of the action until the applicant ’s appeal was transferred to ORG for determination , ORG had dealt with the case in a continuous and uninterrupted manner . His appeal had been pending before ORG for DATE and DATE , following which the case had been transferred to ORG for a new determination . It was at this stage that ORG established that there had been a delay of DATE on the part of ORG . However , the case was thereafter pending again before ORG for DATE , and no further delays attributable to ORG could be established .", "As for the applicant , he was found to have contributed to the length of the proceedings by having filed incomplete particulars of claim without supporting documentary evidence , and by having to be assisted by ORG in correcting the shortcomings of his submissions .", "In sum , in view of all the circumstances , the delays on the part of ORG were not sufficiently serious to constitute a situation that was contrary to the applicant ’s right to a hearing within a reasonable time . Thus , his complaint was in any event manifestly ill - founded .", "The relevant domestic law and practice are summarised in the ORG ’s judgment in the case of GPE and PERSON v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) ." ]

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[ "The applicant was born in DATE and lives in GPE ) .", "In a judgment deposited with the court 's registry on DATE , ORG made a winding - up order in respect of the applicant 's company , a beverage company , and also declared the applicant personally bankrupt .", "On DATE the trustee in bankruptcy filed a report .", "On DATE the bankruptcy judge ( “ the judge ” ) checked the statement of liabilities of the bankrupt estate and on DATE declared it judicially established ( esecutivo ) .", "On CARDINAL , CARDINAL and DATE respectively the companies ORG , ORG instituted proceedings contesting the statement of liabilities .", "At a hearing held on DATE , the judge ordered the striking out of the action brought by the company ORG as being out of time .", "On DATE the trustee in bankruptcy requested the creditors ' committee to give its opinion on the possible sale of CARDINAL lorries in very poor condition which were listed in the statement of assets .", "On DATE the ORG in bankruptcy requested the judge to declare the lorries unfit for sale ( illiquidabili ) so that the proceedings could be terminated .", "On DATE the ORG in bankruptcy filed the revenue and expenditure account , which the judge approved on DATE .", "By a decision deposited with the registry on DATE , the judge terminated the bankruptcy proceedings for lack of any further assets to distribute .", "The decision was posted in ORG on DATE . It became final on DATE .", "LAW ( Royal Decree no . CARDINAL of DATE ) provides , inter alia :", "“ An appeal shall lie against the decisions of the bankruptcy judge ... to the district court within DATE of their adoption , and may be lodged by the trustee in bankruptcy , the bankrupt , the creditors ' committee or any other person with an interest .", "The district court shall deliberate in private and give a reasoned decision .", "The appeal shall not have suspensive effect in relation to the impugned decision . ”", "“ An appeal shall lie against measures taken by the ORG in bankruptcy . Such appeals may be lodged by the bankrupt , or any other person with an interest , with the bankruptcy judge , who shall give a reasoned decision .", "An appeal against that decision may be lodged within DATE with the district court . That court shall give a reasoned decision after hearing evidence from the trustee in bankruptcy and the appellant . ”", "“ The bankruptcy order shall divest the bankrupt of the rights to administer or to deal with assets that were in existence at the date of the said order . ... ”", "“ Correspondence addressed to the bankrupt shall be passed to the ORG in bankruptcy , who shall be empowered to retain correspondence concerning property interests . The bankrupt may consult the correspondence . The ORG in bankruptcy shall keep the content of correspondence not relating to such interests confidential . ”", "“ The bankrupt may not leave his place of residence without the authorisation of the bankruptcy judge and must report to that judge , the ORG in bankruptcy or the creditors ' committee each time he is duly summoned , except where he is unable to appear on legitimate grounds and the judge gives him leave to send a representative .", "If the bankrupt fails to comply with a summons , the judge may order that he be brought by the police . ”", "“ A public register of the names of bankrupts shall be held at the registry of each district court . Names shall be deleted from the register by order of the district court . A bankrupt shall be subject to the restrictions laid down by law until such time as his name is deleted from the register . ”", "“ The bankruptcy proceedings shall be terminated by means of a reasoned decision of the court ...", "An appeal against that decision may be lodged with the court of appeal within DATE of its being posted in the court ... ”", "“ Rehabilitation may be granted to bankrupts who", "have paid in full the debts included in the bankruptcy , including interest and expenses ;", "have complied with the terms of the composition with creditors if the court considers them eligible for such a measure , taking into account the causes and circumstances of the bankruptcy , the terms of the composition and the percentage agreed . Rehabilitation may not be granted in cases where the percentage agreed for unsecured creditors is below PERCENT ... ;", "have shown proof of effective and consistent good conduct for DATE following the end of the bankruptcy proceedings . ”", "LAW ( a ) of Presidential Decree no . CARDINAL of DATE , as amended by PERSON no . CARDINAL of DATE , provides essentially for the suspension of the bankrupt 's electoral rights for the duration of the bankruptcy proceedings and , in any event , for a period not exceeding DATE from the date of the bankruptcy order .", "Legislative Decree ( decreto legislativo ) no . CARDINAL of DATE on the reform of LAW provides , inter alia , as follows :", "“ LAW no . CARDINAL of DATE is hereby replaced by the following :", "' LAW ( correspondence addressed to bankrupts ) : Entrepreneurs who are declared bankrupt and the directors or liquidators of companies or corporations which are the subject of bankruptcy proceedings shall be required to hand over to the trustee in bankruptcy all correspondence , and in particular electronic correspondence , concerning property interests [ rapporti ] included in the bankruptcy . ' ”", "“ LAW no . CARDINAL of DATE is hereby replaced by the following :", "' DATE ( obligations of bankrupts ) : Entrepreneurs who are declared bankrupt and the directors or liquidators of companies or corporations which are the subject of bankruptcy proceedings shall be required to inform the trustee in bankruptcy of any change of residence or address .", "Where information or clarification is needed for the conduct of the proceedings , the above - mentioned individuals must report in person to the bankruptcy judge , the trustee in bankruptcy or the creditors ' committee .", "If they are unable to do so , the judge may give leave to the entrepreneur or the legal representative of the company or corporation which is the subject of the bankruptcy proceedings to send a representative . ' ”", "“ LAW no . CARDINAL of DATE is hereby repealed . ”", "“ The following provisions are hereby repealed :", "( a ) LAW ( a ) ... of Presidential Decree no . CARDINAL of DATE ;", "... ”", "According to legal commentators , the institution of bankruptcy has its origins in DATE ) , an era when merchants ( in the broad sense , encompassing traders , entrepreneurs and bankers ) formed the nucleus of a new social class . In this context , in which the public interest coincided at times with the interests of the merchant class , bankruptcy was designed to impose stringent measures on insolvent merchants . Hence , bankruptcy was subject to criminal penalties ( such as banishment , arrest and , in some cases , torture or death ) or civil penalties such as the entry of the bankrupt 's name in a register , forcing bankrupts to wear distinguishing marks ( such as a green beret ) , loss of citizenship , and other restrictions ( see PERSON , FAC , il fallimento , PERSON , DATE , p. CARDINAL ; PERSON and PERSON , Manuale di diritto fallimentare , ORG , pp . CARDINAL - CARDINAL and DATE ; and PERSON , PERSON , PERSON , GPE , DATE , p. CARDINAL ) ." ]

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

[ "8-1", "P1-3" ]

[]

[ "8", "P1", "P4" ]

[ "8-1", "P1-1", "P4-2" ]

[ "P1-1-1", "P4-2-1" ]

[ "The applicant was born in DATE and lives in GPE . Until DATE she lived in LOC , attached to LOC in the province of ORG . She left and has never returned to the village after the events alleged below .", "The facts surrounding the destruction of the applicant 's house and property are in dispute between the parties .", "Before the alleged incident , the village of GPE had been subjected to attacks by the security forces , who had forced the villagers to become village guards .", "On DATE ORG members attacked and burned a bus on the ORG , QUANTITY from LOC .", "On DATE at TIME security forces , led by ORG Commander PERSON , entered the village and surrounded it with armoured military vehicles and unmarked cars . Thereafter , soldiers using GCARDINAL weapons and other fire arms opened fire on the village and destroyed some of the houses with mortar shells . This attack lasted TIME .", "At TIME masked men with white oil drums began burning the houses in the village . The applicant 's house and possessions were also burned during the incident . All the villagers were gathered in the village square and beaten by the soldiers . PERSON , the applicant 's brother - in - law , was killed during the incident .", "After the incident , the applicant left DATE and moved to GPE and subsequently to GPE . On DATE she filed a complaint with the GPE public prosecutor for the attention of the ORG public prosecutor 's office . She alleged that on DATE security forces had raided the village of GPE and burned down her house and belongings .", "While she was living in GPE , on DATE the applicant 's house was raided by the police . As a result of the intimidation to which she was subjected in GPE , the applicant had to move to GPE .", "The Government submitted in the first place that the village of GPE had been under constant threat from ORG members , who forced the villagers to provide them with food and supplies . Young villagers were also forced to join the ORG . However , the villagers resisted the pressures brought to bear on them .", "In their observations , the Government disputed the facts as submitted by the applicant . They stated that no military operation had been conducted in the village of DATE . In this connection , they maintained that on DATE , at TIME , a bus and a truck had been attacked and burned by the ORG on the ORG , QUANTITY from LOC . After this attack , ORG members escaped and entered the applicant 's village . The terrorists raided the village , killed PERSON , and burned down some of the houses . This attack lasted until TIME of the following day .", "On TIME , an on - site investigation was conducted in the village by the non - commissioned gendarme officer , PERSON . In his incident report , PERSON noted that the houses of PERSON , PERSON , PERSON , PERSON , PERSON and PERSON , and the harvest of PERSON , PERSON , PERSON , PERSON , PERSON and ORG had been burned by the ORG . The report further noted that PERSON had been shot dead by members of this illegal group . The security forces found CARDINAL cartridge and CARDINAL empty cartridges , CARDINAL of which were near PERSON body . The non - commissioned officer further drew a sketch of the houses which had been burned down DATE . The Government emphasised that the applicant 's house was not among the houses which had been burned down on DATE .", "Further to this incident , the ORG public prosecutor commenced an investigation into the destruction of the CARDINAL houses and the killing of PERSON . On DATE the ORG public prosecutor delivered a decision of non - jurisdiction and transferred the file to ORG . On DATE PERSON , PERSON , PERSON and PERSON , who used to reside in LOC before DATE , gave statements to the gendarme . They said that they had left the village in DATE due to pressure from the terrorist organisation . The proceedings are still pending before ORG as the perpetrators of the crime remain unknown .", "When the applicant filed a complaint concerning the destruction of her house and possessions by the security forces on DATE , the authorities undertook a further investigation into her allegations . On DATE the ORG public prosecutor declared that he was not competent for reasons of jurisdiction and transferred the file to the ORG public prosecutor 's office at ORG . On DATE ORG declined jurisdiction and sent the file back to the ORG public prosecutor . On DATE the ORG public prosecutor delivered another non - jurisdiction decision and transmitted the case file to the ORG office , pursuant to the PERSON on the Prosecution of Civil Servants .", "Upon receipt of the file , ORG immediately commenced an investigation and appointed Mr PERSON , a gendarme officer , to investigate the allegations against the security forces .", "Mr PERSON took CARDINAL statements from CARDINAL different persons , namely PERSON ( mayor of LOC ) , PERSON ( mayor of the GPE village ) , PERSON , PERSON , PERSON ( gendarme officers ) , PERSON , PERSON , PERSON and PERSON ( villagers from GPE ) . The applicant 's statement was also taken by the police . In her statement she mainly reiterated her complaint lodged with the public prosecutor .", "On DATE the investigator conducted an on - site inspection in GPE together with the village mayor . The village mayor informed him that the applicant had already left the village when her house was burned by the ORG in DATE . In his report , the investigator indicated that there were no signs of mortar or gunfire on the remains of the houses . He concluded that the houses had been burned down by the ORG to punish the villagers for abandoning the village in DATE . Some of the houses were further damaged on account of bad weather .", "NORP The investigator inquired from the relevant military commanders whether a military operation had been conducted in LOC on DATE . On DATE the ORG Commander informed the ORG that no military operation had been conducted in the village on DATE . However , he indicated that a bus had been burned near LOC on DATE . He further maintained that as the accused gendarme commander , PERSON , had retired from the military , his address could not be established and it was therefore impossible to take his statement . ORG and ORG further stated , on DATE respectively , that they had not been involved in an operation in LOC on DATE .", "In the light of the evidence before him , the investigator concluded that the applicant 's house had not been burned down by the security forces as alleged , but by the ORG after the villagers had evacuated the village in DATE . In a report dated DATE , he advised ORG to discontinue the proceedings against the security forces . On DATE the Governor of ORG approved the conclusion of the investigator and ordered that the procedure against the security forces be terminated .", "The Government finally submitted that the applicant 's husband owned CARDINAL plots of land totalling QUANTITY in LOC . They further contended that the applicant had only one cow , which she had sold to PERSON , a villager from a neighbouring village , before she left GPE .", "In her petition , the applicant complained of the killing of her brother - in - law , PERSON , and the destruction of her house and possessions by the security forces .", "According to the copies of the title deeds , submitted to the ORG , the applicant 's husband , PERSON , owns CARDINAL plots of land in the village of GPE .", "On DATE the ORG public prosecutor delivered a non - jurisdiction decision and sent the case file on the killing of PERSON and the burning of QUANTITY houses in the village of GPE to the office of the chief public prosecutor attached to ORG . In the decision , it was stated that on TIME DATE unidentified ORG terrorists had attacked the GPE , killed PERSON and burned down the houses and harvest of ORG , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON .", "On DATE the ORG public prosecutor took a decision not to prosecute and transferred the case file to the office of the public prosecutor attached to ORG , as the complaint fell within the jurisdiction of that court , pursuant to ORG . CARDINAL and ORG .", "On DATE ORG public prosecutor remitted the case to the ORG public prosecutor on the ground that he lacked jurisdiction to examine this complaint .", "On DATE the ORG public prosecutor delivered a non - jurisdiction decision and sent the file to the ORG office pursuant to the PERSON on the Prosecution of Civil Servants .", "On DATE a gendarme officer , PERSON , was appointed as investigator by ORG .", "In his statement the witness explained that he had lived in LOC until DATE and had been the village mayor for DATE . According to the witness , ORG members had been coming to Düzcealan to spread propaganda and ask for food , clothes and shelter . They also tried to persuade the young villagers to join the ORG . The witness recalled that the terrorists had conducted a raid in GPE on TIME , killed PERSON and burned down the houses and harvest of the villagers . He emphasised , however , that the applicant 's house had not been burned down on DATE . It was burned down by the terrorists after the villagers had abandoned the village . The villagers left GPE of their own free will . The security forces never forced the villagers to abandon their homes . The village was therefore empty when PERSON house was burned down .", "In his statements the witness reiterated that he had been the mayor of the GPE village , a neighbouring village of GPE . He recalled that following the incidents that took place on DATE , he heard that PERSON from LOC had been killed and that the houses of PERSON , ORG , PERSON , PERSON , PERSON , PERSON , and the harvest of PERSON , PERSON , PERSON , PERSON and ORG had been burned down by the terrorists . Due to ORG pressure , the villagers decided to evacuate the village in DATE . Before leaving , they sold their animals in neighbouring villages . The applicant 's husband sold his cow to PERSON from the GPE village . When the villagers left , ORG members burned down the remaining houses , including the applicant 's . The witness concluded that PERSON house was burned down in DATE by the ORG after the village had already been evacuated .", "The witness is a gendarme officer , who used to live in LOC until DATE . After his family left DATE , the witness never returned to the village and stated that he had no knowledge of the alleged incidents .", "The witness was the gendarmerie commander in PERSON attached to ORG in the NORP province DATE . The Düzcealan village was among the CARDINAL villages in the region that were attached to his command . He stated that he did not remember the exact date of the incident . On DATE of the incident , terrorists attacked a bus on the ORG , which is QUANTITY from LOC . The terrorists burned the bus and tried to escape through LOC , setting fire to CARDINAL or CARDINAL places in the village . DATE , at TIME , the witness went to the scene of the incident with a security team , and drafted a sketch of the bus and of the houses . PERSON was the ORG Commander at the time of the events . He was informed about the events via wireless . The villagers in GPE abandoned their village of their own free will due to pressure from the terrorists .", "In a letter dated DATE , ORG indicated that their ORG had not been involved in any operation in LOC on DATE .", "The Tatvan Security Directorate concluded that their ORG had not been involved in an operation in LOC on DATE .", "In this letter , the ORG Commander informed the PERSON Governor that no military operation had been conducted in LOC on DATE .", "In a letter dated DATE the ORG Commander informed the LOC Commander that on DATE a bus had been burned by the ORG . He indicated that there were no military records indicating that a possible military operation had been conducted in the village of Düzcealan on the same date .", "On DATE the investigator PERSON conducted an on - site visit to the village of Düzcealan together with the mayor of PERSON . In his report , he concluded that there were CARDINAL households in the village and that the village had been completely evacuated . The houses , which were made of concrete , had been badly damaged or were in ruin due to disuse and the effect of bad weather . There were no signs of a mortar attack .", "Referring to the statements of the villagers , gendarme officers , the relevant military reports and documents , the investigator concluded that the LOC found that the village was in fact raided by the NORP on TIME . However , it was clear from the testimonies of the villagers that the applicant 's house was not destroyed DATE . From the evidence before him , the investigator found that the applicant had in fact stayed in the village until DATE , when the villagers evacuated GPE to escape the pressure from ORG members . The applicant sold her cow to a certain PERSON from the GPE and moved out before her house was burned down by the ORG . When the village was evacuated , they burned down all the houses . There was no pressure from the security forces to evacuate the village .", "Referring to the investigation report prepared by gendarme officer PERSON , the Head of ORG recommended the Governor to discontinue the proceedings against the security forces .", "On DATE the Bitlis Governor decided that the proceedings against the security forces should be dismissed .", "In his statement , the witness explained that he had been living in NORP hamlet of LOC until DATE . He stated that the village of GPE and its hamlets had been evacuated by the villagers of their own free will as they wanted to escape from the pressure exerted on them by the ORG . After the village was evacuated , the ORG burned down all the houses .", "In the sketch , drafted by the gendarme officer PERSON , the locations of the QUANTITY houses which had been burned down on DATE were indicated .", "In the report , prepared by gendarme officer PERSON , it was noted that on DATE , at TIME , a bus with the registration number CARDINAL JYL CARDINAL was burned by ORG terrorists . The terrorists then escaped to the NORP village and burned down the houses of PERSON , ORG , PERSON , PERSON , PERSON and PERSON , and the harvest of PERSON , PERSON , PERSON , PERSON and ORG . They also killed PERSON .", "In this report , it was noted that a bus had been burned on DATE . This was followed by the killing of PERSON and the burning down of some houses in LOC . It was , however , established that no military records existed indicating that a military operation had been conducted in GPE on DATE . The Commander further noted that as PERSON , the accused gendarme commander , had retired from military forces , his address could not be established , with the result that no statement could be taken from him .", "In his statement , the witness deposed that he used to reside in NORP hamlet attached to LOC . He explained that all the villagers evacuated the village and the hamlet in DATE due to the activities of the ORG . ORG members had been asking the villagers to supply them with food , clothes and weapons . They also wanted to persuade the children to go to the mountains . According to the witness , the security forces never forced the villagers to abandon the village . The villagers left of their own motion due to ORG pressure . The houses were burned down subsequently by ORG members after the village had been evacuated .", "The witness used to live in LOC until DATE . He recalled that , on TIME , ORG members raided the village , burning down the houses of PERSON , ORG , PERSON , PERSON , PERSON and PERSON , and the harvest of PERSON , PERSON , PERSON , PERSON and ORG . PERSON , a villager , was also killed by ORG members . The ORG pressurised the villagers and demanded logistic support . In order to escape this intimidation , the witness left the village in DATE , together with all the villagers of GPE . He explained that PERSON had also lived in the village until DATE . He recalled that , before leaving , she had sold her cow to PERSON from the GPE village .", "In her statement , dated DATE , the applicant mainly reiterated the complaints she had made to the public prosecutor .", "The witness used to reside in the village of GPE . Following the burning of a bus on the Tatvan - Van highway , a clash broke out between the security forces and ORG terrorists . The terrorists entered LOC . They killed PERSON , burned down the houses of PERSON , ORG , PERSON , PERSON , PERSON and PERSON , and the harvest of PERSON , PERSON , PERSON and ORG . The witness stated that his crops were burned down by ORG members .", "The witness , who used to live in LOC , stated that on DATE at TIME a bus had been burned by the ORG on the ORG . Subsequently a clash broke out between the security forces and ORG members . The ORG members escaped to the village of Düzcealan . When they arrived in the village , they burned and destroyed his house and harvest . The houses of LOC , PERSON , PERSON , PERSON and PERSON , and the harvest of PERSON , PERSON , PERSON and ORG were also destroyed . Moreover , they killed PERSON .", "A full description of the relevant domestic law may be found in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . GPE , § § DATE , DATE ) ." ]

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[ "13", "14", "3", "5", "8" ]

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