Datasets:

---

jonathanli

/

echr

like 0

[ "The applicants were born in DATE and DATE respectively and live in GPE .", "On DATE ORG was informed that a poster with a bomb had been hung over FAC . Following their arrival at the bridge , the police found a cloth - poster of QUANTITY on which it was written “ We have and will demand the account of GPE , ORG ” , ( PERSON hesabını sorduk , soracağız , ORG ) . According to the police report , the box looked as if it contained a bomb . However , it did not .", "On DATE the first applicant was arrested and taken into police custody on suspicion of her involvement in the hanging of the poster . On DATE she was brought before the public prosecutor ’s office at ORG and before ORG . The court remanded her in custody .", "On DATE the second applicant was arrested and taken into police custody on suspicion of his involvement in the above - mentioned incident . On DATE he was brought to the public prosecutor ’s office at ORG and before GPE ORG . The court remanded him in custody .", "On DATE and DATE respectively , the public prosecutor at ORG filed a bill of indictment with that court accusing the applicants of aiding and abetting an illegal organisation , namely the ORG . The public prosecutor requested that the applicants be convicted and sentenced under LAW and LAW no . ORG .", "On DATE ORG commenced the trial of the first applicant together with other co - accused .", "On an unspecified date , the first and second applicants’ case files were joined and they were tried before ORG along with CARDINAL other suspects accused of the same offence .", "On DATE ORG , relying on the statements given by the applicants and the other suspects to the police , the public prosecutor and the court , convicted the applicants as charged and sentenced them to DATE and QUANTITY months’ imprisonment .", "Following a hearing held on DATE , ORG dismissed the ORG appeal and upheld the judgment of ORG . On DATE the judgment of ORG was deposited with the registry of ORG .", "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 ) ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicants , PERSON GPE , Mr PERSON , Mr PERSON and PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively . The first CARDINAL applicants live in FAC and the fourth applicant lives in GPE . The applicants were represented before the Court by PERSON , a lawyer practising in GPE .", "The ancestors of the applicants owned a plot of land and a CARDINAL - storey building in ORG . A portion of that property was expropriated in DATE . However , in practice the whole property was taken and allocated for use by the ORG enterprise T.", "CARDINAL additional storeys to the expropriated building were constructed by the ORG in DATE and DATE respectively .", "In DATE , following the demise of the communist regime , ORG was transformed into a ORG - owned limited liability company . Pursuant to the legislation in force at the time , it acquired ownership of the CARDINAL additional storeys previously allocated for its use .", "On an unspecified date after the adoption of legislation in GPE in DATE which provided for the restoration of titles to certain types of expropriated property , the applicants obtained restitution of the land and the first CARDINAL storeys of the building .", "In DATE the first , second and third applicants brought a rei vindicatio claim against the company ORG and the ORG . They argued that they had become coowners of the CARDINAL storeys constructed after the expropriation , as only parts of the building had been expropriated from their ancestors . As their ancestors had never consented to another person constructing and becoming owner of the QUANTITY new storeys , the ORG could not have acquired the entire property .", "The claim was examined at CARDINAL levels of jurisdiction and dismissed in a final judgment of ORG of DATE . The domestic courts found that the CARDINAL additional storeys could not be subject to restitution under the denationalisation legislation , because they had never been expropriated . Furthermore , even if the applicants’ ancestors had remained co - owners of the property , parts of which had been expropriated , and had thus become co - owners of the QUANTITY additional storeys , their rights had been extinguished and the ORG had acquired full ownership of these storeys through adverse possession , once the applicable DATE statutory period had expired . The provisions of the restitution legislation , relied on by DATE applicants , stating that the rules on adverse possession did not apply to expropriated property , were not applicable in the case ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants were born respectively in DATE , DATE , DATE and DATE and are currently residing in GPE . The first applicant is a professor , the second one is an accountant , the third one is a lawyer and the fourth one is a doctor .", "In DATE and DATE the applicants were members of ORG ( “ giunta municipale di Benevento ” ) . On DATE ORG informed the applicants that criminal proceedings had been instituted against them for abuse of power and misconduct in office .", "On DATE and CARDINAL DATE and CARDINAL DATE , ORG requested the investigating judge to prolong the maximum period for the duration of the investigations .", "On DATE ORG requested that the applicants and CARDINAL other persons be committed for trial on the above - mentioned charges . The preliminary hearing , scheduled for DATE , was adjourned on CARDINAL occasions because the lawyers of ORG were on strike and eventually took place on DATE . On the latter date and on DATE some of the accused were examined . The proceedings were adjourned until DATE .", "After QUANTITY hearings , on DATE , the investigating judge ordered a stay of proceedings pending a ORG judgment concerning a procedural issue which he considered to be relevant to the present case . In a judgment of DATE , filed with the registry on DATE , ORG declared that this issue was manifestly ill - founded .", "NORP On DATE the case was assigned to another investigating judge . The preliminary hearing was scheduled for DATE . On DATE the parties presented their final submissions .", "In a judgment of DATE , filed with the registry on DATE , the ORG investigating judge decided to drop all the charges against the applicants . This decision became final on DATE ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicants were born in DATE , DATE , DATE , DATE and DATE . They all live in GPE .", "On DATE ORG recognised the applicants’ inherited property title to a plot of land measuring QUANTITY m. It further decided that the applicants would be compensated in CARDINAL of the ways provided for by law .", "The applicants sent various letters to the ORG in DATE and DATE about the issue of compensation but did not receive an official response .", "On DATE the ORG informed the applicants that it was in the process of determining the property valuation maps and allocating the appropriate funds . The outcome would pave the way for the establishment of the criteria for compensation claims .", "On DATE the ORG ’s director decided proprio motu to verify the lawfulness of the DATE ORG decision . To date , no other decision has been taken and the DATE Commission decision continues to remain unenforced .", "The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE . They all live in GPE .", "On DATE ORG recognised the ORG inherited title to a plot of land measuring QUANTITY . m , out of which QUANTITY . m were restored . The applicants would be compensated for the remaining CARDINAL sq . m in CARDINAL of the ways provided for by law .", "On an unspecified date the applicants challenged the Commission decision before the court , claiming that a larger area should be restored to them .", "On DATE ORG decided that an additional plot of QUANTITY . m should be restored to the applicants . Consequently , a total area of CARDINAL sq . m was restored to the applicants .", "NORP However , to date they have not been provided with compensation in respect of the remainder of the property ( QUANTITY . m ) .", "The applicants were born in DATE , DATE , DATE , DATE , DATE and DATE . They all live in GPE .", "On DATE ORG recognised the applicants’ inherited title to a plot of land measuring QUANTITY m. It decided that , since the plot of land was occupied , the applicants would be compensated in CARDINAL of the ways provided for by law . To date , the applicants have not been provided with any compensation .", "On DATE ORG recognised the ORG inherited title over an agricultural plot of land measuring CARDINAL sq . m. It decided that the applicants would be compensated in ORG bonds in the amount of CARDINAL NORP leks ( “ ALL ” ) . To date , the applicants have not been awarded any ORG bonds or any other form of compensation .", "The Government submitted that in DATE the applicants applied for and received compensation in the amount of ALL CARDINAL in respect of CARDINAL sq . m from ORG ( “ ORG ” ) . No supporting document was submitted .", "The applicant was born in DATE and lives in GPE .", "On DATE ORG recognised the applicant ’s inherited title to CARDINAL plots of land measuring QUANTITY m and QUANTITY m , respectively . It further decided that , since the plots of land were occupied , the applicant would be compensated in CARDINAL of the ways provided for by law . The Commission recognised the applicant ’s right to first refusal of CARDINAL buildings located on the land .", "On DATE the Commission recognised the applicant ’s inherited title to another plot of land measuring QUANTITY . m , of which QUANTITY . m were restored . It decided that , since CARDINAL sq . m were occupied , the applicant would be compensated in CARDINAL of the ways provided for by law .", "On an unspecified date the applicant lodged a claim for compensation with the Agency in respect of the Commission decision of DATE .", "On DATE the ORG dismissed the claim for compensation on the ground that the applicant had already benefited from the restitution of a plot of land measuring QUANTITY m. No appeal was lodged with ORG within the statutory CARDINAL days’ period .", "The relevant provisions of LAW have been described , inter alia , in the judgment of ORG . v. GPE , no . CARDINAL , § DATE , DATE .", "The first law on property restitution and compensation was enacted in DATE ( Law no . CARDINAL of DATE – “ the DATE LAW ” , as amended ) . LAW has been described in detail in the judgments of ORG and Others v. GPE , no . CARDINAL , § § DATE , DATE , ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE , ORG and Others v. GPE , no . CARDINAL , § § CARDINAL , CARDINAL DATE . The DATE LAW was repealed by DATE Property Act .", "The DATE LAW aimed at the restitution of urban , immovable property , which had been expropriated , nationalised or confiscated prior to CARDINAL DATE . In the impossibility of restoring the original property , it provided for the grant of compensation ( sections CARDINAL , CARDINAL , DATE and DATE ) .", "Under LAW compensation was to be determined on the basis of the property ’s market value . LAW , as amended , provided for CARDINAL forms of compensation : ( a ) property of the same kind ; ( b ) public property located in tourist areas ; ( c ) property of any other kind ; ( d ) shares in ORG - owned companies ; ( e ) the value of a ORG - owned property in the course of privatisation , and ( f ) a sum of money corresponding to the value attributed to the property at the time of the decision ( LAW as amended ) .", "The DATE LAW initially instituted local Commissions , whose decisions were amenable to appeal to ORG ( sections DATE ) . In DATE those institutions were replaced by ORG ( “ the NORP ” ) and its regional offices . Decisions of regional Agency offices were open to appeal before the central ORG . ORG offices were subsequently abolished . At present , the ORG is the sole administrative body competent to decide on restitution and compensation claims .", "Section CARDINAL of the CARDINAL Act provided for the establishment of a tenyear ORG , whose aim was to provide financial compensation . It further recognised the former owner ’s right to receive default interest covering the period running from the recognition of the property right until the award of the financial compensation , calculated at the DATE median interest rate of ORG . LAW , as amended , provided for the establishment of the In - kind ORG ( “ NORP ” ) .", "The DATE LAW has been amended CARDINAL times DATE ; deadlines have been repeatedly extended . It has been described in further detail in NORP v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE and in Çaush PERSON v. GPE , no . CARDINAL , § § DATE , DATE .", "Statistics concerning the property restitution and compensation process , as provided for by the ORG , are annexed to this judgment .", "In the context of the review of the constitutionality of the legislation after its entry into force , ORG has been called upon , on several occasions , to rule on whether some of the DATE LAW provisions were compatible with the LAW .", "In decisions ORG . CARDINAL of CARDINAL DATE and CARDINAL of DATE ORG repealed as incompatible with the LAW a number of the LAW provisions , as amended , which empowered the central ORG ’s director to re - examine , annul and repeal ex officio Commission decisions . Having regard , inter alia , to this ORG ’s judgments in the cases of ORG , cited above , and GPE v. GPE ( ( no . CARDINAL ) ( no . CARDINAL , DATE ) ) , ORG reaffirmed that “ Commission decisions were capable of conferring on individuals legal expectations equal to that created by virtue of a court decision which recognises an individual ’s property rights ” . Consequently , those decisions , which were not administrative acts within the meaning of that legal notion , were directly amenable to judicial review . Moreover , since such decisions had become “ final and enforceable ” , they could not be subject to review by the ORG ’s director , who did “ not embody the characteristics of a judicial body or quasi judicial body ” .", "The Constitutional Court ’s Act ( law no . DATE of DATE ) provides that its decision is erga omnes and binding ( section CARDINAL § CARDINAL ) . The decision enters into force on the date of its publication in ORG , save as decided otherwise ( section CARDINAL ) . As a general rule , ORG decision , which repealed an act as incompatible with the LAW or international agreements , produces effect from its date of entry into force ( section CARDINAL § CARDINAL ) . The decision applies retrospectively only : ( a ) in respect of a criminal punishment even while it is being executed , if it is directly connected with the implementation of the repealed act ; ( b ) in respect of cases that are being examined by domestic courts , as long as no final decision has been taken ; and ( c ) in respect of consequences , yet to be produced , of the repealed act .", "Pursuant to the DATE LAW , as amended , the Government have adopted a number of by - laws , by way of ORG ( “ CMDs ” ) as described below .", "DATE and DATE the authorities issued CARDINAL CMDs in respect of the award of financial compensation to former owners ( see PERSON , cited above , § § DATE ) . In DATE financial compensation was awarded in respect of compensation claims arising out of ORG decisions . In DATE financial compensation was awarded in respect of compensation claims arising out of the decisions of the GPE and ORG . In DATE the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued . In DATE , DATE and DATE all former owners , who were entitled to compensation , following a ORG regional Agency decision , were eligible to apply for financial compensation . It would appear that no decision was adopted in DATE .", "According to the CMDs adopted DATE , a claimant , whose right to compensation had been recognised in respect of the entire property , was required to lodge a standard application for financial compensation with the central Agency in GPE , furnishing , inter alia , the GPE / regional Agency decision that recognised his right to compensation . The DATE ORG further provided that a former owner was entitled to financial compensation on the condition that s / he had not benefited from : a ) previous compensation ; b ) partial restoration / restitution of the property ; c ) the right to first refusal ; d ) the implementation of the LAW on the Distribution of Land ( Law no . DATE of DATE ) . The DATE ORG stated that a claimant , holding a final and enforceable decision , in respect of which no compensation had ever been awarded , was entitled to benefit from the award of compensation .", "Applications would be examined in chronological order on the basis of the ORG / regional ORG decision date and number . The amount of financial compensation , which was to be calculated on the basis of property valuation maps , was limited to a maximum of CARDINAL sq . m during the period DATE . The DATE ORG established a tiered system according to which the amount of compensation was to be as follows : ( a ) the equivalent of QUANTITY . m in respect of properties measuring up to QUANTITY m ; ( b ) the equivalent of QUANTITY m in respect of properties measuring CARDINAL sq . m ; ( c ) the equivalent of QUANTITY . m in respect of properties measuring CARDINAL sq . m ; ( d ) the equivalent of QUANTITY m in respect of properties measuring CARDINAL sq . m ; ( e ) the equivalent of QUANTITY . m in respect of properties measuring above QUANTITY . m.", "The lodging of an application entailed the payment of a processing fee . Claimants who had been unsuccessful in their application for financial compensation in DATE were to re - submit their application in the following year(s ) once they had paid the processing fee . The DATE ORG dispensed claimants from re - paying the processing fee in the event they re - submitted their claim for compensation .", "DATE the Government approved and issued property valuation maps , which included the reference price per square QUANTITY throughout the country ( see PERSON , cited above , § § DATE ) . These maps are relied upon to calculate the value of expropriated properties and subsequently the amount of financial compensation to be awarded ( compare with paragraph CARDINAL above ) .", "The DATE LAW , as amended , provided for the establishment of the IkCF ( see paragraph CARDINAL above ) . DATE the Government have adopted a number of CMDs on the procedures for the allocation of properties covered by the IkCF ( see PERSON , cited above , § § DATE ) .", "In decision no . CARDINAL of DATE ORG approved an ORG to address the issues identified by this ORG in its ORG and ORG and Others judgments . ORG attributed the non - enforcement of final decisions to the following :", "“ ... the issues faced to date relate to the lack of inter - institutional coordination concerning the exchange of information and the inter - operability of archives of those institution ( ... ) . The property legislation is fragmented and needs to be consolidated and simplified in order to provide for simple and transparent compensation procedures . The nationwide process of the first registration of immovable properties has yet to be concluded . There is no unified , national , property map . The ORG lacks a unified database of decisions ( ... ) . The process of legalisation has yet to be completed and the identification of properties that would become part of the In - kind ORG has not finished .", "` ... the [ Government ] having regard to the legitimate expectations of owners for DATE , expresses their intention to provide the compensation amount at MONEY . ”", "The Action Plan described CARDINAL schemes of compensation .", "The transitional compensation scheme ( skema kalimtare ) would apply in DATE ( see paragraph CARDINAL above for more details ) .", "The final compensation scheme ( skema definitive ) would become operational in DATE , upon the estimation of the total financial bill . The final scheme would rely on digital cartographic and juridical data as produced by ORG . A claimant possessing a final , enforceable decision would have to submit an application form to apply for compensation . The registration of the submitted application form into an electronic database would be in chronological order on the basis of ORG decision date . A claimant holding CARDINAL final , enforceable decision shall have them ranked chronologically . The compensation amount would be paid in full and in instalments .", "The authorities would retain discretion as regards the type of compensation to be awarded . Claimants would not have the right to choose CARDINAL type of compensation over another . If a claimant refused the type of compensation awarded , he would forfeit his right to compensation as regards the concerned instalment . Compensation would be automatically carried out by the authorities . In - kind compensation would take priority over financial compensation . Until the total allocation of properties to the ORG , which would be completed by DATE , in - kind compensation would be distributed as it becomes available .", "A new directorate , which would coordinate different ORG bodies , would be established within ORG .", "The Action Plan did not contain time - limits as regards its implementation .", "On DATE ORG enacted GPE ( Law no . DATE ) , which is a special fund within the meaning of the budget act . ORG beneficiaries are CARDINAL - fold : ( CARDINAL ) former owners whose right to compensation was recognised on account of the DATE and/or DATE LAW ; and ( CARDINAL ) former owners whose right to compensation was recognised on the strength of LAW ( see “ LAW ” section below ) .", "The revenue of ORG would consist of : ( a ) DATE allocations from the ORG budget in accordance with ORG as amended ; ( b ) proceeds deriving from the sale at auction of ORG properties in respect of which no decision on restitution or compensation has been adopted ; ( c ) income generated during the process of the legalisation of unauthorised constructions ( see paragraph CARDINAL below ) ; ( d ) income generated as a result of the implementation of other laws and by - laws ; and ( e ) donations .", "The Special Compensation Fund will be administered by the ORG .", "On DATE ORG enacted LAW in order to regularise illegal constructions and extensions that had been constructed on public and private land in DATE as a result of rapid , profound , internal demographic movements . The Act provided for the transfer of ownership of the plot of land on which unauthorised buildings were constructed , from the original land owner through the ORG to the owner of the unauthorised building , against the payment of a sale price ( sections DATE ) in cash or by way of privatisation vouchers ( section CARDINAL ) . The formal land owner would receive full compensation in respect of the expropriated plot of land in accordance with ORG . The proceeds obtained by the legalisation process would be transferred to the financial compensation fund as provided for by LAW ( section CARDINAL as amended ) .", "Statistics concerning the legalisation process , as provided for by the Government , have been annexed to this judgment .", "In its latest decision of DATE concerning the supervision of the execution of this ORG ’s judgments , at its FAC meeting , ORG , inter alia , “ took note of the elaboration by the NORP authorities of [ a ] draft global strategy on property rights . ” It further insisted that the NORP authorities should make concrete progress in order to “ establish a list of final decisions , finalise the land value map , calculate the cost of the execution of decisions in order to be able to define the resources needed , adopt the final execution mechanism and execute the decisions at issue . ”" ]

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

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

[ "P1-1-1" ]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE he was convicted of theft and sentenced to DATE and CARDINAL months’ imprisonment . In the period DATE and DATE he was detained in a low - security prison facility ( „ затворническо общежитие ” ) in GPE , part of FAC .", "The applicant submitted that the entirety of his incoming and outgoing correspondence with his lawyers had been monitored by the prison administration . He submitted CARDINAL envelopes addressed by him to his lawyers , one from the prison facility in GPE and CARDINAL from FAC . Each envelope was marked or stamped as having been monitored by the prison administration . As noted in a letter from ORG at ORG submitted by the Government , the prison administration , acting in compliance with section QUANTITY ) of LAW of DATE , routinely opened all letters , including those sent to lawyers , save those addressed to certain state bodies or international organisations .", "The applicant further submitted that he had not been allowed to contact his lawyer by phone and that his meetings with relatives and lawyers had been held in special LOC with a prison officer attending the meeting .", "The applicant submitted that the conditions of his detention in the prison facility in GPE had been poor . In particular , the stated that ( a ) his cell had been small and overcrowded , not equipped with a toilet or a sink ; ( b ) the number of toilets and showers had been insufficient ; ( c ) the food had been of poor quality and insufficient ; ( d ) the heating and ventilation had been insufficient ; ( e ) the level of hygiene in the common areas had been poor ; ( f ) dental services had not been covered by the ORG ; ( g ) prison officers had often addressed inmates in an offensive way , physical harassment had not been uncommon , and disciplinary punishments had been imposed without proper observance of inmates’ rights .", "The applicant never brought an action for damages under the ORG and ORG ( “ the ORG ” ) .", "The relevant domestic law and practice concerning ORG correspondence are set out in the ORG ’s judgment in the case of GPE and Others v. GPE , nos . CARDINAL/CARDINAL and CARDINAL , LAW DATE , DATE ." ]

[ "8" ]

[ "8-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant filed for divorce with ORG . After obtaining several forensic expert opinions , it dissolved the applicant ’s marriage , established the amount of child maintenance and divided the matrimonial property on DATE .", "On DATE the ORG brought a partial judgment concerning the sum of child maintenance , and remitted the remainder of the case .", "In the resumed proceedings the ORG delivered a judgment on DATE . On appeal , ORG finally divided the matrimonial property on DATE . This judgment was served on the applicant on DATE ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in GPE in DATE and currently lives in GPE .", "On DATE , at DATE he arrived in GPE from GPE , where he was granted entry clearance together with his CARDINAL sisters to join their mother , who had resided for DATE in GPE and was working as a nurse . The applicant has not seen his father since DATE , when the latter abandoned the family . Prior to arriving in GPE , he resided with his elderly maternal grandfather in a town a DATE ’s travel from GPE .", "On DATE , at DATE , the applicant was convicted of the rape , together with a group of other boys , of a DATE girl . The sentencing judge remarked :", "“ The fact is that your self - centred behaviour has had a profound and distressing effect on the everyday life of a DATE girl . In my view , you are an intelligent and articulate young man , someone who tailored your account to your advantage and you cast deliberate aspersions on your victim . Your intention was to obtain sexual gratification with what in reality was an impressionable schoolgirl by a combination of persistence , charm and finally force ... ”", "Taking into account the applicant ’s age and previous good character and the fact that there were few aggravating features , the judge imposed a sentence of detention of DATE at ORG , together with registration on the sex ORG register under LAW .", "On DATE , while the applicant was still in detention , ORG granted him Indefinite Leave to Remain in GPE following the grant of Indefinite Leave to Remain to his mother .", "On DATE , the applicant was served by ORG with a notice of liability to a deportation order on account of the rape conviction .", "On CARDINAL DATE a ORG was prepared , concluding that the applicant ’s response to rehabilitation was positive overall and that he posed a low risk of re - offending and of causing harm to the public . It noted his exemplary conduct in prison and the consistently good reports received . While in detention , the applicant sat and passed national school education examinations , obtaining ORG and AS - level qualifications .", "On DATE , while still in detention , the applicant was served with a deportation order in the following terms :", "“ It is concluded that in light of the seriousness of your criminal offence your removal from GPE is necessary in a NORP society for the prevention of disorder and crime and for the protection of health and morals .", "...", "You have stated that if you are returned to LAW CARDINAL would be infringed . ORG has carefully considered your representations , but we note that you were convicted of rape at ORG for which you were sentenced to DATE imprisonment . We consider that the concerns that you have raised about your family life are outweighed by the public interest in preventing crime and consider that any interference with your family life is in your case outweighed by the public interest in preventing crime , and your removal is proportionate in pursuit of that aim under Article CARDINAL(CARDINAL ) . ”", "The applicant appealed against the order .", "On DATE the applicant was released from prison on licence for good behaviour , having served approximately DATE and DATE of his DATE sentence . In DATE , he enrolled at ORG in order to study towards obtaining A - level qualifications , the second part of national school education examinations . He obtained CARDINAL A - levels in DATE .", "On DATE , the applicant ’s probation officer confirmed that the applicant had complied with all reporting instructions since his release . The probation officer assessed the applicant ’s risk of re - offending as low .", "On DATE , the Immigration Judge of ORG ( “ the ORG ” ) allowed the applicant ’s appeal against the deportation order on the basis that the discretion to make the deportation order had not been exercised fairly and proportionately .", "On DATE , the Secretary of ORG applied to the ORG for reconsideration of the decision . The Senior Immigration Judge duly ordered reconsideration on DATE .", "In DATE , the applicant commenced a university undergraduate degree in economics , banking and finance . He lived with friends during term - time but continued to regard his mother ’s address as his permanent residence .", "On DATE , a panel of the ORG unanimously concluded that there had been a clear material error in the approach of the Immigration Judge and quashed his decision . It adjourned the matter for reconsideration on all issues .", "On DATE a hearing de novo of the applicant ’s case was conducted by the ORG . Delivering judgment , the Immigration Judge indicated that the various factors to which this ORG ’s case - law refers had been taken into account . He noted that the applicant was DATE and had spent DATE , including his youth and DATE , in GPE . He further observed that the applicant had resided for DATE in GPE , a period which included DATE and DATE spent on remand or serving his sentence . He also considered the strength of the applicant ’s connections to GPE , observing that he was close to his mother ( now a NORP citizen ) , sisters and uncle , all of whom resided in GPE , that he attended a church and that he was studying at university . The judge further had regard to the applicant ’s personal history , including his rape conviction and the grant of Indefinite Leave to Remain in DATE . He took account of the applicant ’s domestic circumstances and his permanent residence with his mother and previous good character . He examined the nature of the offence for which the applicant was convicted , including the sentencing judge ’s remarks ( see paragraph CARDINAL above ) and the absence of any reference to deportation , and accepted that the applicant was at low risk of re - offending . He considered the likely period before the applicant would be able to apply for re - entry , which he assessed at DATE , observing that by that time the applicant was unlikely to have any ground for applying for entry clearance . Finally , he considered compassionate circumstances and the public interest . In respect of the latter , the judge noted that the presumption was in favour of deportation , that the applicant was DATE and in good health , that he had a grandfather with a home in GPE and probably had more relatives in GPE than he had admitted and that family visits would be possible . He concluded ( at paragraph CARDINAL ) :", "“ Having considered all the evidence before us and the representations made on behalf of the [ applicant ] , we find that :", "a ) the [ applicant ’s ] offence was one of the categories of offences regarded by the [ Secretary of ORG ] as particularly serious ;", "b ) the circumstances in this case are not particularly exceptional , and they do not outweigh the presumption in favour of deportation in accordance with the current version of Rule CARDINAL [ see paragraph CARDINAL below ] ;", "c ) in any event , even if , contrary to our finding , the provisions of the previous Rule CARDINAL had applied to his case , we would have found that the public interest would have outweighed the other factors in this case ;", "d ) we accordingly dismiss the [ applicant ’s ] appeal against the [ Secretary of ORG ’s ] decision to deport him . ”", "As regards the applicant ’s complaint under LAW , the judge was not persuaded that the applicant currently had family life in GPE , given that he was DATE , lived with friends during term - time , and had no elements of dependence in respect of his mother , sisters or uncle going beyond normal emotional ties . However , he did accept that the applicant had established a private life in the GPE given the length of his residence , the presence of family members in GPE , and his attendance at a church and university . He added :", "“ CARDINAL . We also find that the [ Secretary of ORG ’s ] decision interferes with respect for that private life , in that he would be separated from his family and church , and his degree course ... would be cut short .", "However , we also find that the interference pursues the lawful aim of immigration control , that it is in accordance with the law , and that it is proportionate , and in making the finding about proportionality we have balanced the following factors :", "a ) all the same factors , including the [ applicant ’s ] domestic circumstances , as we have already taken into account when considering the balancing exercise in relation to the deportation of the [ applicant ] ;", "b ) the fact that the public interest in maintaining an effective immigration control normally outweighs respect for an individual appellant ’s private life ;", "c ) the fact , as we find , that the public interest in the prevention of crime in this case also outweighs the [ applicant ’s ] right to respect for private life ;", "d ) and we find that none of the factors mentioned on behalf of the [ applicant ] , individually or cumulatively , prejudices the private life of the [ applicant ] in a manner sufficiently serious to amount to a breach of the fundamental right protected by LAW", "Accordingly , the applicant ’s appeal was dismissed .", "The applicant sought permission to appeal to ORG . Permission was refused by ORG on DATE .", "NORP In DATE , the applicant completed his undergraduate degree . In DATE he completed a Master ’s degree . In DATE he was offered employment with a local authority in GPE , which he accepted . He currently lives with his mother and visits his CARDINAL sisters , who also reside in GPE , regularly . The applicant continues to attend church in GPE .", "On DATE the applicant received a letter from the GPE ORG indicating that the immigration authorities were considering whether deportation action should be taken in respect of the applicant ’s conviction . The applicant was requested to provide details of any change in his circumstances since his last contact with the immigration authorities . Upon being advised that a case was pending before this ORG , the immigration authorities indicated that they would await the outcome of these proceedings .", "Section CARDINAL(CARDINAL)(a ) of LAW DATE ( as substituted by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if “ the Secretary of ORG deems his deportation to be conducive to the public good ” .", "Section CARDINAL provides that :", "“ ( CARDINAL ) Where a person is under section CARDINAL(CARDINAL ) or ( CARDINAL ) above liable to deportation , then subject to the following provisions of this LAW the Secretary of ORG may make a deportation order against him ... and a deportation order against a person shall invalidate any leave to enter or remain in the GPE given him before the order is made or while it is in force .", "( CARDINAL ) A deportation order against a person may at any time be revoked by a further order of the Secretary of ORG ... ”", "Sections CARDINAL(CARDINAL ) , DATE ) and ( k ) and CARDINAL of the Nationality , Immigration and Asylum Act DATE ( as amended ) provide for a right of appeal against such decision to make a deportation order or a refusal to revoke a deportation order on the grounds , inter alia , that the decision is incompatible with the Convention .", "The Immigration Rules , prescribed by the Secretary of ORG under section CARDINAL(CARDINAL ) of the LAW DATE for the implementation of the LAW , provide as follows :", "“ CARDINAL . Subject to paragraph CARDINAL , while each case will have to be considered on its merits , where a person is liable to deportation the presumption shall be that the public interest requires deportation . The Secretary of ORG will consider all relevant factors in considering whether the presumption is outweighed in any particular case , although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to LAW and the LAW relating to LAW to deport . The aim is an exercise of the power of deportation which is consistent and fair as between CARDINAL person and another , although CARDINAL case will rarely be identical with another in all material respects ...", "...", "A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to GPE obligations under LAW relating to ORG . ”" ]

[ "8" ]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "In DATE the applicant began investing in commercial papers of the company ORG . via the company ORG At DATE such trading was prohibited by LAW however the applicant continued with the activity until DATE .", "In DATE the applicant instituted enforcement proceedings against the company ORG before ORG seeking the payment of lost investments from ORG for not informing her of the legislative amendments and continuing with the trading of commercial papers . She further complained before the domestic courts that as the company ORG . was bankrupt , she could only receive back a small proportion of her investments in bankruptcy proceedings .", "On DATE ORG issued a writ of execution .", "On DATE following an objection the case was referred to contentious proceedings .", "On DATE ORG rendered a judgment rejecting the applicant ’s request . She appealed .", "On DATE ORG upheld the appeal and remitted the case for re - examination . The second - instance court found that as the applicant had clarified that she was seeking compensation for damages only in the appeal phase , this constituted a new fact that the first - instance court would have to deliberate upon .", "On DATE ORG rendered a judgment . The court found that given the contractual arrangements the company ORG could not be held responsible for the damages sustained . The applicant appealed .", "On DATE ORG upheld the firstinstance judgment and rejected the appeal . The applicant lodged an appeal on points of law .", "On DATE ORG rejected her appeal . She lodged a constitutional appeal .", "On DATE ORG rejected her appeal .", "For relevant domestic law see PERSON v. GPE ( no . CARDINAL , CARDINAL DATE ) ." ]

[ "13", "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE . He lives in GPE , in the LOC district of ORG .", "The applicant is the brother of PERSON , born in DATE .", "At the material time the applicant studied law in GPE , GPE . The applicant was not an eyewitness to his brother 's arrest and the following account is based on the witness statements collected by him later .", "On TIME brother PERSON was arrested in the family house situated at DATE , FAC , in the settlement of GPE in the LOC district of ORG . The arrest was apparently carried out by the officers of ORG for the Fight against Organised Crime ( Северокавказское Региональное Управление по Борьбе с NORP Преступностью – “ the ORG ” ) . The applicant submitted that at the time of the arrest the officers did not introduce themselves and did not present any documents or justification for their action . Nor did they inform the family where they were taking PERSON GPE .", "On DATE the applicant , alerted by his mother , arrived at PERSON . His relatives told him that there had been no news of PERSON whereabouts .", "According to the documents submitted by the Government , on DATE PERSON had been charged with aiding and abetting the kidnapping of PERSON on DATE , together with CARDINAL other men and unidentified persons from GPE . The kidnapped man had been taken to GPE in CARDINAL ORG cars .", "On DATE the applicant , together with his sister , met with Mr PERSON . , the deputy prosecutor of PERSON . The latter informed them that their brother had been arrested on his orders by officers of the ORG and was being detained in the town of GPE , Ingushetia . Mr PERSON . refused to tell the applicant and his sister where exactly their brother was detained and what charges had been brought against him .", "On DATE the applicant found out that his brother had been detained at the temporary detention centre ( “ the ORG ” ) of the LOC district police department ( ROVD ) .", "The applicant hired a lawyer , who unsuccessfully tried to reach PERSON at the detention centre .", "In DATE the applicant had a meeting with Mr PERSON . The latter allegedly told him that he would release his brother in exchange for MONEY ( ORG ) and threatened to have PERSON transferred to the headquarters of the ORG in GPE , Kabardino - Balkaria , where he would be subjected to severe illtreatment , if the applicant refused to pay the money . The applicant refused to pay .", "On DATE the applicant saw his brother at the ORG . PERSON told the applicant that he had been pressured to confess to the crime and that he had been threatened with transfer to the ORG headquarters in GPE .", "On DATE the applicant returned to the detention centre to see his brother . He was told by the employees that the night before , at QUANTITY , PERSON had been taken to the prosecutor 's office and that after that , at TIME , he had been taken away in a vehicle in the direction of GPE .", "The Government confirmed that on DATE PERSON had been detained by the law - enforcement bodies in accordance with the provisions of the criminal procedural legislation in force at the material time . He had been detained in connection with the investigation into Mr PERSON abduction that had been opened on DATE and registered under file number DATE . The decision to place PERSON under arrest had been unsuccessfully appealed against to a court . The Government submitted that the term of detention for Mr PERSON had been extended on several occasions , the last of which had been on CARDINAL DATE ; his detention had been authorised until DATE .", "The applicant and his relatives had no news of PERSON after DATE . On DATE a man who introduced himself as “ NORP ” contacted CARDINAL of the applicant 's relatives . According to “ NORP ” , he had been detained with PERSON in cell no . CARDINAL in pre - trial detention centre no . CARDINAL ( SIZO-CARDINAL ) in GPE , Kabardino - Balkaria . The applicant 's brother had been detained there under a false identity and had been in poor health .", "On DATE the applicant , together with his lawyer Mr GPE , went to GPE to visit his brother . The applicant 's lawyer was granted permission to see PERSON . According to the lawyer , PERSON was in poor health and had no access to medical treatment .", "On DATE the head of the SIZO-CARDINAL medical unit provided the applicant with a handwritten statement . According to it , PERSON had been brought to SIZO-CARDINAL on DATE with numerous bruises , abrasions , scratches on his limbs and injuries to the chest .", "On DATE the applicant and his sister obtained the GPE district prosecutor 's permission to visit their brother . PERSON told them that he had been pressured to confess to the involvement in the abduction of Mr PERSON and that he had been ordered to convince his relatives to pay DATE , CARDINAL for his release . PERSON told his relatives that he had been subjected to severe beatings in the building of the ORG situated at FAC in GPE . Finally , he insisted that the applicant and his other relatives should not pay money for his release . It does not appear that any complaints have been lodged in this respect .", "On DATE , at TIME , a group of CARDINAL men wearing police uniforms arrived at SIZO-CARDINAL in a CARDINAL car . The men identified themselves as officers of ORG in GPE . CARDINAL of them entered the premises of the centre and produced the following documents authorising the transfer of PERSON from SIZO-CARDINAL to the Malgobek IVS :", "a ) a letter from the acting prosecutor of PERSON , dated DATE , requesting that PERSON be handed over to CARDINAL officers of the Malgobek ROVD : NORP K. , PERSON , PERSON and PERSON ;", "b ) a procedural decision in criminal case no . DATE , dated DATE , concerning the transfer of the accused PERSON for investigative measures from SIZO-CARDINAL to ORG ;", "c ) an authority form , dated DATE , issued by the head of the PERSON to officers of ORG , ORG , PERSON , PERSON and PERSON , concerning the transfer of PERSON to ORG .", "The documents were produced to the employees of SIZO-CARDINAL , officers PERSON . and PERSON , who handed PERSON over to the CARDINAL men . The latter took the applicant 's brother away in an unknown direction .", "On DATE PERSON body was found in the Mayskiy district of NORP with gunshot wounds to the head .", "On DATE CARDINAL ORG officers arrived at the applicant 's house . They told him that a body whose fingerprints were consistent with those of PERSON had been found in NORP and asked him to identify it .", "On DATE the applicant and his sister identified the body as that of PERSON .", "On DATE the Kabardino - Balkaria forensic assessments office issued a report ( no . CARDINAL ) . According to this , PERSON had died on an unspecified date from an open gunshot wound to the head .", "It can be seen from the documents submitted by the Government that on DATE the criminal proceedings in respect of PERSON were terminated in view of his death .", "On DATE the GPE town civil registration office issued a death certificate for PERSON . It stated that death had occurred on DATE .", "The description of the events of TIME DATE and the subsequent developments is based on the following documents : the applicant 's accounts given on CARDINAL and DATE , DATE and CARDINAL DATE ; an account by the applicant 's sister PERSON , given on DATE ; an account by the applicant 's neighbour GPE , given on DATE ; a hand - drawn map of the premises of the applicant 's house in PERSON and copies of the documents submitted with the application .", "The NORP press widely reported the kidnapping for ransom of PERSON , whose younger brother PERSON had occupied a top executive position in GPE , CARDINAL of GPE 's largest oil companies , at the relevant time . It appears from the reports that PERSON had been freed from ORG , GPE , some time in DATE as a result of a raid carried out by his relatives , including PERSON , and that several well - known NORP “ field commanders ” involved in the kidnapping were killed . Numerous publications also reported PERSON murder and linked it to the kidnapping of PERSON . , former deputy prosecutor of the LOC district , was quoted in many of these publications and wrote several articles himself .", "It can be seen from the information submitted by the Government that the official investigation into the kidnapping of PERSON was closed in DATE .", "The Government , in response to the ORG 's request , submitted CARDINAL pages from the investigation file , as well as additional information about its progress . They stated that disclosure of the remaining documents from the file could be harmful to the continuing investigation and sought application of Rule CARDINAL § CARDINAL of ORG to the submitted documents .", "The applicant , in turn , submitted some additional information about his contacts with the investigation . The relevant information may be summarised as follows .", "On DATE the prosecutor 's office of the Mayskiy district of Kabardino - Balkaria instituted an investigation under LAW ( murder ) into the death of an unknown man whose body had been found in the vicinity of GPE with gunshot wounds to the head . The case file was given number CARDINAL - CARDINAL ( in the submitted materials the number is also referred to as CARDINAL ) .", "On DATE the investigation into the murder of PERSON was transferred to the Kabardino - Balkaria prosecutor 's office . The applicant 's family was informed of this by a letter from ORG .", "On DATE the ORG prosecutor 's office opened a criminal investigation in respect of Mr PERSON . under LAW § CARDINAL of LAW ( abuse of power entailing serious consequences ) , no . DATE . On DATE the ORG prosecutor 's office opened an additional investigation into abuse of power by PERSON . under file number DATE .", "On CARDINAL DATE the CARDINAL cases were joined under file number CARDINAL - CARDINAL at the LOC department of ORG .", "On DATE ( in accordance with the decision of DATE suspending the investigation , see paragraph CARDINAL below ) the investigation in respect of Mr PERSON . , his relatives and members of the PERSON family ( CARDINAL persons altogether ) for abuse of power was closed .", "On DATE criminal charges against PERSON . for murder and kidnapping were dropped for want of evidence .", "On DATE the investigation into the murder was suspended in view of the failure to identify the suspects .", "On DATE the department of the LOC department of ORG concluded that the investigation had been incomplete . The decisions of CARDINAL and DATE were quashed and the investigation was remitted to an investigator of that department with a number of specific directions .", "In DATE the LOC department of ORG created a special investigative group charged with solving the crime .", "On DATE charges of involvement in the kidnapping and murder of Mr PERSON . were dropped for want of evidence . On DATE proceedings were suspended for lack of suspects .", "On DATE the NORP Deputy General Prosecutor quashed the decisions of DATE and CARDINAL DATE and appointed a new investigative group , headed by the deputy head of the ORG department of ORG .", "On DATE the investigation in criminal case no . CARDINAL was suspended owing to the failure to identify the perpetrators . On DATE the LOC department of ORG informed the applicant of the decision .", "On DATE the investigators carried out an examination of the site , compiled a description of the body and collected CARDINAL cartridges . DATE an additional examination of the site resulted in the finding of another cartridge and CARDINAL bullets .", "On DATE a forensic expert from the NORP police department carried out an examination of the body and an autopsy . The expert found , inter alia , that the body bore CARDINAL gunshot wounds to the left side of the head , each of which could have been lethal . The shots had been fired from a close range within TIME of time . The expert noted several bruises and abrasions on the face and hands , especially around the wrists , which had been caused within DATE TIME before death ; he also noted traces indicating that the body had been dragged along immediately after the death had occurred . The expert concluded that death had occurred DATE before the examination of the body .", "DATE . On DATE the ballistic expert reported that the CARDINAL cartridges and bullets had been fired from CARDINAL “ PERSON ” QUANTITY calibre hand pistol . This conclusion was confirmed by a ballistic expert report of DATE , carried out by the expert department of ORG .", "On DATE the investigator of the ORG district prosecutor 's office questioned the applicant . He stated that his brother had been detained on DATE on the orders of the deputy prosecutor of the LOC district , Mr PERSON . , on suspicion of involvement in kidnapping . The applicant stated that on several occasions his brother had been transferred from CARDINAL detention place to another . He had last seen him in DATE and PERSON had complained that for a long time no investigative action had taken place . He also stated that in DATE the investigator working on the kidnapping case had told him that he had ordered his brother 's transfer to PERSON and that he would soon be taken there . The applicant named several persons who could have been responsible for his brother 's death , including former police officer PERSON . , a cousin of the former deputy PERSON district prosecutor Ibragim PERSON . , and PERSON", "On DATE the investigator of the ORG prosecutor 's office again questioned the applicant , who gave detailed submissions relating the account of his brother 's arrest and detention as summarised above . The applicant told the investigator that his brother had close friends in ORG , GPE , where he regularly travelled . He also stated that he suspected PERSON . of masterminding and carrying out the operation aimed at abducting PERSON from the pretrial detention centre . He stated that PERSON . had possessed the knowledge required to produce the papers necessary to organise the prisoner 's transfer , that he had the necessary computer and other technical skills and that he had been rewarded by the relatives of PERSON In particular , the applicant stated that he was aware that PERSON . had obtained from those relatives a ORG vehicle , a computer , a mobile phone and that he had bought a flat in GPE , Kabardino - Balkaria , with money received from them . Furthermore , the applicant accused PERSON . of being present when his brother had been beaten by relatives of PERSON outside PERSON in DATE . He again accused the PERSON family of organising his brother 's murder and said that the crime could have been carried out by PERSON . , PERSON , PERSON . and PERSON .", "On DATE the applicant 's sister PERSON told the investigator that she had visited her brother in prison , that he had not complained of anything but had denied that he had been involved in the kidnapping . She also named PERSON . and PERSON , brother of the kidnapped PERSON , as the possible perpetrators of the killing .", "On DATE the applicant and his sister L. B. were granted the status of victims in the criminal proceedings relating to their brother 's murder . On DATE the applicant was granted the status of victim in the criminal investigation carried out “ into the unlawful actions of the former deputy prosecutor of the PERSON town , Mr M[agomed ] PERSON . ”", "On DATE the applicant and PERSON wrote to the LOC prosecutor . They accused Mr PERSON . of allowing the beating of their brother on TIME to DATE by CARDINAL relatives of PERSON . and by the relatives of PERSON They again submitted that PERSON . had obtained property from the family of PERSON in return for his “ assistance ” in the solving of his kidnapping .", "On DATE the applicant 's sister told the investigators that on DATE she had visited her brother in prison and that on DATE she had noticed marks from handcuffs and traces of beatings on his face . She also submitted that PERSON had told her that during TIME DATE PERSON . and his relatives , together with relatives of PERSON , had taken him outside of PERSON and beaten him in an attempt to obtain a confession regarding the kidnapping .", "On DATE the applicant gave detailed submissions to an investigator from the ORG prosecutor 's office relating the arrest and detention of his brother , as described above . In addition , he submitted that on DATE his brother had told him in great detail what had happened on TIME and named other persons who had been detained with him and questioned by the relatives of PERSON also allegedly told him that he had been taken to several detention centres in LOC prior to being admitted to the pre - trial detention centre no . CARDINAL in GPE because he had suffered from the beatings and the officials had refused to accept him . The applicant named Mr PERSON . as the individual responsible for the ill - treatment of his brother and , ultimately , for organising his transfer to the murderers . He stressed that the documents authorising his brother 's removal from the prison in GPE had been produced by someone who had detailed knowledge of the requirements for such documents and that the forgery had necessitated considerable computer skills . The applicant also submitted that on DATE he had gone to the GPE no . CARDINAL in GPE and left a food parcel for his brother , which had been accepted . At that time he had not been informed that his brother was no longer detained there .", "On DATE the applicant 's sister repeated her previous statements . She stated , further , that in DATE and DATE Mr PERSON . had threatened to kill her brother , the applicant .", "On DATE the applicant 's mother gave statements similar to those of the applicant and her daughter .", "On DATE the applicant was questioned by an investigator from the ORG prosecutor 's office again . He repeated his allegations against PERSON .", "On DATE the investigator from the ORG prosecutor 's office questioned the applicant again . He supplemented his previous statements and claimed that Mr PERSON . had been acting in cooperation with the relatives of PERSON from the very early stages of the investigation . He stated that DATE a number of men , whose names he had supplied to the investigation , had been arrested and then transferred to private residences where they had been beaten and tortured with the aim of extracting confessions . According to the applicant , Mr PERSON . had participated in these actions and filmed them . The applicant also claimed that in DATE Mr PERSON . had asked his mother and sister to pay MONEY in return for his brother 's release . He also submitted additional details about the circumstances of his brother 's beatings on CARDINAL DATE .", "The investigators questioned the staff at the pre - trial detention centre in GPE who had been on duty on DATE . On DATE CARDINAL officers stated that they had inspected the papers of the CARDINAL men who had presented themselves as police officers from the Malgobek ROVD and had not found them suspicious . They had organised the transfer of PERSON to the CARDINAL men in accordance with the usual procedure . CARDINAL of the men bore the distinction of a Senior Lieutenant , the other of a non - commissioned officer of ORG . The men had spoken PERSON between themselves ; CARDINAL of them had had a ORG radio receiver but had not used it during the encounter . CARDINAL of the officers gave a detailed physical description of the CARDINAL men and said that he would be prepared to identify them . The deputy head of the detention centre , Mr PERSON . , told the investigators that he had checked the names of the CARDINAL men and the papers for the prisoner 's transfer . He had not inspected their documents because , according to the relevant procedure , the identity documents should have been left at the entrance to the building .", "Several of PERSON co - detainees in the pretrial detention centre in GPE stated on DATE that the deceased had not raised any complaints , that he had been visited by a lawyer and by his brother and that in DATE he had been taken away , apparently for transfer to ORG .", "On DATE the acting prosecutor of the Malgobek district told the investigators that he had ordered Mr PERSON 's transfer to PERSON on DATE , but for unknown reasons that order had not been complied with . The documents which had enabled PERSON to be kidnapped had been forged and their numbers corresponded to other documents . The persons indicated in the escort documents had not worked at the PERSON ROVD . In DATE he gave a further statement , describing Mr PERSON . as an honest and motivated officer who had been falsely accused by the applicant and his relatives .", "On DATE an officer from the LANGUAGE pre - trial detention centre identified a man from a photo as CARDINAL of those who had collected PERSON on DATE . Later that man , a worker in a gas plant , submitted reliable evidence that he had not been in Kabardino - Balkaria at the time , as supported by documents and witness statements collected by the investigation .", "On DATE the head of the Malgobek ROVD stated that PERSON had been detained at ORG from DATE . He was shown the registration log of the ORG , according to which on DATE Mr PERSON had been taken out of the ORG at TIME by the local police officer PERSON . The head of the ROVD explained that he had been informed TIME by the officer on duty that the deputy district prosecutor had ordered that PERSON PERSON be brought to his office for questioning . At first the head of the ROVD had refused , but Mr PERSON . had called him and insisted , threatening to open a criminal investigation if he did not comply . Mr PERSON . explained that he had senior officers of ORG in his office and that it was possible that PERSON would be transferred to NORP for further investigation . The head of the ROVD then agreed , but instructed his staff to obtain Mr PERSON . 's signature to the effect that he had accepted the detainee . He could not explain why a district police officer , Mr PERSON . , had signed . When questioned about PERSON abduction and murder , the head of the police confirmed that the men identified in the escort documents had never served at the ROVD and that he had not issued the documents in question .", "In addition to the above investigative documents , copies of which the ORG submitted to the ORG , it can be seen from their memorandum of DATE that the investigators also questioned CARDINAL acting and former officers of the PERSON prosecutor 's office , all of whom denied that they had been aware of any connection between the PERSON family and PERSON . CARDINAL of these officers , quoted by the Government , stated that PERSON had been a member of the bandit group based in ORG , along with CARDINAL other men who had been charged with kidnappings .", "The Government also submitted a copy of the record of interview of PERSON . , who stated that he had permanently lived in GPE and had been there throughout DATE . PERSON . denied having known PERSON ; as to PERSON . , the witness stated that he had gone to the same school but had not kept in contact in DATE .", "DATE . On DATE the investigators in criminal case no . CARDINAL carried out an expert assessment of CARDINAL documents concerning the transfer of PERSON from SIZO-CARDINAL on DATE . The criminology expert of ORG concluded that the imprint of the LOC prosecutor 's office 's seal had been reproduced with the aid of a factory - made stamp , but not the CARDINAL used by the district prosecutor 's office . The imprint of the ORG had been reproduced with the aid of a colour printer . A graphology expert report reported difficulties in analysing short notes with dates and signatures on the documents , but concluded that some of the notes could have been made by Mr PERSON . , his brother and by the acting PERSON prosecutor .", "On DATE the Central NORP forensic laboratory issued an additional expert assessment . It concluded that the signatures on all the documents concerning the transfer of PERSON from SIZO-CARDINAL to ORG had been forged , and that the date and signature on one of the documents had been written by PERSON PERSON .", "NORP In DATE the investigators questioned a number of experts from LOC forensic laboratory seeking an explanation for the differences in the reports . The experts referred to the incomplete conclusions of some of the studies .", "On DATE the NORP ORG of ORG concluded that it was impossible to establish with certainty whether the handwritten words on the document in question had been written by PERSON . or not .", "According to the documents contained in the criminal investigation file , at some point in DATE documents constituting the basis for examination and a part of the original expert report had been stolen or changed . A separate criminal investigation was carried out , during which several officers from the prosecutor 's office and ORG were questioned . The investigation collected the copies of the original documents from ORG . PERSON . was questioned as a suspect . On CARDINAL DATE the investigation against him was closed for want of incriminating evidence .", "On DATE the investigator from the Kabardino - Balkaria prosecutor 's office questioned PERSON . The latter confirmed that he had headed the group at the PERSON prosecutor 's office which had investigated the kidnapping of PERSON had authorised PERSON detention in relation to that crime . According to him , Mr GPE had been suspected of involvement in other crimes committed in the region , which was the reason for his transfer to GPE and GPE . Mr PERSON . denied that he had been involved in the kidnapping and murder of PERSON . He stated that he had never seen the documents authorising the latter 's removal from the pre - trial detention centre in GPE in DATE . Mr PERSON . stated that he had quit his job at the prosecutor 's office in DATE and now lived in GPE . He had learnt of PERSON death from his father in DATE . He denied that he had previously allowed the relatives of PERSON access to PERSON .", "NORP In DATE the investigators carried out a series of identification parades , during which the officers of the GPE pretrial detention centre failed to identify Mr PERSON . , his brothers and cousins as the persons who had taken away PERSON .", "On DATE the Kabardino - Balkaria prosecutor 's office brought charges against Mr PERSON . He was charged in absentia with complicity in PERSON kidnapping and murder and forgery of official documents . On DATE Mr Magomed Ye . was ordered to be arrested and declared a fugitive from justice , and his name was put on the wanted list .", "DATE . On DATE Mr PERSON . was detained and questioned as a suspect . He again denied any connection with the murder and requested a number of additional investigative measures .", "The investigators obtained the documents according to which in DATE Mr PERSON . had complained to his superior about the false accusations brought against him by the relatives of PERSON and requested the district prosecutor of PERSON to open a criminal investigation for libel . At the same time , pending completion of the investigation , he requested to be relieved from the duty of investigating the case . On DATE PERSON . resigned from the prosecutor 's office .", "On DATE the ORG released PERSON PERSON . from detention , having found that there were no reasons to suspect him of absconding from justice . The court noted that PERSON . had always appeared at the prosecutor 's office when summoned to do so , resided at his declared place of residence in GPE and had other family reasons not to abscond .", "In DATE a waitress in a roadside café in ORG told the investigators that DATE she had seen Mr PERSON . During a confrontation carried out on DATE she retracted her statements and explained that she had last seen him in DATE , and that in DATE she had seen another person whom she had confused with PERSON . She gave detailed submissions in this respect . CARDINAL other men and PERSON . gave concordant statements .", "NORP In DATE the investigators questioned witnesses and obtained documents to the effect that in DATE Mr PERSON . had been working DATE for a private company in GPE .", "NORP In DATE PERSON . gave an additional statement as a suspect . He again denied any involvement in the imputed crime , denied having ever received or used a ORG vehicle and denied receiving any money or property from the PERSON family .", "In their memorandum of DATE the ORG stated , without providing copies of such documents or the dates when they were obtained , that the investigators also questioned CARDINAL members of the PERSON family who denied having any relations with PERSON . or giving him money or property . These and other witnesses suggested that the libel campaign against PERSON . had been inspired by members of a fundamentalist bandit group based in ORG , GPE , who had committed numerous kidnappings for ransom . The Kabardino - Balkaria Land Registry reported that PERSON . had owned no real estate in that region .", "In their memorandum of DATE the ORG also stated , without providing copies of such documents or the dates when they were obtained , that the investigators had also questioned the brother and cousin of PERSON . : police officers named by the applicant as possible perpetrators of the crime . They denied their involvement in the events . The police department of PERSON confirmed that PERSON . 's cousin had been working daily DATE . Police officers PERSON . and PERSON . were also questioned at some point and denied having any connection with the murder . The ORG also referred to records of interviews of CARDINAL members of the PERSON family who stated that they had no relations with PERSON . outside the official framework of the investigation and that they had not given him money or property .", "As can be seen from the statements collected in DATE from the applicant and his father , some time in DATE police officer PERSON . had been charged with false imprisonment and abuse of power in relation to the taking of PERSON from ORG in TIME on DATE . He had been found guilty and given a suspended sentence ; the applicant did not appeal against the sentence . It also appears from these statements that the applicant and PERSON . had reached an informal agreement prior to the trial and that the applicant had “ accepted ” PERSON . 's “ apology ” and declaration that he had not been involved in his brother 's murder . No other documents or information relating to this process have been submitted by the parties .", "It can be seen from the submitted documents that in DATE PERSON , the brother of the kidnapped PERSON , complained to the prosecutor 's office that he had been libelled by the applicant . It appears that in DATE the indictment was sent to the court , which at some point acquitted the applicant .", "The investigators into the kidnapping of PERSON suspected and arrested several other men in addition to PERSON . Later , CARDINAL of them were charged with other kidnappings ; CARDINAL of them was found guilty and sentenced in DATE ; and CARDINAL others were charged in absentia and their names put on the wanted list . CARDINAL of them told the investigators that the applicant had threatened to denounce him to the law - enforcement bodies in order to give incriminating evidence against PERSON . and PERSON", "On DATE the criminal investigation was closed regarding the part concerning the actions of the officers of the PERSON pretrial detention centre , on grounds of absence of corpus delicti .", "On DATE the investigator from the department of ORG in the LOC closed the criminal proceedings against PERSON . for want of evidence . He noted that it had turned out to be impossible to identify the persons who had abducted and killed PERSON ; that the conclusions of the graphology expert reports were contradictory and could not be construed as a single body of incriminating evidence against Mr PERSON . ; that by the time of the abduction he had no longer been employed at the prosecutor 's office for DATE and there was no evidence that he had continued to be aware of or to influence the proceedings ; that DATE he had remained in GPE , as confirmed by witness statements and documents ; that the allegations that he had obtained money or property from the PERSON family had proved to be unfounded ; and , finally , that there were reasons to suspect that the applicant had personal motives , since he was being prosecuted for libel against the PERSON family and had threatened a witness in order to obtain evidence incriminating PERSON .", "On DATE ORG informed the applicant that on DATE the investigation in criminal case no . CARDINAL had been transferred to the department of ORG office in LOC . According to the letter , PERSON . had absconded from the authorities and his name had been put on the wanted list .", "On DATE the applicant and his relatives complained of the ineffectiveness of the investigation in criminal case no . CARDINAL to ORG . In his letter the applicant also alleged that some of the evidence in the criminal case - file materials had been forged by the investigators .", "On DATE ORG replied to the applicant . The letter stated that in connection with the forgery of the evidence in criminal case no . CARDINAL - CARDINAL , they had opened criminal case no . CARDINAL/CARDINAL - CARDINAL on DATE .", "On DATE ( the letter has CARDINAL dates ) the department of ORG in the LOC informed the applicant that on DATE the authorities had terminated the criminal proceedings against Mr PERSON . owing to the failure to prove his involvement in the abduction of PERSON . On DATE the investigation had been suspended owing to the failure to identify the perpetrators .", "On DATE the applicant and his relatives wrote to the Prosecutor General complaining of the ineffectiveness of the criminal investigation into the murder .", "On DATE the applicant 's family received a letter from ORG . The letter stated that on an unspecified date the investigation of criminal case no . CARDINAL - CARDINAL had been resumed .", "On DATE the applicant complained about his brother 's murder to the President of ORG of GPE . In his letter he complained of the ineffectiveness of the investigation into the crime and the decisions suspending it . The applicant requested the authorities to resume the investigation and carry out an additional examination of the evidence in criminal case no . CARDINAL - CARDINAL . In particular , he complained that the investigation had failed to compile a composite sketch of the CARDINAL men who had collected his brother from the pre - trial detention centre and to compare the handwriting of the kidnappers with those of all the officers of ORG in ORG and ORG , as well as of the regional department of the ORG in LOC .", "On DATE ORG , upon the applicant 's request , forwarded him a copy of the decision of DATE suspending the investigation in criminal case no . CARDINAL - CARDINAL .", "It does not appear that the applicant or the investigators took any steps DATE and DATE .", "On DATE the applicant 's representatives wrote to ORG . They requested information concerning the progress reached in the investigation in criminal case no . CARDINAL - CARDINAL and enquired whether the investigators had carried out any expert or forensic examinations in the case . It does not appear that the applicant 's representatives received any response to this request .", "On DATE the Deputy Prosecutor General quashed the decision suspending the proceedings . On DATE Mr PERSON . was placed under an obligation not to leave his place of residence in GPE .", "In DATE the investigator questioned the applicant , his sister and his mother in GPE . They denied that PERSON had any connections to illegal armed groups in GPE or in PERSON , pointed out that he had never been charged with any such crime before and affirmed that there was no evidence to support that allegation . They again insisted that PERSON . had been connected with the abduction and murder of their brother , in view of his involvement in the arrest and beatings .", "On DATE the father of PERSON and PERSON gave a statement in which he denied that his family had ever given any money or valuables to PERSON . or his family .", "NORP In his submissions the applicant also described attacks by unspecified persons on himself , his relative and his house .", "Accordingly , the applicant submitted that on DATE he and PERSON had been wounded during an attempt to arrest them by officers from the RUBOP of Kabardino - Balkaria . On DATE the ORG prosecutor 's office opened a criminal investigation into violent acts against public officers .", "NORP However , in DATE the investigation was adjourned in view of the failure to identify the suspect . In DATE criminal charges against the applicant were dropped ; PERSON was granted victim status .", "The applicant and PERSON sought damages for the injuries and moral suffering inflicted by the ORG and ORG . They also contested the lawfulness of the order to deliver the applicant to an investigator which had served as the basis for the attempt to arrest him .", "NORP In DATE the ORG refused to grant their claim , referring to the absence of any definitive outcome of the criminal investigation and the applicant 's failure to appeal against the decision to adjourn the proceedings . An appeal by the applicant was dismissed without consideration for failure to observe the requisite time - limits ; he tried to have the time - limits restored but it appears that his complaint to ORG remained unexamined .", "No complaints were brought following those developments , but the applicant relied on the above proceedings to explain his inaction DATE vis - à - vis the domestic criminal investigation into his brother 's murder .", "The applicant submitted , referring to numerous publications concerning the subject , that following the events described above Mr PERSON . had become a well - known political figure in PERSON . As a successful businessman and journalist , he had founded an Internet site ( www . Ingushetiya.ru ) in DATE which had quickly become an important media forum for the opposition forces . In DATE Mr PERSON . had become one of the organisers of the “ I did not vote ” campaign aimed at denouncing electoral fraud in ORG during the NORP presidential elections . In DATE a district court in GPE classified the site as “ extremist ” and demanded its closure . The order could not be implemented because the site was hosted in GPE .", "On DATE Mr PERSON . was detained on arrival at the airport in GPE , ORG , and shot dead in the police car . In DATE a court in ORG found CARDINAL officer of ORG guilty of causing death by negligence and gave him a suspended sentence . In DATE this officer was killed by unknown gunmen in ORG . On DATE another former coowner of the ORG site , Mr PERSON , was killed by unknown gunmen in NORP ." ]

[ "2" ]

[]

[]

[ "2" ]

[]

[]

[ "The applicant , Mr PERSON , is a GPE national , who was born in DATE . He is represented before the ORG by Mr L.C.M. PERSON , a lawyer based in GPE who is not licensed to practise but who provides legal assistance and representation in cases where representation by a licensed advocate is not prescribed by law .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE , at QUANTITY , police officers in GPE stopped a motor car and tested the driver ’s breath for alcohol . There being an indication that the driver ’s breath might contain more alcohol than was legally permitted , the driver was taken to a police station and subjected to a more precise test . This second test showed that the driver ’s breath did in fact contain a higher proportion of alcohol than permitted .", "The driver of the car gave the applicant ’s name . It appears from a police report dated after the event , which the applicant claims is inaccurate , that the driver of the car was found in possession of a driving licence or other identity document in the applicant ’s name containing a photographic likeness of the bearer .", "The driver of the car confessed that he had drunk CARDINAL glasses of beer . He was sent home with a summons to appear on DATE before the single - judge chamber ( politierechter ) of ORG ( arrondissementsrechtbank ) of GPE on a drink - driving charge .", "No one appeared at the hearing on DATE . The applicant was convicted in absentia of drink - driving and sentenced to pay a fine of MONEY ( NLG ) . The applicant claims , essentially , that he only became aware of this when he was ordered to pay the fine . He lodged an appeal against his conviction and sentence to ORG ( gerechtshof ) of GPE .", "ORG decided to consider the drink - driving charge and the charge of driving an uninsured car – of which the applicant had been convicted in separate proceedings – jointly . It held hearings on DATE , DATE and DATE and DATE , at which , for various reasons not relevant to the case before the ORG , the applicant did not appear . At the hearing on DATE , the applicant ’s counsel , who was present , pleaded on the applicant ’s behalf that another person had in fact been arrested on DATE and had fraudulently pretended to be the applicant . He invited the police officers who had been called as witnesses to identify the applicant from a series of photographs . ORG , however , decided that the applicant ’s presence in person was required to establish whether or not he was in fact the person arrested on DATE .", "A further hearing was set for DATE . By letter of DATE , the applicant informed ORG that he did not intend to appear . He stated that he did not trust the police officers to make a correct identification except in a confrontation attended by sufficient safeguards , for example a line - up of himself and other persons of similar appearance .", "The hearing proceeded on DATE in the applicant ’s absence .", "ORG gave judgment on DATE . It declared the applicant ’s appeal against the first - instance conviction of drink - driving inadmissible as out of time . Its reasoning included the following :", "“ In the opinion of ORG the original summons for the [ single - judge chamber of ORG ] hearing of DATE was handed to the suspect in person on DATE . It follows that the suspect should have appealed within DATE of the judgment delivered on DATE . However , the suspect only appealed on DATE , so the suspect ’s appeal must be declared inadmissible .", "ORG is of the opinion that it was the suspect to whom the original summons was handed . ORG considers it relevant in this respect that , as appears from the official report drawn up on DATE by Police Sergeant S. ... , the suspect identified himself to the reporting police officers by means of an identity document bearing a photographic likeness resembling the suspect . ORG has further found that the [ record of ] the interrogation of the suspect , to which he was subjected on DATE , is signed with a signature which in ORG opinion is sufficiently similar to the CARDINAL which the suspect has placed on the letter of authority with which he has authorised the lodging of an appeal ... and on the receipt belonging to the official record of the delivery of the notification of the pronouncement of the judgment of the single - judge chamber of ORG ... ”", "The applicant ’s counsel , a licensed advocate , lodged an appeal on points of law ( cassatie ) to ORG ( PERSON ) on the applicant ’s behalf . Mr PERSON took over the applicant ’s representation from the advocate , it being possible at the time for any person duly authorised in writing to act before ORG in criminal cases , and gave his own address as the applicant ’s elected domicile for correspondence .", "The Advocate General ( advocaat - generaal ) to the ORG court submitted an advisory opinion to ORG on DATE . A copy was transmitted to the last known address of the applicant . However , as appears from the public records , the applicant had already moved to another country on DATE .", "ORG gave judgment on DATE dismissing the applicant ’s appeal .", "On DATE the Registrar of ORG wrote to PERSON PERSON in the following terms :", "“ In the above case , in which you act as the representative of the suspect pursuant to a specific letter of authority , the Advocate General PERSON submitted an advisory opinion ( enclosed ) on DATE . This advisory opinion was sent to the suspect by letter of CARDINAL DATE , the latter being offered the possibility to respond . This possibility was not made use of . Subsequently , ORG dismissed the appeal by its judgment of DATE .", "You have rightly pointed out to the administrative staff of ORG that you were not sent a copy of the advisory opinion , as was required by ( former ) Article CARDINAL § CARDINAL of LAW . This lapse is regretted and I offer you my apologies for it . Now that ORG has given its irrevocable judgment ( onherroepelijk uitspraak heeft gedaan ) , it would be entirely pointless to give you the opportunity to react at this stage . That will therefore not be done .", "Unfortunately , there is now nothing more to be done than to acknowledge that a mistake was made towards you which should not have been allowed to occur . ... ”" ]

[]

[]

[]

[]

[]

[]

[ "On DATE GPE Bezirkshauptmannschaft ) convicted the applicant twice under LAW ( Kraftfahrgesetz ) for failure to comply with the instructions of the ORG to inform them who had used his car on specific DATE ( Lenkerauskunft ) , and sentenced him , on each offence , to a fine of CARDINAL ORG or CARDINAL days’ imprisonment in default . The ORG noted that the applicant had given information but found it to be incorrect .", "On DATE the applicant filed an appeal against this decision with ORG ( Unabhängiger Verwaltungssenat ) . He complained that ORG had incorrectly applied the law and failed to sufficiently assess the evidence before it or clarify why the information he had given was untrue . The applicant did not request a hearing , nor did he expressly waive this right . No oral hearing was held .", "On DATE ORG dismissed the appeal on the merits but reduced the sentence .", "On DATE the applicant filed a complaint with ORG ) . He complained under LAW that ORG had failed to hold a hearing . Such a hearing would have been necessary because his appeal was not limited to points of law . He had also criticised ORG assessment of evidence . Therefore an oral hearing would have been necessary . In such a hearing ORG could have properly assessed this evidence , which had already been obtained at first instance , as well as fresh evidence .", "On DATE the ORG declined to deal with the applicant ’s complaint on the ground that it did not have sufficient prospects of success . Upon a request filed by the applicant on DATE , ORG transferred the case to ORG ( Verwaltungsgerichtshof ) .", "On DATE ORG , relying on Section DATE of LAW ( PERSON ) , declined to deal with the applicant ’s case , finding that it did not raise important legal issues . On DATE this decision was served on the applicant ’s lawyer .", "The relevant provisions of LAW ( Bundes - Verfassungs Gesetz ) concerning the establishment of ORG which entered into force on DATE read as follows :", "“ It is the task of ORG in the regions and ORG in GPE to ensure the lawfulness of the entire public administration . ”", "“ ( CARDINAL ) ORG are composed of a president , a deputy president and a sufficient number of further members . Its members are appointed by ORG for a period of DATE . ...", "( CARDINAL ) In fulfilling their tasks under ORG and PERSON the members of ORG are not bound by any instructions . The court business shall be distributed among the members in advance for the period provided for in the regional legislation . A matter which according to such a schedule is the business of CARDINAL member may only be withdrawn from him or her in case of impediment by a decision of the president .", "( CARDINAL ) Before the end of their term of office members of ORG may only be removed from office in the cases specified by the law and upon a decision of ORG itself .", "... ”", "GPE on ORG , ORG no . CARDINAL/CARDINAL ( ORG über den PERSON , LGBl . CARDINAL/CARDINAL ) , repeats to a large extent the provisions of LAW , although the term of office of the members of ORG is indefinite ( LAW ) .", "Section DATE of LAW ( PERSON ) reads as follows :", "\" ORG may decline to deal with a complaint against a decision of an ORG in an administrative criminal case if no prison sentence or a fine exceeding AS CARDINAL has been imposed and ORG decision would not involve the determination of a legal question of fundamental importance . A legal question of fundamental importance is involved in particular if the challenged decision of ORG is at variance with ORG case - law , if no such case - law exists or if the legal questions at issue have not been answered uniformly in ORG case - law . \"", "Section CARDINALe of the Code of Administrative Offences ( GPE ) , as far as relevant , reads as follows :", "“ CARDINAL . In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed , a hearing must only be scheduled if this is expressly requested in the appeal .", "A hearing need not be held if the parties expressly waive their right to a hearing . The parties may express such a waiver up to the beginning of the hearing . ... ”" ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was arrested and placed in pre - trial detention on suspicion of having participated in smuggling NORP nationals into GPE .", "In the first part of its bill of indictment dated DATE ( running to a total of CARDINAL pages ) , ORG set out the charges ( GPE , compare LAW , first sentence , of LAW in paragraph CARDINAL below ) against the applicant and CARDINAL co - defendants , including his sister ( pp . CARDINAL ) . It accused the defendants of numerous counts of human trafficking , committed DATE in exchange for money and as members of a gang . In addition to that , the applicant and his sister were charged with planning a robbery .", "In the part of the indictment setting out the essential results of the investigations ( wesentliches PERSON , compare LAW , first sentence , of LAW in paragraph CARDINAL below ) , the prosecution set out in detail the exact course of events for each charge of human trafficking and summarised the testimonies of the witnesses and the contents of the intercepted telecommunications which were to prove the charges ( pp . CARDINAL of the indictment ) . It took the view , inter alia , that the applicant had concluded a fictitious contract of employment with his sister in order to pretend to have a legal income to support his family . Moreover , it stated that it would have to be taken into consideration as an aggravating factor when sentencing the applicant that he had involved his young children in his criminal activities .", "On DATE ORG opened the trial against the applicant and CARDINAL co - defendants , including his sister . The court , sitting as a grand criminal division ( große Strafkammer ) , was composed of CARDINAL professional judges and CARDINAL lay judges . CARDINAL substitute professional judge and CARDINAL substitute lay judges also attended the hearings . The prosecution read out the charges against the applicant and his co - defendants at this hearing ( see Article CARDINAL § CARDINAL of LAW in paragraph CARDINAL below ) .", "On DATE ORG , following her confession , separated the proceedings against the applicant ’s sister from those against the applicant . The hearings in both sets of proceedings continued to be conducted by the same professional and lay judges .", "On DATE , in the course of the separated proceedings against the applicant ’s sister , the lay judges and their substitutes were informed of the essential results of the prosecution ’s investigations against all ( CARDINAL ) defendants by being given a copy of this part of the indictment which they were to read outside the main hearing . The professional judges of ORG had considered it necessary to inform the lay judges of the contents of the essential results of the investigations as the applicant ’s sister had stated that she generally confessed to the offences described therein , including their manner of execution , without , however , being willing to make any further , more detailed statement . ORG subsequently convicted the applicant ’s sister according to the confession she had made of numerous offences of human trafficking in exchange for money and as a member of a gang .", "On DATE ORG informed the applicant in the course of his hearing ( the fifteenth hearing before that court in his case ) that the lay judges had been given copies of the part of the bill of indictment containing the essential results of the investigations in the proceedings against his sister . The applicant thereupon lodged a motion for bias against the CARDINAL lay judges and their CARDINAL substitutes . He argued that the lay judges could no longer follow the trial without prejudice after having taken note of the entire pre - assessment of the evidence by the prosecution . Pursuant to LAW ( see paragraph CARDINAL below ) it was expressly prohibited to disclose the essential results of the investigations to lay judges .", "On DATE the CARDINAL lay judges thereupon made a separate formal declaration in writing in identical terms . They stated that in the proceedings against the applicant ’s sister , the latter had confessed that the accusations against her as set out in the prosecution ’s essential results of the investigations were well - founded . The applicant ’s sister , represented by counsel , had agreed that the lay judges were informed of the contents of these results by being provided with a copy of this part of the indictment , which they had read .", "The lay judges further explained that prior to being given a copy of this document , the president of the chamber had informed them that , as a rule , this part of the indictment was not disclosed to lay judges as it contained the prosecution ’s view at the end of the investigation proceedings and was not to be confused with the taking of evidence in the main hearing . Moreover , the president had pointed out to them that the proceedings against the applicant and those against his sister had to be assessed separately . They were aware of this , able to distinguish between the taking of evidence in both sets of proceedings and knew that the essential results of the investigations , of which they had taken note in the proceedings against the applicant ’s sister , were not relevant for the taking of evidence in the proceedings at issue . Consequently , they were not biased against the applicant . They further stated that the submissions in writing were their personal declarations .", "On DATE the CARDINAL professional judges of ORG dismissed the applicant ’s motion for bias as ill - founded . They argued that , assessing the case in a reasonable manner , there were no grounds to doubt the lay judges’ impartiality ( compare Articles CARDINAL § DATE of the Code of Criminal Procedure in paragraph CARDINAL below ) . Having regard to the diverging views taken by the criminal courts and by legal writers on the question as to whether lay judges could be provided with the essential results of the investigations ( see paragraph CARDINAL below ) , they took the view that LAW ( see paragraph CARDINAL below ) presupposed that lay judges took note of the contents of the case file . As the lay judges had explained in their declarations made following the applicant ’s complaints of bias , they were aware , due to the explanations given by the professional judges , that the copy of the part of the bill of indictment containing the essential results of the investigations expressed the view taken by the prosecution . The lay judges understood that this document was not to be confused with the results of the main hearing , on which alone the judgment should later be based . Therefore , the defendant had no reason to fear that the lay judges could consider their reading of the document in question part of the proceedings against him .", "On DATE the applicant lodged a complaint of bias against the CARDINAL professional judges . He argued that they had failed to take account of his fears that the lay judges were no longer impartial and that the presiding judge had formulated the written declarations made by the lay judges . The court dismissed this complaint as inadmissible on DATE , arguing that it was in substance an appeal against the decision of DATE against which however no appeal lay to ORG .", "In a total of CARDINAL hearings , ORG read out numerous TIME of tape recordings of intercepted telecommunications , which had been made in NORP and translated into NORP , and heard many witnesses , some of whom had been named by the applicant , as well as CARDINAL experts on the question of his mental condition .", "On DATE ORG , while acquitting him of having planned a robbery , convicted the applicant , inter alia , of human trafficking , acting on a commercial basis and as a member of a gang , and sentenced him to DATE and CARDINAL months’ imprisonment . It found that the applicant had been party to numerous offences of human trafficking by storing and handing over passports belonging to the persons smuggled into GPE by other gang members . It based its findings on the submissions of the applicant , who had admitted having stored and handed over passports in cooperation with his sister . Moreover , the court considered the testimony of a police officer who had reported on the results of the interception of the telephone conversations made from the applicant ’s phone and that of the café he ran with his sister . Furthermore , a witness who had been smuggled into GPE had testified that he had picked up his passport at the applicant ’s café . When searching his home , the police had found CARDINAL NORP passports . In fixing the sentence , ORG considered as a mitigating factor that the applicant had acted also with the intention of helping his fellow countrymen who had become refugees following the ethnic persecution of residents of NORP origin in GPE .", "The applicant was released from prison DATE .", "On DATE the applicant lodged an appeal on points of law . He claimed that the lay judges adjudicating on his case had been biased . He submitted that LAW only allowed documents serving as evidence to be brought to the notice of lay judges . However , the essential results of the investigations were not such documents within the meaning of that LAW Pursuant to LAW , it was expressly prohibited to allow lay judges to take note of this part of the indictment . The fact that it was impossible for the lay judges to distinguish between the proceedings against the applicant and those against his sister was illustrated by the fact that even in the judgment drafted by the professional judges the CARDINAL separate proceedings had been confused ( by referring to the wrong person as being the defendant ) .", "NORP Moreover , the applicant claimed that ORG had not fulfilled its duty to investigate the matter . In particular , it had not played the recorded telephone conversations in the main hearing and had merely questioned a police officer on their contents instead . In addition , ORG had failed to take into consideration relevant submissions of an expert on the cultural background and situation in GPE .", "On DATE ORG , without giving further reasons , dismissed the applicant ’s appeal on points of law as ill - founded .", "On DATE the applicant lodged a complaint with ORG . Referring to his submissions before ORG , he claimed that his trial before ORG had been unfair and that his right to liberty as guaranteed by LAW had been infringed .", "On DATE ORG declined to consider the applicant ’s constitutional complaint .", "Following an order issued by ORG , the applicant served the remainder of his prison sentence from DATE . In DATE he was again released from prison on probation , the remaining part of his sentence having been suspended .", "Article CARDINAL of the Code of Criminal Procedure regulates the contents of the bill of indictment . Pursuant to LAW , first sentence , the bill of indictment shall indicate the accused , the criminal offence he is charged with , the time and place of its commission , its statutory elements and the applicable criminal provisions ( the charges ) . Moreover , the evidence , the court before which the main hearing shall be held and the defence counsel shall be indicated ( LAW , second sentence ) .", "According to LAW , first sentence , of LAW , the essential results of the investigations shall also be presented in the bill of indictment .", "ORG , when sitting as a grand criminal division , are composed of CARDINAL professional judges , including the president , and CARDINAL lay judges ( Article CARDINAL § CARDINAL of LAW – Gerichtsverfassungsgesetz ) . Pursuant to LAW lay judges exercise full judicial function during the main hearing and have the same voting rights as professional judges in so far as there are no exceptions provided for by law .", "Article CARDINAL § QUANTITY of LAW provides that a judge may be challenged for fear of bias if there is reason to doubt his impartiality . The provision applies , mutatis mutandis , to lay judges ( LAW ) .", "The Directives for Criminal Proceedings and Proceedings Concerning Regulatory Offences ( PERSON für das PERSON RiStBV ) set out recommendations for the prosecution authorities concerning the conduct , in particular , of criminal proceedings . These Directives are not statutory provisions , but administrative guidelines agreed upon by ORG of all Länder .", "Article CARDINAL § CARDINAL of these Directives provides that the bill of indictment may not be disclosed to the lay judges . However , notably in proceedings concerning extensive or complex facts , they may be provided with a copy of the charges during the main hearing after these have been read out in court .", "Article CARDINAL of the Code of Criminal Procedure regulates the course of the trial . After the presiding judge has ascertained that the defendant and his counsel as well as witnesses and experts summoned are present and has questioned the defendant on his personal situation ( § § CARDINAL and CARDINAL ) , the Public Prosecutor shall read out the charges ( § CARDINAL ) .", "According to LAW , title deeds and other documents serving as evidence shall be read out at the main hearing . LAW CARDINAL of LAW provides that the reading out may be dispensed with if the professional and lay judges have taken note of the wording of the title deed or document and if the other participants had an opportunity to do so ( so - called self - reading procedure – Selbstleseverfahren ) .", "In its judgment of DATE ( no . CARDINAL StR CARDINAL/CARDINAL , ORG ) ( BGHSt ) , vol . CARDINAL , pp . CARDINAL et seq . , CARDINAL - CARDINAL ) , ORG reiterated :", "“ Access to case files for lay judges – just as for associate professional judges DATE is not regulated by law . It appears that until now the courts only dealt with the specific case of providing a report by ORG on the essential results of the investigations to lay judges , which they considered as unlawful . ORG of ORG , referring to the legislator ’s will as apparent from the law ’s drafting history , specified in this respect that providing [ the report to lay judges ] contravened the principles of oral proceedings and immediacy . Lay judges risked mixing up their impressions from that report with those from the main hearing whereas professional judges , as a rule , were able to distinguish between the CARDINAL sources of information due to their training and professional experience ( see ORG of ORG of the German PERSON ( RGSt ) , vol . CARDINAL , pp . CARDINAL , CARDINAL ) . ORG has until now shared this legal opinion ( BGHSt , vol . CARDINAL , pp . CARDINAL et seq . ; ... BGHSt , vol . CARDINAL , pp . CARDINAL et seq . ... ; ORG ( PERSON ) , DATE , p. CARDINAL ) . However , ORG , in an obiter dictum , raised doubts as to whether it would further follow these precedents , because different treatment for professional and lay judges was not provided for by law and no convincing reasons could be given for it . Lay judges , who were called upon to decide on all difficult factual and legal issues together and of equal rank with the professional judges , could well be believed to be capable of understanding the sense and meaning of the bill of indictment ( ORG , judgment of DATE , no . CARDINAL StR CARDINAL/CARDINAL ) .", "On the contrary , the majority of legal writers DATE consider granting lay judges access to the case files to be lawful ...", "The ORG does not have to decide in the present case whether the existing practice of ORG on providing the essential results of the investigations to lay judges can be upheld or whether the doubts expressed by ORG and the dissenting opinion of legal writers have to be preferred , what it indeed tends to do . In any event , it considers providing TIME of tape - recordings as a means to facilitate the better understanding of the taking of evidence about intercepted telecommunications in the main hearing to be lawful . It may adjudicate on this issue ... because providing such documents is vitally different from taking note of the essential results of the investigations , which essentially involves the evaluation of the suspicion of a criminal act on the part of ORG . ”" ]

[]

[]

[]

[ "6" ]

[ "6-1" ]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer with ORG in GPE . The respondent Government were represented by Mr P. Laptev , former Representative of GPE at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was a professor and a research scientist at ORG .", "On DATE ORG of ORG of GPE ( “ the ORG ” ) opened a criminal investigation into disclosure of ORG secrets , an offence under LAW .", "On DATE the applicant 's home and office were searched and a body search was carried out on his person . Reports containing technical information on NORP - made missiles and related engineering drawings were found during the searches .", "On DATE the applicant was charged with disclosure of ORG secrets , an offence under LAW . On DATE the charge was amended to that of high treason ( LAW ) . The applicant was accused of having transmitted CARDINAL reports containing ORG secrets to PERSON , a GPE citizen and retired naval officer employed by ORG . He was also accused of collecting classified engineering drawings which he supposedly intended to transmit to PERSON had allegedly received remuneration for his services .", "In DATE the applicant had a heart attack . The proceedings against him were stayed pending his convalescence .", "On DATE ORG found PERSON guilty of espionage under LAW and sentenced him to DATE imprisonment in a high - security colony . On DATE PERSON was amnestied by a special decree of the NORP President , expelled from GPE and prohibited from re - entering the country .", "On DATE the proceedings against the applicant were resumed .", "At the trial the applicant testified that he had participated in a cooperation project with ORG . He admitted that he had communicated information to PERSON in connection with that project . He insisted , however , that that information had been transmitted through the official university channels and had not contained ORG secrets . He denied receiving any remuneration . He further confirmed that he had obtained engineering drawings from PERSON but claimed that they had been necessary for his work . He had had no intention of making them available to Mr P.", "The court questioned several participants in the cooperation project with ORG . They testified that the applicant had collected information on the missiles , had personally prepared CARDINAL reports describing the technical characteristics of those missiles and had transmitted the reports to PERSON had received remuneration for his work .", "The prosecutor then requested the court 's permission to read out the statements made by PERSON during his trial and statements that PERSON had made as a prosecution witness during the pre - trial investigation . It was impossible to obtain PERSON attendance as he had been expelled from GPE and had been prohibited from re - entering the country . Mr I. had refused to appear , referring to his unstable condition following his heart attack and a medical opinion that he was not fit to appear in court . The applicant did not object to the reading out of PERSON statements . However , he made an objection to admitting PERSON depositions in evidence .", "The court allowed the prosecutor 's request and the statements by PERSON and PERSON were read out . PERSON confirmed that he had received reports containing technical information on the missiles from the applicant and had paid him for that task . Mr I. testified that the applicant had obtained engineering drawings from him in order to pass them on to PERSON", "The court further examined expert reports submitted by the prosecutor . The experts established that the reports transmitted by the applicant to PERSON and the engineering drawings found on the applicant contained classified information .", "Finally , the court listened to audio recordings and watched video recordings of the applicant 's meetings with PERSON During the meetings the applicant had received instructions from PERSON as to the nature of the information to be collected and transmitted . The applicant and PERSON had also discussed the amount of remuneration the applicant was to receive for his services .", "On DATE ORG found the applicant guilty of high treason committed in the form of espionage , an offence under LAW . Relying on the statements by the applicant 's colleagues , PERSON depositions and the audio and video recordings , the court found that the applicant had personally transmitted reports containing information on NORP - made missiles to PERSON and had received money for doing so . The classified nature of the communicated information had been established by the experts . Finally , referring to the testimony by PERSON , the court found that the applicant had collected engineering drawings with the intention of transmitting them to PERSON It considered that the applicant 's actions had undermined the external security of GPE . Having regard to the applicant 's age and frail health , the court sentenced him to DATE imprisonment conditional on DATE probation .", "Both the prosecution and the defence appealed against the judgment . The applicant submitted , in particular , that PERSON had not been summoned as a witness against him . He had not had any procedural status in the proceedings and the trial court had been barred from relying on his statements . He further complained that the trial court had failed to secure the attendance of the prosecution witness Mr I.", "On DATE ORG of GPE upheld the judgment of DATE . As to the alleged procedural defects , it found as follows :", "“ ... The case materials were reviewed with sufficient thoroughness ; in particular , an assessment of the statements by PERSON P[. ] , whose conviction had become final and whose depositions were read out in accordance with LAW , was made ; there have been no substantial breaches of the rules of criminal procedure in the trial ... ”", "ORG also quoted the deposition by the witness PERSON , without indicating the reasons for his non - attendance .", "LAW of the Russian Federation provides as follows :", "“ High treason , that is , espionage , disclosure of ORG secrets or assistance otherwise provided to a foreign ORG , a foreign organisation or their representatives for ... subversive activities undermining the external security of GPE , committed by a NORP national , shall be punishable by DATE imprisonment and confiscation of property ... ”", "“ Communication of State secrets , as well as their collection , theft or storage with a view to communicating them to a foreign ORG , a foreign organisation or their representatives , and also communication or collection of other items of information at the request of a foreign intelligence service , for the purpose of using them to harm the external security of GPE , committed by a foreign national or a stateless person , shall be punishable by DATE imprisonment . ”", "“ Disclosure of ORG secrets not amounting to high treason , by a person who has been granted access to ORG secrets or to whom such secrets have become known in the course of his service or work ... , shall be punishable by DATE arrest or by DATE imprisonment with or without a prohibition on occupying certain positions ... ”", "LAW defines evidence as any information on the basis of which a court establishes the existence or absence of circumstances that have to be proved in a criminal case ( LAW § CARDINAL ) . Admissible evidence includes ( i ) statements by the accused or defendant ; ( ii ) statements by the victim or witness ; ( iii ) conclusions and statements of an expert ; ( iv ) material evidence ; ( v ) records of investigative or judicial steps ; and ( vi ) other documents ( LAW ) .", "Circumstances established by a final judgment may be accepted by the court without further inquiry if they do not raise doubts in the judge 's mind . However , such judgment can not prejudge the guilt of individuals who have not participated in the proceedings leading to that judgment ( LAW .", "Witnesses are to be examined directly by the trial court ( LAW ) . Statements given by the victim or a witness during the pre - trial investigation may be read out with the consent of the parties in CARDINAL cases : ( i ) if there is a substantial discrepancy between those statements and the testimony before the court ; or ( ii ) if the victim or witness has failed to appear in court ( Article CARDINAL ) .", "The judgment may only be founded on the evidence that has been examined at the trial ( LAW DATE ) ." ]

[]

[]

[]

[]

[]

[]

[ "ORG Mr PERSON is a NORP citizen who was born in DATE ; he lives at Verviers and is a company director .", "On DATE , a private limited company ( \" société de personnes à responsabilité limitée - \" SPRL Lamy \" ) of which he was the manager and which built industrial premises filed a declaration of insolvency with the registry of ORG , and the court adjudged the company bankrupt on DATE .", "ORG On DATE , an investigating judge of the Verviers tribunal de première instance ( regional court of first instance ) questioned PERSON and issued a warrant for his arrest .", "The warrant set out several grounds : the seriousness of the offences and of the adverse effects on public order and safety ; the scale of the bankrupt company ’s liabilities ( MONEY BF ) ; the needs of the investigation ; the accused ’s deliberate and unmistakable attempts to deprive the creditors of their security ; his expenditure ; and the risk of his absconding abroad .", "On the back of the warrant the charges listed against the applicant were :", "\" I. That , being the majority partner in PERSON at ORG , which was adjudged bankrupt by ORG on CARDINAL , and himself a trader adjudged personally bankrupt by the same court on DATE , he did at Verviers , PERSON or elsewhere in the district or GPE , within the limitation period , commit :", "( a ) ... fraudulent bankruptcy by , among other things :", "misappropriating or concealing assets worth over CARDINAL F ; and", "withholding his books or other accounting documents or fraudulently removing , deleting or altering their content ;", "( b ) ... ordinary bankruptcy by , among other things :", "incurring excessive personal and household expenditure ;", "not giving notice of cessation of payments within the time - limit prescribed in LAW ;", "failing , in the late notice , to give the explanations and accurate information required by LAW ;", "paying or favouring some creditors to the detriment of the creditors as a whole , after cessation of payments .", "II . That as principal , joint principal or accessory , at Verviers or elsewhere in the GPE DATE , he did on several occasions fraudulently or maliciously :", "( a ) forge notarised and public documents , private documents and bank or commercial documents by means of false signatures , or by forging or altering documents or signatures , or by fabricating or inserting terms , provisions , obligations or discharges in documents , or by adding or altering clauses , statements or facts which it was the purpose of the documents to set out and record , in that he inter alia :", "( i ) submitted a false balance sheet on CARDINAL.CARDINAL.CARDINAL ;", "( ii ) kept a separate set of false accounts of his business with GPE and GPE among others ;", "( b ) use these documents knowing them to be false ;", "( c ) fraudulently misappropriate or , to the the detriment of another , part with bills of exchange , money , merchandise , promissory notes , receipts or documents which he had been given on condition he returned them or used them for specific purposes , in particular :", "( i ) CARDINAL F due in GPE and ,", "( ii ) over QUANTITY to the detriment of SPRL PERSON ( sale of civil - engineering equipment ) ;", "( d ) obtain , in order to appropriate property of another , funds , movables , obligations , receipts or discharges , by using assumed names or false status or making other false pretences to induce belief in the existence of fictitious businesses , powers or credit , engender hope or apprehension of success , or otherwise deceive in order more particularly to :", "( i ) obtain CARDINAL F from the LOC authority to the detriment of PERSON .", "III . That at Verviers or elsewhere in the GPE DATE , being a trader , he did carry on a professional activity for which he was not registered in ORG . \"", "After receiving a copy of the warrant , PERSON was taken into custody at the remand prison at Verviers .", "ORG On DATE , the applicant , assisted by his lawyer , appeared before the chambre du conseil of the Verviers tribunal de première instance . His counsel filed pleadings in which he disputed in particular that there were \" serious and exceptional circumstances \" within the meaning of section CARDINAL of the Act of DATE ( see paragraph CARDINAL below ) . He also handed over a file concerning , inter alia , the proceedings relating to the applicant ’s personal bankruptcy ( see paragraph CARDINAL below ) .", "ORG After hearing the investigating judge , Assistant Crown Counsel and the defence , the chambre du conseil upheld the arrest warrant . It accepted the reasons given in the warrant and held that the interests of public safety required that the applicant should continue to be held in custody .", "ORG On DATE , PERSON challenged the chambre du conseil ’s order in ORG of ORG . He argued that no reasons were given for the order , the circumstances noted by the chambre du conseil were not such as to justify his detention , and the warrant of DATE was unlawful as it did not bear any signature and was wrongly dated ( DATE ) .", "The prosecution filed pleadings on DATE .", "ORG On DATE , ORG set aside the order on grounds of failure to reply to the applicant ’s submissions . At the same time , however , it decided that the arrest warrant should remain in force .", "As regards whether there was sufficient evidence of guilt and of serious and exceptional circumstances relating to public safety , ORG founded its judgment on the following reasons :", "\" It is to be noted that even in his own account of the state of the firm ’s affairs , given in the form of submissions , the accused conceded that the balance sheet of DATE was inaccurate , although he denied any fraudulent intent and stated that after verification of sums owed to the firm its liabilities came to MONEY , against which he set primarily the expected outcome of a hypothetical action against a third party , whose value he said could ‘ reasonably’ be put at MONEY ;", "Account must be taken of his admissions concerning the irregular transactions referred to in report CARDINAL of the Verviers police and in the record of his examination by the investigating judge on DATE , corroborated by the admissions of the co - accused PERSON , in police report CARDINAL , although the accused now denies their extent ;", "The foregoing provides sufficient evidence of guilt to justify the impugned arrest warrant , given the extremely large sums involved , the needs of the investigation , which the accused disputed to no avail , and the risk of his attempting to evade justice despite his protestations of good faith and the good intentions he professes - all considerations which are set out in the warrant appealed against , which are serious and exceptional , and which required his arrest in the interests of public safety . \"", "As to the alleged unlawfulness of the warrant , ORG noted , in the first place , that the copy given to the applicant mentioned that the original identified the investigating judge and was signed by him . The court added : \" It [ could ] not be seriously questioned ... that the copy given to the [ applicant ] bore DATE instead of CARDINAL DATE purely as a result of a clerical error of no consequence \" . The court concluded that these circumstances in no way made the arrest arbitrary and could not have prejudiced the rights of the defence .", "Mr PERSON appealed on points of law to ORG on DATE , putting forward CARDINAL grounds . Firstly , he maintained that mandatory formal requirements had not been complied with , as the arrest warrant was unsigned and the attached order committing him to prison bore DATE . Additionally , he considered the reasoning of ORG judgment to be unclear and contradictory . Lastly , he stated that ORG had relied on reports CARDINAL and CARDINAL of the Verviers police - documents that had not been communicated to the accused ; in this connection he relied on Article CARDINAL paras . CARDINAL and CARDINAL ( article DATE , article CARDINAL ) of the Convention .", "The Court of Cassation dismissed the appeal on CARDINAL DATE .", "As regards the first ground of appeal , it noted that the formalities provided for in LAW for serving an arrest warrant were not mandatory and that failure to comply with them did not entail nullity . It reiterated ORG remarks as to the lack of a signature and the error in the date and concluded that there had been no infringement of the rights of the defence or of the principle of personal liberty .", "With respect to the second ground of appeal , ORG held that the reasons given for the judgment appealed against were neither unclear nor contradictory , as the judgment was based not only on the applicant ’s admissions concerning the irregular transactions referred to in reports CARDINAL and CARDINAL but also on the extremely large sums involved , the needs of the investigation and the risk that the accused might try to evade justice . ORG inferred from this that there were serious and exceptional circumstances affecting public safety .", "As to the third ground , ORG held that LAW was concerned with the exercise of the rights of the defence in trial courts and not with procedure followed in the matter of detention on remand . Furthermore , the LAW precluded communication of the file to the accused or his counsel at this stage in the proceedings ; this was apparent from section CARDINAL , taken together with the final paragraph of CARDINAL . ORG had accordingly not been able to \" conclude from the non - communication of the file that there had been any infringement of the rights of the defence \" .", "ORG The chambre du conseil made reasoned orders extending Mr PERSON ’s detention on remand DATE by DATE ( section CARDINAL , second paragraph , of the DATE Act - see paragraph CARDINAL below ) . The applicant regained his freedom on CARDINAL DATE as the vacation court , exercising the jurisdiction of ORG , took the view that the needs of the investigation no longer precluded his release .", "ORG On DATE , on an application by the trustees in bankruptcy for SPRL Lamy , ORG adjudged the applicant personally bankrupt .", "An application by PERSON to have that judgment set aside was dismissed by ORG on DATE , but on appeal ORG , in a judgment delivered on DATE , quashed the judgment of CARDINAL DATE and declared the judgment of DATE to be null and void .", "ORG On DATE , the chambre du conseil of the Verviers tribunal de première instance committed Mr PERSON and CARDINAL co - defendants for trial at ORG .", "ORG An application by PERSON to have that order set aside was declared inadmissible by ORG in a judgment given on DATE .", "Mr PERSON ’s appeal on points of law against that judgment was dismissed by ORG on DATE .", "ORG Throughout the proceedings relating to the committal for trial , the applicant pleaded various grounds of nullity . He argued in particular that his counsel had not been able to inspect the file when the arrest warrant was first confirmed by the chambre du conseil and had subsequently had DATE hours’ notice of each appearance , which was not sufficient for preparing the defence .", "ORG On DATE , ORG convicted the defendant and sentenced him to CARDINAL GPE imprisonment , suspended for DATE in respect of that part of the sentence which exceeded the time already spent in custody on remand , and imposed CARDINAL fines of CARDINAL BF .", "Unlike his co - defendants , Mr PERSON did not appeal .", "Detention on remand is governed by LAW of DATE , as amended or supplemented by , inter alia , Acts of CARDINAL DATE and CARDINAL DATE . The main provisions relevant in the instant case are set out below :", "\" After the examination , the investigating judge may issue an arrest warrant where the offence is punishable by CARDINAL months’ imprisonment or a heavier penalty .", "If the accused is resident in GPE , the investigating judge may issue such a warrant only in serious and exceptional circumstances , where necessary in the interests of public safety .", "... \"", "\" In the eventuality provided for in paragraph CARDINAL of section CARDINAL , the warrant shall state the serious and exceptional circumstances affecting public safety which justify arrest and shall specify the special features of the case or of the accused ’s personality . \"", "\" Immediately after the first interview with the investigating judge , the accused shall be allowed to communicate freely with his counsel .", "... \"", "\" The arrest warrant shall expire unless , within DATE following the examination , the chambre du conseil renews it on the basis of the investigating judge ’s report and after hearing submissions by ORG and the accused .", "If the accused , who shall be asked specifically about his wishes in the matter , desires the assistance of a lawyer , that fact shall be mentioned in the record of his examination by the investigating judge .", "In that event , the presiding judge of the chambre du conseil dealing with the case shall cause the place , date and time of the hearing to be entered in a special register at the registry at least TIME beforehand .", "The registrar shall notify these details by registered letter to the lawyer nominated . \"", "\" If , within DATE after the examination by the investigating judge , the chambre du conseil has not given a ruling on the remand , the accused shall be released unless , in a unanimous reasoned decision , after hearing submissions by ORG and the accused or his lawyer , the chambre du conseil rules that serious and exceptional circumstances affecting public safety necessitate the accused ’s further remand . Such a decision shall state the relevant circumstances and the special features of the case or of the accused ’s personality .", "The same shall apply DATE thereafter if the chambre du conseil has not ruled on the remand by DATE .", "Prior to a hearing by the chambre du conseil or ORG , the file shall be made available to the accused ’s lawyer at the registry for DATE . The registrar shall notify the lawyer accordingly by registered letter . \"", "\" The accused and the prosecution may appeal to ORG against decisions of the chambre du conseil in the cases provided for in DATE , CARDINAL .... \"", "\" Such an appeal shall be entered within DATE following DATE of the decision in the case of the prosecution and following DATE on which the decision was served on him in the case of the accused .", "Service shall be effected within TIME . The relevant document shall advise the accused of his right of appeal and of the time - limit for exercising that right .", "Notice of appeal shall be lodged with the registry of ORG and recorded in the register of criminal appeals .", "Crown Counsel shall forward the documents to Principal Crown Counsel .", "Notifications to the accused ’s lawyer shall be made by the Registrar .", "The Indictments Chamber shall give a ruling straightaway after hearing submissions by the prosecution and the accused or his lawyer .", "... \"", "ORG It should be noted that section CARDINAL does not contain any provision corresponding to the last paragraph of LAW , which was inserted by LAW of DATE ." ]

[ "5" ]

[ "5-4" ]

[]

[ "5" ]

[ "5-2" ]

[]

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

[ "13", "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before the Court by Mr PERSON , a lawyer practising in GPE .", "may be summarised as follows .", "The applicant and his wife PERSON , also a NORP national , lived in GPE where they operated their own company . They have QUANTITY children , PERSON born in DATE and NORP born on DATE . In DATE the applicant and C. separated , and DATE PERSON moved out of the marital home .", "On DATE C. ’s residence permit for GPE expired , she could now stay in GPE only up to DATE within a DATE period ; upon request dated DATE C. ’s right of residence was for humanitarian reasons prolonged once until DATE . On DATE C. registered as a resident in GPE , GPE , at her mother ’s address . With letter dated DATE the applicant terminated ORG ’s employment contract in view of her residence permit status in GPE .", "Since DATE C. repeatedly travelled to GPE with NORP for medical treatment and for visits . In particular , in DATE D. underwent surgery in GPE because of a kidney tumour . On DATE C. and NORP moved into their own flat in PERSON , but continued also to live in the former marital home in FAC , which had been assigned to C. by ORG decisions of DATE and DATE . From DATE C. stayed in GPE with NORP more often ; in DATE she moved her household and personal effects from Russe to Olpe .", "In DATE C. filed a divorce petition with ORG in Russe . In a hearing on DATE she informed the applicant and the court that NORP had a suspected kidney tumour which she wanted to have treated in GPE . The parties concluded a settlement , approved by the court , whereby the applicant agreed that C. assume custody of NORP until the end of the divorce proceedings , and that she could leave GPE with NORP at any time . At the same time contact rights for the applicant were set . In DATE ORG refused the applicant ’s request that this settlement be modified , awarded C. also custody of A. and assigned the former marital home to her . In DATE this decision was modified by ORG to that effect that custody of A. was now awarded to the applicant . In DATE C. withdrew her divorce petition . Consequently , the proceedings were discontinued .", "The applicant then filed his own divorce petition and on DATE ORG , by way of temporary measure , awarded C. custody of NORP and the applicant custody of NORP until the end of the divorce proceedings . ORG also set contact rights for both parties with regard to the other child and assigned the former marital home to C. This decision was upheld by ORG on DATE .", "On DATE the applicant lodged a request for the return of NORP to GPE , or alternatively for contact rights , pursuant to the provisions of LAW ( hereafter “ LAW ) . On DATE the ORG appointed a guardian ad litem ( PERSON ) for NORP On DATE ORG submitted a report regarding NORP ’s social situation . On DATE , following CARDINAL oral hearings , in which ORG heard the applicant , C. , NORP and the guardian ad litem , it granted the applicant ’s request and ordered C. to return NORP to GPE . In its decision ORG mainly relied on a letter from ORG dealing primarily with a request of ORG under LAW in respect of DATE as well as on a corresponding private expert opinion submitted by the applicant . It argued that ORG had been awarded custody of NORP only as a temporary measure until the end of the divorce proceedings . Her custody right therefore had to be interpreted as limited to the territory of GPE . Consequently , ORG considered the removal of NORP to GPE wrongful under LAW because it violated the applicant ’s joint custody right in so far as a change of NORP ’s residence outside of GPE was concerned .", "C. appealed the decision . On DATE the ORG ordered the applicant to submit a certificate of illegality ( Widerrechtlichkeitsbescheinigung ) pursuant to LAW . By a letter dated DATE , submitted with an LANGUAGE translation , ORG stated that :", "“ ... the care for the child NORP is granted to the mother , in accordance with the usual residence of the child . The personal contact with the child [ A. ] ... – too . This contact has to be realized exactly in GPE . Subsequent changes of the enacted temporary measures , motivated eventually by a changed place of residence of the mother , do not reflect on the executive force of the court decision . ... ”", "On DATE , following an earlier oral hearing to which it had summoned NORP but had then refrained from hearing him because of his young age , ORG ordered C. to adhere to the contact regime set out by ORG but dismissed the applicant ’s request to return NORP to GPE . It found that , irrespective of whether NORP or NORP law was applicable , since ORG had sole custody of NORP his removal had not been in breach of any custody right of the applicant . It could be deduced neither from the NORP courts’ decisions nor from the provisional character of those decisions that the right was limited to the territory of GPE . ORG was not convinced by the reasoning of ORG and the private expert opinion ; it found that their interpretation did not follow from the NORP courts’ decisions or the relevant provisions of NORP law and was not substantiated by case - law or professional literature . It further found that while a certificate of wrongness was meant to facilitate the determination of whether there was a violation of a custody right it did not bind the court . The decision was served on the applicant ’s lawyer on DATE .", "On DATE the applicant lodged a constitutional complaint . On DATE ORG refused to accept the constitutional complaint for examination , stating that it was inadmissible without giving further reasons .", "Article CARDINAL", "“ The objects of the present Convention are –", "a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and", "b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”", "Article CARDINAL", "“ The removal or the retention of a child is to be considered wrongful where DATE", "a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and", "b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .", "The rights of custody mentioned in sub - paragraph a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”", "Article CARDINAL", "“ For the purposes of this Convention –", "a ) \" rights of custody \" shall include rights relating to the care of the person of the child and , in particular , the right to determine the child ’s place of residence ;", "b ) \" rights of access \" shall include the right to take a child for a limited period of time to a place other than the child ’s habitual residence . ”", "Article CARDINAL", "“ The judicial or administrative authorities of a Contracting ORG may , prior to the making of an order for the return of the child , request that the applicant obtain from the authorities of the ORG of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of LAW , where such a decision or determination may be obtained in that ORG . ... ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicants were born in DATE , DATE and DATE respectively and live in GPE .", "NORP The city of GPE , an administrative centre of LOC , is in the south - east of GPE on the LOC coast . Its location explains the city ’s monsoon - influenced humid continental climate with warm but DATE when the DATE precipitation reaches its maximum . More specifically , DATE ( DATE ) is rainy and foggy , DATE and DATE can be marked by typhoons and DATE is DATE .", "NORP The area where the applicants live is located in LOC of GPE close to the Pionerskoye ( Sedankinskoye ) water reservoir ( Пионерское водохранилище ) near the FAC ( ORG ) river . The reservoir , constructed in DATE , contains supplies of drinking water for the city of GPE . In the Government ’s submission , on the basis of long - term observations , the floodplain of the GPE river was an area subject to periodic flooding during heavy rains when water was released from the NORP reservoir to avoid structural damage to the reservoir .", "The first applicant lives in a flat which she owns in a low - rise building at QUANTITY .", "The second applicant is a social tenant of a flat in a low - rise building at CARDINAL Semiradskiy Street .", "The third and fourth applicants , who are relatives , live in a flat owned by the fourth applicant in a low - rise building at CARDINAL FAC .", "The fifth applicant lives in a house he owns at CARDINAL Semiradskiy Street .", "The sixth applicant is a social tenant of a flat in a low - rise building at TIME .", "In a letter of DATE PERSON , the head of the authority in charge of the Pionerskoye reservoir – the ORG - owned enterprise “ LOC Primorskiy Region Water - and - sewage Authority ” ( государственное унитарное предприятие « Водопроводно-канализационное хозяйство юга PERSON , “ the Water Company ” ) DATE warned the acting head of ORG that the channel of the GPE river was cluttered with debris and household waste and overgrown with small trees and bushes and that this could have grave consequences given the adverse weather forecast for DATE . In particular , in the event of heavy rain ORG would have to release water from the reservoir and , in view of the poor state of the river channel , this might cause flooding over an area with a population of over CARDINAL people , as well as a railway , a highway and manufacturing plants . Mr L. requested that appropriate measures be taken to clear the channel .", "On DATE ORG ( NORP по чрезвычайным ситуациям г. PERSON , “ the FAC ” ) took a decision concerning , among other things , flood prevention work in the floodplain of the GPE river . The decision stated that although the question of cleaning up the course of the GPE river was repeatedly raised DATE , no actual measures had yet been taken . It went on to say that outlet channels and the river channel itself were abundantly overgrown with small trees and bushes , cluttered with debris and household waste and blocked by unlawfully built dams and various structures which all created a threat of flooding over an area of QUANTITY , with a population of over CARDINAL people , in the event of the urgent release of a large quantity of water from the NORP reservoir . The decision called on ORG , along with ORG , to take measures to clean up and deepen the channel of the GPE river to ensure that its throughput capacity ( пропускная способность ) was CARDINAL CARDINAL cubic metres per second . The decision also ordered that the local population be apprised via the media of the possibility of the inundation of the floodplain adjacent to the GPE river in the event of urgent large - scale evacuation of water from the reservoir , and that the authority in charge of the Pionerskoye reservoir – the Water Company – restore the local early warning system to raise the alarm if there was a risk of a flood .", "According to the Government , the authorities had taken a number of measures to implement the decision of DATE . In particular , in a letter of CARDINAL September CARDINAL ORG instructed the head of the FAC bridge construction crew immediately to clean the GPE river channel in the area where CARDINAL of the bridges was being built and the river channel was full of debris . In the ORG ’s submission , in the absence of information concerning the clogged - up river channel in subsequent reports , it was reasonable to assume that the FAC bridge construction crew had cleaned it in compliance with the letter of DATE .", "Also , in a letter of DATE ORG urged the head of the council of horticultural cooperatives to instruct the ORG members to engage in an effort to clean up the GPE river channel and avoid littering the land around the river . The Government further referred to relevant reports attesting that in DATE and DATE and DATE work had been done to clean up the river channel . They were unable to say whether those measures helped to increase the river ’s throughput capacity to QUANTITY per second as prescribed by the decision of DATE .", "In a letter of CARDINAL DATE ORG informed ORG that the water level in the NORP reservoir was close to critical and that some of it would have to be evacuated . However , the GPE river channel was densely overgrown with small trees and bushes and cluttered with debris and household waste , creating a threat of flooding over a large populated area in the event of the urgent evacuation of water from the dam . The letter went on to say that , in accordance with the decision of ORG dated DATE , it was necessary for ORG to take urgent steps to clean up the GPE river channel .", "In a letter of DATE ORG notified ORG that , in accordance with the latter ’s decision of DATE , work had been carried out to clean up the river channel . In particular , from DATE the bodies of CARDINAL old cars and sundry household waste had been evacuated from the river , and the population living in its floodplain had been told what to do in the event of serious flooding . The letter also stated that work to cut down trees and bushes along the river was scheduled for DATE .", "On DATE ORG requested ORG to earmark a certain amount from the regional budget for clean - up work on the GPE river , stating that the work would reduce the area in danger of flooding in the event of the sudden evacuation of water from the reservoir . It does not appear that this request was heeded .", "On DATE a committee of officials from ORG drew up a report presenting the results of the examination of the GPE river bed . The report stated that the part of the river that fell within the CARDINAL zone under the responsibility of ORG was being kept clear , whereas the river channel and floodplain outside that zone were overgrown with bushes and trees and littered with household waste and bodies of old cars . The report also noted that owners of private houses on the river banks had narrowed the channel by piling earth into the river in an attempt to enlarge the size of their plots of land . Moreover , earth was regularly excavated and removed from the river banks , with the result that the banks crumbled and were washed away . The committee recommended that the municipal authorities clear the bushes and trees from the floodplain , deepen the channel , clear the river bed and banks of household waste and car bodies and restore the banks to their natural state .", "In a decision of DATE ORG instructed the city authorities to take a number of measures to prevent emergency situations in connection with the possible flooding of rivers during DATE . It indicated , in particular , that it was necessary to verify the condition of water evacuation systems , bridges and river beds and channels , to check and activate the early warning system , to check whether rescue services were prepared for flood situations and to equip them with means of communication . It is unclear whether any such measures were taken .", "On DATE at TIME a regional meteorological service forwarded a storm warning for DATE to the Primorskiy regional and the GPE city authorities . It stated that heavy rainfall of QUANTITY was expected in LOC and the city of GPE . In particular , for DATE the service forecast heavy precipitation of QUANTITY within TIME , which would continue throughout DATE on DATE and through the night . The warning also stated that there was a risk of floods on rivers in the south of the region . In the ORG ’s submission , the population had been duly forewarned about the heavy rain by the media .", "On DATE , on the basis of the aforementioned warning , ORG calculated that the water inflow to the NORP reservoir , which had a maximum storage capacity of QUANTITY and which on DATE contained QUANTITY , would be QUANTITY . Having regard to these calculations , ORG started releasing QUANTITY of water per second from the reservoir .", "On DATE it started raining TIME . The intensity of the rain proved to be much higher than forecast by the meteorological service DATE . The amount of rain that fell on DATE was the equivalent of DATE rainfall . In particular , within a CARDINALhour period the amount of rain that fell in the area of the Pionerskoye reservoir totalled CARDINAL to QUANTITY . The rain was heaviest QUANTITY , when QUANTITY fell .", "Until TIME on DATE , water was released from the NORP reservoir at the rate of QUANTITY per second .", "At TIME the Water Company increased the rate to QUANTITY .", "At TIME the Water Company increased the release of water to QUANTITY per second and kept increasing it TIME . By CARDINAL the evacuation rate was QUANTITY per second .", "TIME the evacuation of water remained at its maximum rate of QUANTITY .", "At TIME ORG decreased the release rate to QUANTITY , then at TIME to QUANTITY , and at TIME down to QUANTITY per second .", "According to the applicants , because of the urgent release of a large quantity of water from the GPE reservoir on DATE , a large area around the reservoir was instantly flooded , including the area where the applicants resided . In the ORG submission , the water arrived and rose very quickly at some point TIME .", "According to the applicants , no emergency warning had been given before the flood . The Government referred to a letter of ORG of ORG in LOC , dated DATE , to the effect that at the relevant time there had been no local emergency warning system in place at the NORP reservoir .", "According to the first applicant , a disabled person , on the date in question she was at home and found out about the flood from her daughter and granddaughter , who came running to her flat to help her out to a safe place . Just as they reached her home , the water started rising rapidly , and by the time her relatives had helped her out onto the roof of the building , the water had reached waist level in the flat and was much deeper in the courtyard . In the first applicant ’s submission , her home and belongings , land , outhouses and CARDINAL cars were flooded .", "The second applicant was not at home DATE as she was at work . Her disabled brother , who was at home during the flood , apparently later told her that at TIME water started rising from the cellar and within TIME the house was flooded . According to the second applicant , some of her belongings were washed out of the house and some damaged by the water , which remained in the house for some time .", "The third applicant was at home with her DATE son when the flat was instantly flooded . She managed to dress the boy and to escape , wading breast - deep to a nearby motorway , which at that point had not yet been flooded ; from there she took a bus to a safe place . Soon after the third applicant had left , all motorways in the vicinity were submerged and the public transport lines disrupted . In the third applicant ’s submission , her property was severely damaged by the flood .", "The fourth applicant , the third applicant ’s mother - in - law , was at work when the flood occurred . She returned home in TIME and , according to her , suffered severe distress when she found her daughter - in - law and grandson missing and her home and possessions ruined .", "The fifth applicant was at work when the flood occurred . His son , A. B. , who had been at home at the time , told him what had happened . According to PERSON , at around TIME he heard the sound of seething water in the cellar and then saw water running from the street into the cellar . He looked out into the courtyard and realised that the water level was rising fast . He tried to leave but was unable to open the front door because the water in the street was already QUANTITY high . PERSON then jumped through a window into the flooded street , where the water was above shoulder level . He swam to a nearby shed , through seething water among household belongings , planks , logs and other litter . He managed to climb onto the roof of the shed and saw the surging water destroy sheds and fences , while people screaming in panic swam to any elevated places they could reach . According to the fifth applicant , when he returned home in TIME the water had already subsided . In his submission , his house and its contents and his land , outhouses and car were all damaged by the water .", "The sixth applicant and her CARDINAL-year - old son were at home when the flood began . They opened the door to the street and their home was instantly flooded with water . They rushed out into the street , where within TIME the water had risen to breast height . According to the sixth applicant , she was in a state of shock , as she could not swim . Her son swam away and brought a ladder , which enabled them to climb onto the roof of a garage . In the sixth applicant ’s submission , her house and belongings , land and outhouses were all flooded .", "As far as can be ascertained from the parties’ submissions , the water in the first CARDINAL ORG flats reached a height of QUANTITY ; in the fifth applicant ’s home the level was between CARDINAL and QUANTITY and in the sixth applicant ’s flat , QUANTITY . According to the applicants , the water remained at those levels for DATE .", "According to the applicants , no evacuation of the population from the flooded area had been organised following the flood of DATE . In their submission , they had had to find their own way to safety , and subsequently to cope with the consequences of the flooding on their own .", "The documents submitted by the Government indicate that by a decision of DATE ORG ordered that a number of rescue measures be carried out . A similar decision was taken on DATE by ORG of the Primorskiy Region .", "According to the Government , those affected by the flood had been evacuated and provided with food and accommodation at temporary accommodation centres . Also , staff from various rescue services had been sent to the flooded area .", "In a letter of CARDINAL DATE ORG reported to ORG on the measures taken in the period from DATE to provide those affected by the flood and the personnel engaged in the rescue operation with food and drinking water .", "On DATE the FAC prosecutor ’s office opened a criminal investigation in connection with the flood of DATE . At some point criminal proceedings were brought against PERSON , the director of ORG , on suspicion of his having committed an offence punishable under LAW ( CARDINAL ) of LAW ( professional negligence ) . The case was assigned the number DATE .", "By CARDINAL decisions of DATE the investigator in charge declared the first applicant both victim and civil claimant in the case . It appears that at some point the second , fourth , fifth and sixth applicants were also granted victim status . The sixth and fifth applicants were informed of the relevant decisions in letters from ORG of the ORG dated DATE and DATE respectively .", "On DATE the investigator in charge inspected the scene of the incident at the first applicant ’s domicile and questioned her . The first applicant stated that she had spent DATE at home . It had been raining but at first there had been no water in the courtyard . At TIME a wave of water had swept in from the direction of the Pionerskoye reservoir and within TIME the water level had risen to QUANTITY . The first applicant said that there had been no prior warning of any evacuation of water from the NORP reservoir . She further stated that she had been living in her flat for DATE and had never been warned that the flat was located in a flood zone . This was the first time that such large - scale flooding had happened . She also listed the property lost in the flood and indicated its value .", "On DATE the investigator in charge inspected the scene of the flooding at the fifth applicant ’s domicile . The ensuing report attested , in particular , to the presence of traces on the walls at a height of QUANTITY , left by water which had remained in the LOC for a prolonged period . The investigator also questioned the fifth applicant , who stated that he had been away from home when the flooding had occurred and had been informed of the event by his son . DATE he had returned home at TIME and the water had already subsided . The fifth applicant also said that there had been no prior warning of any evacuation of water from the NORP reservoir . He had lived in the house for DATE and had never been warned that it was located in a flood zone . The fifth applicant also listed the property lost in the flood and indicated its value .", "At some point the investigating authorities questioned the second applicant , who stated that she had been living in her flat for DATE and that it was only during DATE that the building in which she lived had been regularly flooded , which she explained by the absence of proper drains along the roads and the fact that the GPE river was littered and obstructed by unauthorised structures . She explained that on DATE , at TIME , water had started rising from the cellar of the building in which she lived and filled her flat within TIME . There had been no prior warning concerning any evacuation of water from the NORP reservoir and she had not seen any officials from the district or city authorities on CARDINAL or DATE . She indicated the amount of the pecuniary damage she had suffered as a result of the flood .", "The fourth applicant was also questioned as a witness and made oral statements similar to those of the second applicant .", "On DATE the investigating authorities ordered that the criminal proceedings against Mr L. be discontinued owing to the absence of the constituent elements of a criminal offence in his actions . According to the decision , the preliminary investigation had established that because of exceptionally heavy rains on DATE the water level in the NORP reservoir had been close to critical , with the result that there was a real risk of a dam breaking , which could have claimed numerous lives and caused extensive pecuniary damage , and that in ordering the evacuation of water from the reservoir Mr L. had acted within his competence and in full compliance with the relevant regulations and had thus prevented more extensive damage to the residents of GPE . At the same time , according to an expert report of DATE ( see paragraphs CARDINAL below ) , the main reason for the flood of DATE had been the poor state of the channel of the GPE river , and in particular the fact that it had been overgrown with trees and bushes and obstructed by various structures . On DATE the investigating authorities accordingly ordered that separate criminal proceedings be brought under LAW ( CARDINAL ) of LAW ( abuse of power ) against officials of the GPE municipal and the Primorskiy regional authorities in that connection .", "On DATE the district prosecutor ’s office of LOC of GPE ( “ the district prosecutor ’s office ” ) brought criminal proceedings in case no . DATE against officials of the GPE municipal and Primorskiy regional authorities under LAW ( abuse of power ) on suspicion on them having , in excess of their power , allocated plots of land for individual housing construction within a water protection zone of the GPE river . The case file was given the number DATE .", "NORP In letters of DATE and CARDINAL DATE respectively the prosecutor ’s office of LOC ( “ the regional prosecutor ’s office ” ) informed the second and fourth applicants that the investigation in case no . DATE had been repeatedly suspended owing to the lack of any evidence of a crime and then reopened , and that on the CARDINAL most recent occasions it had been suspended and resumed on DATE and DATE respectively .", "On DATE the investigating authorities discontinued the proceedings in case no . DATE , referring to the absence of evidence that a crime had been committed .", "NORP The decision stated that , in accordance with an applicable governmental regulation , a water protection zone should be delimited in a city ’s general development plan or , in the absence of such a plan , should be established by a regional administrative authority . Moreover , in accordance with the relevant construction rules and regulations , construction of residential and non - residential buildings and , in particular , the allocation of plots of land for individual house building , was prohibited in water protection zones ( водоохранные зоны ) as well as in catastrophic flood hazard zones ( зоны возможного катастрофического затопления ) . These latter zones were defined as areas where water levels during a flood could reach QUANTITY and where flooding could cause death , destroy residential and non - residential buildings and disable industrial equipment .", "NORP The decision noted , with reference to the findings of the investigation , that when the NORP reservoir had been built in DATE , no severe flood hazard zone had been delimited in the adjacent area as no methods existed in GPE for identifying such zones until DATE . It was stated in the decision that an attempt to identify such zones in the city of GPE had been made at some point in DATE , when an expert agency was commissioned to prepare a feasibility study on the “ Protection of GPE from Floods ” , in the context of the federal programme for the protection of territories from typhoons and floods . However , the resulting document had not been duly registered with the competent ORG authority and had thus remained ineffective and could not be taken into account in elaborating town planning restrictions . As a result , no potential flood zones or catastrophic flood hazard zones , including the GPE river valley , had ever been delimited in the city of GPE ’s general development plan .", "The decision also stated that no water protection zones had ever been marked in the city ’s general development plan either . ORG , which by virtue of the aforementioned governmental regulation ( see paragraph CARDINAL above ) had been under obligation to establish such zones , had repeatedly failed to do so despite requests from the competent ORG agencies , with the result that regulations imposing town planning restrictions , particularly those restricting construction of individual houses within such zones , had remained inoperative . Not until DATE had the Governor of the Primorskiy Region finally adopted a decree establishing a water protection zone that included the GPE river valley . The decree required the GPE authorities to delimit water protection zones in the city ’s general development plan , but the instruction was not followed as it would have meant updating that plan , which in turn would have meant conducting an ecological impact assessment of the plan . According to the decision of DATE , ORG had not yet submitted the city ’s general development plan with water protection zones marked on it to ORG for impact assessment .", "In the light of the above findings , the decision concluded that prior to CARDINAL September CARDINAL , when no water protection zones had been established by the Primorskiy regional authorities , any town planning restrictions concerning construction activities in such zones had been inoperative , officials of ORG could not be said to have exceeded their powers when allocating plots of land on the banks of the GPE river at that time . After that date , no plots of land had been allocated within that zone . The decision thus confirmed that all the properties on the banks of the GPE river that had been flooded on DATE , including the buildings in which the applicants lived , had been built before DATE , that is , lawfully .", "It also stated that construction activities along the GPE river in the area downstream of the reservoir at present were allowed within the limits of the site where buildings already existed , that no zones where new construction was prohibited were delimited in the city of GPE ’s general development plan , that no demolition or transfer of previously constructed buildings was planned , and that the owners and leaseholders of those buildings and plots of land were entitled to use and dispose of them , and in particular to construct new buildings in the place of old ones .", "NORP The decision also stated that there were no legal instruments or documents governing clean - up operations in the downstream area of the GPE river channel . Also , according to the decision , since DATE ORG for ORG in the Primorskiy Region ( “ the ORG ” ) had been making DATE inspections of the GPE river channel . The results revealed that ORG had cleared the part of the river channel near the NORP reservoir ; but the area downstream of that zone was only cleared sporadically by the people living there . The decision further stated that in view of the need to keep the channel of the GPE river clear ORG had submitted suggestions to ORG concerning measures to be taken with respect to the GPE river in DATE , DATE and DATE , including clean - up work . It did not indicate whether those suggestions had been accepted and implemented .", "The decision went on to note that the LOC reservoir belonged to the regional authorities and was operated by ORG . Under domestic law , the owner of the reservoir and the body operating it were responsible for ensuring its safe exploitation . Accordingly , the authorities of LOC and ORG were under obligation to secure the safe evacuation of water from the reservoir , which meant ensuring the necessary throughput capacity of the river channel below the dam . The decision further stated that , according to the relevant governmental decree , the proper technical and sanitary maintenance of reservoirs and use of water resources obeyed rules of exploitation of reservoirs to be elaborated by the owners of the reservoirs or the bodies operating them . It was the owner of the NORP reservoir and the body operating it who were responsible for planning and carrying out measures to ensure its proper functioning .", "Following the decision of DATE , the investigation remained suspended until DATE .", "By a decision of CARDINAL DATE the regional prosecutor ’s office ordered that the materials of criminal case no . DATE be sent to the investigation department of LOC of GPE ( “ the district investigation department ” ) for examination , with a view to setting aside the decision of DATE by which the criminal proceedings in the case had been discontinued . The decision of CARDINAL DATE stated , in particular , that the decision of DATE had been unfounded , as the investigation had not made any assessment of the GPE authorities’ failure to clear and clean up the GPE river channel , or the failure of the GPE city and the Primorskiy regional authorities to delimit water protection and riverside zones in the city of GPE ’s general development plan , to determine the legal status of the land adjacent to the GPE river , to comply with the regulations governing the exploitation of that land and to make the necessary changes to the feasibility study on ORG from Floods ” so that it finally became operative .", "In a decision of CARDINAL DATE the district investigation department refused to set aside the decision of DATE .", "On DATE the regional prosecutor ’s office sent a similar request to the investigation department of LOC . It appears that the latter instructed the district investigation department to re - open the investigation in case no . DATE .", "On DATE the district investigation department resumed the proceedings in the case .", "By a decision of CARDINAL DATE the district investigation department discontinued the proceedings owing to the absence of evidence of a crime . A copy of this decision has not been submitted to ORG .", "DATE . On DATE the district prosecutor ’s office invited the district investigation department to set aside the decision of CARDINAL DATE as unlawful . On DATE of the submission by the Government of their latest observations in the present case in DATE , the request of CARDINAL DATE seems to have still been pending .", "The Government did not submit a copy of the investigation file in case no . DATE despite the ORG ’s specific request for them to do so . They stated that the case in question was in the hands of the regional prosecutor ’s office and ORG .", "It appears that CARDINAL expert examinations were carried out in the context of the investigation in case no . DATE . The results were reflected in reports dated DATE and DATE and DATE respectively . The ORG has not been provided with a copy of the report of DATE and is unaware of its contents . Nor has the ORG received a copy of the report of DATE , although the Government largely relied on that report in their submissions . The applicants have submitted a copy of the report of DATE .", "In the ORG ’s submission , this report stated that because of the exceptional meteorological conditions on DATE , when the actual rainfall exceeded several times the amount forecast , it had not been possible to avoid a sudden large - scale evacuation of water from the NORP reservoir . According to the Government , the report further stated that the actions of ORG on the date in question had been in compliance with relevant regulations and correct , and in particular the water release regime chosen by ORG on DATE had been close to optimal . According to the report , on DATE TIME the evacuation of water remained at its maximum rate of QUANTITY . In the Government ’s submission , if the Pionerskoye reservoir had not existed , rainwater would have flooded to the mouth of the GPE river at a maximum rate of QUANTITY .", "An expert examination of the area flooded on DATE was carried out DATE and DATE .", "The resulting report , dated DATE , was entitled “ On the flooding of non - residential and residential objects in the area downstream of [ the NORP reservoir ] ... as a result of the evacuation of rainwater by the reservoir on [ DATE ] ” . It described the system for evacuating excess water from the LOC reservoir as comprising an open spillway with a floodgate situated below the normal water level , and a siphon spillway . The maximum throughput capacity of each of the CARDINAL spillways was equal to QUANTITY per second . According to the technical documentation of the Pionerskoye reservoir , excess water should normally be evacuated through the open spillway by operating the floodgate . The siphon spillway was to be activated automatically only if the water level was still rising when the floodgate was fully open .", "NORP The report explained the sudden increase in the water level in the reservoir on DATE by the exceptionally heavy rain on DATE , which had been much heavier than forecast , making it necessary to evacuate water . It confirmed that the type of flooding that occurred on DATE was thought to occur only once a century .", "NORP The report also noted the extensive damage caused by the flood , listing in particular the residential buildings which had been flooded near the GPE river , including those in which the applicants lived , and indicated that over much of the flooded area the water had been CARDINAL to QUANTITY deep .", "DATE . The report further confirmed that the river bed was overgrown with vegetation and littered with household waste , that its course had been significantly altered by human activity and that a number of unauthorised constructions , including road bridges and footbridges , had been built , reducing its throughput capacity .", "The report concluded that the staff of ORG had done well in evacuating the water from the NORP reservoir on DATE . In particular , after partially opening the floodgate of the open spillway for a short time , the staff had then opened the gate completely . However , the water evacuated had flowed down the river in the form of a wave , which had magnified its destructive effect , and the presence of debris and constructions in the floodplain had considerably contributed to raising the water level during the flood . In particular , the presence of bridges and service pipelines at some points on the GPE river had increased the water level by QUANTITY , which had been the main reason for the destruction of a road and railway bridges at the mouth of the river .", "The report also stated that under the relevant planning and development rules and regulations governing urban and rural settlements , territories where residential and non - residential buildings had been constructed or were to be constructed should be protected from floods of once - a - century proportions like the one on DATE . The same regulations prohibited the construction of various buildings in catastrophic flood hazard zones .", "The report went on to note that the instruction for the exploitation of the LOC reservoir made it clear that no constructions should be allowed in the area downstream of the reservoir without measures being taken to protect that area from floods . According to the city of GPE ’s general development plan , there should be no building development in the area downstream of the NORP reservoir ; any individual housing as well as recreational and industrial facilities located in that area should therefore be demolished or transferred .", "NORP The report further concluded that all building development in the area downstream of the reservoir from its very beginning had been , and was being , carried out in breach of the relevant technical standards and the city of GPE ’s general development plan . It added that the constant increase in the density of constructions in the area downstream of the reservoir in the absence of any measures to protect the area from floods led to increased losses when floods occurred .", "It appears that on DATE a commission of officials from ORG drew up a report presenting the results of the inspection of the flat where the third and fourth applicants lived . The report listed in detail the damaged possessions and stated that the resulting damage amounted to MONEY ( “ RUB ” , MONEY , “ ORG ” ) .", "On DATE a similar report was drawn up following the inspection by the same authority of the fifth applicant ’s home . The report confirmed that the fifth applicant ’s house , its contents , the outhouses and land and CARDINAL cars had been damaged as a result of the flood , and indicated that the damage amounted to RUB MONEY ( approximately EUR CARDINAL ) . It also mentioned that during the flood the water in the fifth applicant ’s house had reached a level of QUANTITY .", "In their reply of DATE to the third and fourth ORG complaint , ORG stated that according to the information at their disposal , the human factor had played a role in the flood of DATE , as the water had not been released from the reservoir until a critical situation had emerged where a large volume of water had to be evacuated urgently to save the dam . The letter further stated that the work done by the city authorities to clear the river channel had not helped to prevent the houses and other structures from being flooded because the evacuation of water by ORG had been sudden and massive , with the result that even special concrete waterfronts of the dam outlet channel had been broken . The letter went on to say that the reservoir was the property of the regional authorities and therefore the GPE city authorities had no power to reprimand staff of ORG . However , criminal proceedings had been brought in connection with the pecuniary damage suffered by residents of GPE and the disruption of transport lines during the heavy rains and the evacuation of water from the NORP reservoir which should lead to the punishment of those responsible . Also , ORG had filed a civil claim requesting that the actions of ORG be found unlawful . Lastly , the letter stated that compensation for pecuniary damage would only be possible from the federal budget ( a request to that effect had already been sent to ORG ) and from insurance companies .", "On DATE ORG ordered that funds be allocated for restoration work in the area flooded on DATE and financial support to the victims of the flood . By a decree of DATE the Governor of ORG ordered the distribution of the funds allocated by the Government . According to the Government , the first applicant received a lump sum of RUB CARDINAL ( approximately EUR CARDINAL ) and the remaining applicants each received RUB CARDINAL ( approximately EUR CARDINAL ) in financial support . Also , according to the Government , the victims of the flood could each have received QUANTITY of coal with a PERCENT discount .", "By a letter of CARDINAL DATE ORG of the Primorskiy Region informed the second applicant that so far no work had been carried out to repair the consequences of the flood .", "On DATE the regional prosecutor ’s office sent a request ( представление ) to the head of ORG . An inquiry by the prosecutor ’s office had established that over DATE the city authorities had not taken any measures to remedy the consequences of the flood of DATE and , in particular , that the GPE river remained abundantly littered with household and other debris , including large fragments of concrete structures destroyed during the flood , as well as wood and silt . The prosecutor ’s office went on to say that the city authorities’ inactivity was putting the lives of the people living along the river in danger , since in view of the heavy rainfall in DATE and the need to evacuate water from the NORP reservoir , there was a real risk of a flood similar to that of DATE . The prosecutor ’s office thus urged the city authorities to carry out clean - up work and to inform it of the results within DATE .", "In similar letters of DATE and CARDINAL DATE respectively , the regional prosecutor ’s office notified the fourth and second applicants of the status of the proceedings in cases nos . DATE and DATE and stated that , following its requests of DATE , work had been carried out to clean up the GPE river , financed by the regional budget . Also , further funds would be allocated for flood protection work in the area close to the GPE river . The fourth applicant was also informed of her right to be declared a civil claimant in criminal case no . DATE , and sought compensation for the pecuniary damage she had suffered as a result of the flood of DATE .", "On DATE the regional prosecutor ’s office further replied to the fourth applicant that an expert inquiry had confirmed that the building in which she lived was in an unsound state following the flood and that repair work was necessary . According to the letter , ORG had been asked to do the work .", "In a working report of CARDINAL DATE the head of ORG informed the deputy head of ORG that the residential quarters near the GPE river were regularly flooded during heavy storms because the river was full of litter and obstructed by earth dumped into it for construction work , as well as the absence or poor state of drainage along the streets in the affected area , including FAC . A series of measures were needed to protect the city of GPE from floods and , in particular , to clear the GPE river and equip the streets in the area near the river with a proper drainage system .", "In a letter of DATE ORG notified the second applicant of the allocation in DATE of funds for work to repair the consequences of the flood of DATE . According to the letter , the work was scheduled for DATE .", "On DATE , in reply to a complaint from the second applicant , the regional prosecutor ’s office confirmed that ORG had failed thus far to take any measures to prevent Semiradskiy Street from being flooded and , in particular , to carry out the work indicated in the working report of DATE , and that no budgetary funds had been or were being allocated for such work .", "NORP In a letter of DATE the regional prosecutor ’s office further informed the second applicant that the authorities were currently working on a fortification project to protect GPE , including the area near the GPE river , from floods , that funds for the work had been assigned from the federal budget and that the work would be completed on schedule .", "On DATE ORG informed the second applicant that no funds had been appropriated for clean - up work in the GPE river in the DATE budget .", "The applicants brought CARDINAL separate sets of civil proceedings against LOC and GPE authorities and DATE save for the second and fifth applicants – ORG , seeking damages for their lost property as well as compensation for the anguish and distress they had suffered during the flood of DATE . They claimed that the flood had had such devastating effects mainly because of the poor state of the channel of the GPE river and the drainage system and the authorities’ failure to check and clear them . The first and second applicants reported that during the flood the water in their flats had risen to a height of QUANTITY and remained at that level for a long time . The fifth applicant reported that during the flood the water in his house had risen to a height of QUANTITY and remained at that level for TIME . The sixth applicant reported that she had been at home during the flood and that the water in her flat had risen instantaneously to above head level and remained at that level for a long time .", "In CARDINAL judgments of DATE , a judgment of CARDINAL DATE and a judgment of DATE , all very similar , ORG of FAC ( “ the ORG ” ) dismissed the claims brought respectively by DATE applicants . It noted , in particular , that according to the expert report of DATE the action taken by ORG in a situation of extremely heavy rainfall had been correct . The court further referred to an expert report of CARDINAL DATE which had found that the flood had been caused by the fact that the river channel had been narrowed by various structures and overgrown with vegetation , whereas the action taken by ORG in the circumstances had been correct . The court concluded that both expert reports suggested that the heavy rainfall had been the main cause of the flood .", "The court also referred to the investigating authorities’ decision of DATE to discontinue criminal proceedings against PERSON , the director of ORG , owing to the absence of any constituent elements of a crime in his actions , and the decision of DATE to discontinue criminal proceedings against officials of the city of GPE and LOC for lack of evidence of a crime .", "It further noted that under the relevant legislation waterways like the GPE river could not be municipally owned , so there had been no obligation on ORG to assign funds from the local budget for clean - up work on the river . The GPE authorities had requested ORG to assign money for the work from the regional budget .", "The court thus concluded that no fault could be attached to any of the defendants for the damage sustained by the relevant applicants , which had been the result of force majeur . In the court ’s opinion that conclusion was corroborated by the fact that following the flood , in the period between CARDINAL and DATE , the authorities had declared an emergency situation throughout the city of GPE and not only in the flooded area near the GPE river .", "On DATE the Primorskiy Regional Court ( “ the Regional Court ” ) upheld on appeal the judgment delivered in the second applicant ’s case . It confirmed that the GPE city authorities had had no obligation to clear the GPE river as it was not municipal property , and that any clean - up work should have been carried out by ORG . The court went on to say that it followed from the CARDINAL expert reports relied on by the first - instance court that even if the GPE river channel and floodplain had been cleared it could not be excluded that the residential buildings near the river , including the one in which the second applicant lived , would nevertheless have been flooded , taking into account the exceptional intensity of the rains on the date in question . The court also noted that the defendants had offered welfare aid to the victims of the flood , including the second applicant , within the amount assigned for that purpose , and that her claim regarding pecuniary damage had not been supported by any documentary evidence and was therefore unsubstantiated .", "On DATE and DATE ORG also upheld on appeal the judgments given in the first , fifth and sixth ORG cases , adhering to the reasoning of the first - instance court .", "On DATE ORG delivered a judgment in the case brought by the third and fourth applicants . It based its findings on expert reports of CARDINAL May and DATE and DATE produced in the context of the investigation in criminal case no . DATE and on other materials in that criminal case .", "NORP The court established that the NORP reservoir was run by ORG and was the property of the regional authorities . It also noted that since DATE a special - purpose federal programme on protection of LOC from floods had been in progress , and that it was the Primorskiy regional authorities who had requested that programme and controlled the receipt and use of the funds earmarked for that purpose . The court went on to say that the programme had envisaged extensive work to reconstruct and build flood - protection facilities in inhabited areas , including the GPE river channel , and the construction of a water evacuation channel .", "The judgment further stated that all CARDINAL aforementioned expert reports had established that no measures to implement the federal programme in question had been taken . It then described in detail the poor state of the GPE river channel .", "ORG . The court also referred to the decision of DATE in which ORG had urged the city authorities to clear the GPE river channel ( see paragraph CARDINAL above ) , and to a report by a committee of officials from ORG dated DATE , which reflected on the poor state of the ORG river channel and invited the city authorities to have it cleared ( see paragraph CARDINAL above ) . The court noted that the city authorities had not adduced any evidence that any such measures had been taken , or that the authorities had ever complied with their own decisions .", "The court further noted that the defendants had not adduced any evidence confirming that the GPE river was regional property and that there was any separation of powers between the regional and municipal authorities concerning the maintenance of the GPE river , which , in the court ’s opinion , had led to the inactivity and shifting of responsibility by officials at various levels . The court stressed that proper , reasonable maintenance and exploitation of the river by the authorities would have helped avoid such drastic consequences .", "As regards the action taken by ORG , the court found it established that the third and fourth ORG flat had remained intact until the large - scale evacuation of water by ORG on DATE , following which the flat had been instantly flooded . The court concluded that on DATE in question ORG had evacuated a large quantity of water which had overflowed the river banks and flooded the residential area . The court rejected an argument of ORG representative that if the water had not been evacuated the reservoir would have burst its banks , which might have caused more serious damage . The court noted in this connection that in view of the weather conditions ORG should have evacuated water in smaller quantities over a longer period of time .", "NORP The court thus attributed responsibility for the events of DATE to all CARDINAL defendants , stating that they should have foreseen the adverse consequences and prevented them , but failed to do so . It stated that the GPE fault in the damage caused by the flooding of residential buildings situated in the vicinity of the NORP reservoir was established by the expert reports of DATE and DATE .", "As regards the third and fourth ORG claims , the court established , on the basis of the available evidence , that the fourth applicant was the owner of the damaged flat , where she was living with her husband , her son and daughter - in - law ( the third applicant ) and a grandchild . The court further examined an evaluation report drawn up in the fourth applicant ’s presence by a competent ORG authority ( see paragraph CARDINAL above ) . The court noted that the report was signed by the fourth applicant , who had never disputed the amount of the damage indicated therein . Moreover , she confirmed to the court that as a civil claimant in the criminal proceedings instituted in connection with the incident of DATE , she had claimed the same amount . The court therefore granted the fourth applicant ’s claim for pecuniary damage in the amount reflected in the evaluation report and found the remainder of that claim , as well as the third applicant ’s claim for pecuniary damage , unsubstantiated , given in particular the fact that the third applicant lived in the fourth applicant ’s flat , and all the damaged possessions in the flat had already been listed and the resulting damage assessed in the aforementioned evaluation report .", "On DATE ORG quashed the first - instance judgment and remitted the case for fresh examination . It noted , in particular , that in stating that ORG had funds at its disposal in the context of the federal programme to protect the region from floods , the first - instance court had not checked whether any funds from the federal budget had ever been allocated to the Primorskiy regional authorities and , if so , how they had been used . Therefore , in ORG opinion the lower court ’s finding concerning the regional authorities’ failure to have work carried out in the GPE river had not been based on the materials of the case .", "The appellate court also noted that the fact that ORG was regionally owned , in itself , could not be regarded as engaging the responsibility of ORG , as ORG was a legal entity , and the responsibility of an owner of an entity such as ORG could be limited by relevant civil law provisions or that entity ’s constituent documents . ORG further stated that in the first - instance judgment no distinction had been made between the consequences of the exceptionally heavy rain on DATE and those of the authorities’ alleged failure to take measures to prevent flooding .", "By a judgment of DATE ORG dismissed the third and fourth ORG claims in their entirety as unsubstantiated . The judgment was based essentially on the same reasoning as the judgments given in the cases brought by the first , second , fifth and sixth applicants .", "On DATE ORG upheld the judgment of DATE on appeal . It stated that when rejecting the third and fourth ORG claims , the first - instance court concluded that the flood of DATE had been caused by a natural disaster whose extent could not have been foreseen by the defendants or avoided as a result of any purposeful action on their part .", "ORG also noted that the first - instance court had duly examined and rightly dismissed the PERSON arguments to the effect that the defendants should be held liable for the destructive consequences of the evacuation of water from the reservoir . The appellate court referred to the expert report of DATE , which stated that the actions of ORG on DATE had been correct and explained the flood on that date by the presence downstream of the NORP reservoir of unauthorised constructions built in breach of the city of GPE ’s general development plan , and the presence of debris and constructions in the floodplain of the GPE river .", "ORG further noted that the expert report of CARDINAL DATE stated that the cause of the flood had been the fact that the river channel was narrowed by constructions and overgrown with vegetation , and that the water evacuation strategy used by the Pionerskoye reservoir on the date in question had been optimal .", "The court also quoted the expert report of CARDINAL DATE ( see paragraph CARDINAL above ) , which had established that the vegetation obstructing the river channel had helped to reduce the force of the wave following the evacuation of water from the reservoir , and that if the water had been evacuated “ in accordance with the relevant instruction ” , the area would have been flooded regardless , but the level of water would have been CARDINAL times lower . The report also noted that ORG had not taken measures to alert the population with a view to minimising the damage caused by the flood .", "ORG then concluded that all CARDINAL expert reports singled out the exceptionally heavy rain as the main reason for the flood on DATE , and that they considered it likely that flooding would have occurred irrespective of the evacuation of water by ORG .", "The appellate court accordingly found that ORG had correctly concluded , on the basis of the available materials , that in view of the exceptionally heavy rainfall , the GPE", "Article CARDINAL provides for damage caused to the property of an individual or of a legal entity to be compensated for in full by the person responsible for the damage . The latter may be released from the obligation to make compensation if he or she can prove that the damage was not caused through his or her fault ; however , the law may provide for compensation in respect of damage even in the absence of fault on the part of the person who caused it . Damage inflicted by lawful actions must be compensated for in the cases prescribed by law .", "Article CARDINAL stipulates that a ORG agency or a ORG official will be liable towards a citizen for damage caused by their unlawful actions or failure to act . Compensation for such damage is awarded at the expense of the federal or regional treasury .", "Articles CARDINAL and CARDINAL - CARDINAL provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that compensation shall be made for non - pecuniary damage irrespective of any award for pecuniary damage .", "LAW , as in force at the relevant time , provided in its LAW that bodies of water located entirely within the territory of a particular region of GPE which were not classified as federal property could be the property of that region . Such bodies of water could be classified as regional property by the executive authorities of the region concerned , with the approval of the federal executive authorities . Regional property was managed by the regional authorities , who were entitled to transfer some of their corresponding powers to competent federal authorities .", "Under LAW regional authorities were entitled to own , use , govern and manage bodies of water in their region .", "Article CARDINAL stipulated that construction , channel dredging and blasting operations in bodies of water and their water protection zones should be carried out with the approval of the ORG agency responsible for the administration and protection of water resources .", "Article CARDINAL imposed an obligation on federal and regional executive authorities and water users to take measures aimed at preventing and repairing the consequences of damage to water as a result of flooding , impoundment , dam- and dyke - breaking , soil erosion , mudslide and the like .", "LAW of DATE No . CARDINAL-FZ “ On Protection of Civilians and ORG from Emergencies of Natural and Industrial Origin ” ( Федеральный закон от DATE г. № CARDINAL-ФЗ « О защите населения и территорий от чрезвычайных ситуаций природного и техногенного характера ORG , “ the Protection from Emergencies Act ” ) , in its section CARDINAL , imposes an obligation on the federal , regional and local authorities to promptly and accurately inform civilians through the mass media and other channels of information about any emergency situations and the safety measures taken to protect the population and about any impending disasters and means of protection against them . The same section provides for the liability of ORG officials in the event of their failure to make such information public .", "Under section CARDINAL the prevention of emergencies and the mitigation , as far as possible , of any damage and losses is a fundamental principle of emergency relief and requires that all preventive measures be taken suitably in advance .", "The Federal Law of DATE No . CARDINAL-FZ “ On ORG ” ( Федеральный закон от CARDINAL DATE г. № CARDINAL « О безопасности гидротехнических сооружений ORG , “ FAC ” ) stipulates in its LAW that , where the safety of hydraulic engineering structures is concerned , the regional executive authorities : are responsible for resolving questions of safety of hydraulic engineering structures in territories under their control ; participate in the implementation of ORG policies in that sphere ; develop and implement regional programmes on the safety of hydraulic engineering structures ; ensure the safety of hydraulic engineering structures used in connection with water resources and environmental protection measures ; take decisions on locating hydraulic engineering structures and limiting their exploitation in the event of a breach of the legislation on the safety of such structures ; help to repair the consequences of accidents at hydraulic engineering structures ; and inform the population of any accident hazard at hydraulic engineering structures that might trigger an emergency situation .", "Section CARDINAL lists various requirements to ensure the safety of hydraulic engineering structures , including ORG control in the matter ; establishing safety criteria in respect of hydraulic engineering structures and equipping them with appropriate technical means for permanent monitoring of their condition ; taking every possible step , in good time , to keep the risk of emergencies at hydraulic engineering structures to a minimum ; earmarking sufficient funding for measures aimed at ensuring the safety of hydraulic engineering structures ; and liability for actions ( or omissions ) that reduce the safety of hydraulic engineering structures to unacceptable levels .", "Section CARDINAL lays down the obligations of owners of , and bodies operating hydraulic engineering structures . It states , in particular , that they must : ensure the observance of safety rules and standards during the construction , exploitation , repair , reconstruction , conservation , dismantling , and so on , of hydraulic engineering structures ; monitor the condition of such structures ; evaluate natural and industrial threats to them and , on the basis of the data thus obtained , regularly assess the safety of hydraulic engineering structures , including analysis of the reasons for any decrease in safety , taking into account harmful natural and industrial impacts , results of industrial and other activities and the presence of objects in river channels and adjacent areas , upstream and downstream ; develop systems for monitoring the condition of hydraulic engineering structures and take timely measures to ensure their proper functioning and prevent accidents ; maintain local emergency warning systems in a state of constant readiness to raise the alarm in the event of an accident at a hydraulic engineering structure ; inform the local population on questions concerning the safety of , and accidents at , hydraulic engineering structures ; finance measures on the exploitation of hydraulic engineering structures and preventing accidents and repairing their consequences , and so on ." ]

[ "2", "8", "P1" ]

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

[ "P1-1-1" ]

[ "13", "8" ]

[]

[]

[ "The applicants were born in DATE and DATE respectively . They are a married couple and live in GPE ( GPE ) .", "In DATE , the first applicant moved from GPE to the GPE where he was employed as a dockworker until DATE , when he stopped working on account of certain mental problems apparently related to his difficulties in coping with the death of his first wife in DATE .", "After having received sickness benefits for the maximum period , he was granted combined disability benefits as from DATE under ORG ( PERSON ; “ AAW ” ) and ORG ( Wet op de Arbeidsongeschiktheidsverzekering ; “ PERSON ” ) in a decision of CARDINAL DATE and on the basis of a finding of being PERCENT incapacitated for work .", "At an unspecified date in DATE , the applicants and their family returned permanently to GPE , retaining the first applicant 's right to AAW / PERSON benefits .", "In its decision of CARDINAL DATE , on the basis of medical examinations of the first applicant carried out on DATE by an orthopaedic surgeon , and on CARDINAL DATE by a social insurance medical specialist and a psychiatrist , ORG FAC sociale verzekeringen ; “ LISV ” ) withdrew the first applicant 's AAW / PERSON benefits as from DATE , on the basis of a finding that his incapacity for work had diminished to PERCENT for the purposes of the ORG and to PERCENT for the purposes of the ORG .", "On DATE , the first applicant filed an appeal against this decision with ORG ( arrondissementsrechtbank ) . On DATE , ORG requested the first applicant to submit updated information about his medical condition and the names of the doctors who were treating him .", "Following a hearing held on DATE , ORG rejected this appeal on DATE . The first applicant filed a further appeal with ORG ( ORG ) .", "The first applicant 's lawyer submitted the written grounds for appeal to ORG on DATE . On DATE ORG confirmed receipt of the appeal and , on DATE , informed the first applicant 's lawyer that , due to its heavy workload , it would take some time before the first applicant 's appeal could be heard . The PERSON submitted its response to the first applicant 's grounds of appeal on DATE .", "On DATE , the first applicant 's case was added to ORG list of cases awaiting preparation for a hearing . On DATE , it was submitted to the presiding judge of the relevant section of ORG for entry on the case - list . On DATE , the parties were informed that a hearing had been scheduled for DATE .", "On DATE , a hearing was held before ORG . At the beginning of this hearing the first applicant 's lawyer , referring to the conclusion reached by ORG that there had been a violation of LAW on account of the duration of similar proceedings in the case of ORG v. the GPE ( application no . CARDINAL , ORG 's report of DATE , unreported ) , stated to find it incomprehensible that it should take DATE before the first applicant 's case was examined before ORG . After having noted the parties ' submissions and in accordance with a request of the first applicant 's lawyer to this effect , the ORG suspended the hearing and ordered a reopening of the investigation into the first applicant 's capacity for work , finding that this investigation had been incomplete .", "By letters of CARDINAL and CARDINAL DATE , the President of ORG put a number of questions to the psychiatrist PERSON who had examined the first applicant on DATE upon the request of the former ORG Gemeenschappelijke PERSON ) . Dr PERSON submitted his reply in the form of a report on DATE . Both the LISV and the first applicant availed themselves of the opportunity to submit comments on this report . The PERSON submitted comments on DATE and the first applicant on DATE .", "NORP By letter of CARDINAL DATE , ORG put additional questions to PERSON , who replied on DATE .", "On DATE , ORG informed the parties that a second hearing had been scheduled for DATE . The first applicant 's lawyer filed further written submissions to ORG on DATE .", "On DATE , a second hearing was held before ORG in the course of which the first applicant complained that , given the duration of the proceedings , the reasonable time requirement under LAW had not been respected .", "In its decision of DATE , ORG rejected the first applicant 's appeal and upheld the decision of CARDINAL DATE . It agreed with the PERSON and ORG that , as regards the first applicant , there were no somatic limitations such that he should be considered as being unfit to resume his work of dock worker , i.e. the work that he had done before he was declared incapacitated . As to the question whether there were limitations of a psychiatric nature , ORG accepted that the first applicant was suffering from a psychiatric disorder entailing mainly minor limitations in his social functioning . However , given the nature of the first applicant 's work , it held that this disorder was not of such nature or gravity that , on that ground , he should be regarded as being unfit for that kind of work .", "As to the first applicant 's complaint that his rights under LAW had been disrespected in that the proceedings before ORG had exceeded a reasonable time , ORG held that a failure to respect the reasonable time requirement under this provision can not result in granting social security claims that are not in accordance with the applicable statutory rules and that a claim for compensation for alleged damages suffered as a result of a failure to respect this requirement under LAW should be filed with the civil judge ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "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 M. Romanowski , a lawyer practising in Gdańsk . ORG ( “ the Government ” ) were represented by their Agent , Mr J. Wołąsiewicz of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested by the police .", "On DATE the ORG decided to place the applicant in pre - trial detention in view of the reasonable suspicion that he had committed an armed robbery as a member of an organised criminal gang .", "On DATE and DATE the ORG ( PERSON ) further extended his detention relying in particular on the risk that a heavy sentence would be imposed , which made it probable that the applicant would interfere with the course of the investigation . Moreover , the complexity of the proceedings justified keeping the applicant in detention .", "Subsequently , the applicant ’s pre - trial detention was extended , inter alia , on DATE and DATE . ORG reiterated the original grounds given for his detention and held that keeping the applicant in custody was necessary for securing the obtaining of evidence .", "On DATE the ORG ( Sąd Apelacyjny ) , upon an application from ORG ( Prokurator Okręgowy ) , further extended the applicant ’s pretrial detention . In addition to reiterating the grounds relied on previously , the court considered that the complexity of the case and the large number of coaccused justified the fear that , if released , the applicant would interfere with the course of the proper conduct of the proceedings .", "On DATE the applicant and CARDINAL other co - accused were indicted before ORG . The applicant was accused of having participated in an organised criminal gang , having committed CARDINAL armed robberies and having been in possession of an illegal firearm .", "On DATE and DATE the ORG extended the applicant ’s pretrial detention . It considered that the severity of the possible sentence justified the fear that , if released , the applicant would attempt to influence witnesses or abscond .", "Afterwards , as the length of the applicant ’s detention had reached the statutory timelimit of DATE laid down in LAW of LAW ( Kodeks postępowania karnego ) , ORG applied to ORG ( Sąd Apelacyjny ) asking for the applicant ’s detention to be extended beyond that term . On DATE , CARDINAL DATE and DATE the ORG allowed the applications and extended his pretrial detention . The court reiterated the grounds given previously .", "On DATE and CARDINAL DATE the applicant ’s detention was further extended . The court observed that the period of detention had not been excessive given the complexity of the case and the need to secure the proper course of the final stages of the trial .", "On DATE the applicant ’s detention was further extended .", "The applicant ’s numerous applications for release and appeals against the decisions prolonging his detention were to no avail .", "On DATE the ORG gave a judgment convicting the applicant as charged . The applicant was sentenced to DATE imprisonment .", "On DATE the applicant lodged an appeal with ORG . The proceedings are pending and the applicant remains in detention .", "DATE and DATE the applicant served a sentence of imprisonment ordered in another set of criminal proceedings .", "The relevant domestic law and practice concerning the imposition of pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The first applicant was born in DATE , the second applicant was born in DATE and the third applicant was born in DATE . They live in the village of GPE , LOC , in GPE .", "The first and second applicants are spouses and the parents of PERSON ORG , born in DATE , Mr GPE , born in DATE , and the third applicant .", "DATE the NORP federal military carried out a special “ sweeping ” operation in the village of GPE NORP .", "At TIME on DATE an armed clash commenced between a group of insurgents and the NORP servicemen . The insurgents hid inside a house at FAC located in the vicinity of the applicants ' family home and fired at the military . At some point NORP servicemen killed the insurgents and started checking other houses in the area .", "At that time the applicants , ORG and GPE and the first applicant 's CARDINAL daughters were inside their house . At some point a group of servicemen wearing blue camouflage uniforms and masks arrived at the applicants ' house in armoured personnel carriers ( “ APCs ” ) and entered it . The first applicant believed that the men belonged to ORG ( “ GRU ” ) . The servicemen in blue uniforms checked the PERSON ' identity papers , asked why they had been hiding insurgents and left .", "Another group of armed men who had arrived in ORG vehicles entered the applicants ' house . Those men had badges with a “ B ” letter and an eagle pinned to sleeves of their camouflage uniforms . The first applicant inferred that they were members of the ORG unit ( подразделение « Вымпел » ) . They ordered the male members of the PERSON family to lie down on the floor , lined up the women next to a wall , checked the identity papers and left .", "TIME a group of armed and masked men in yellow camouflage uniforms arrived at the applicants ' house in UAZ vehicles with illegible registration plates . The first applicant peeked out of the window and saw a motorcade of military vehicles and several APCs parked outside his house . The servicemen in the yellow uniforms checked the identity papers of the first applicant 's sons and asked them if they knew any insurgents . The young men replied in the negative . The servicemen in yellow uniforms said that it was necessary to run a check on them , and took the third applicant and ORG and GPE away .", "Shortly after the arrest of their sons the first and second applicants learned that the NORP military had established a filtration point near a poultry - house and a mill in GPE NORP . CARDINAL persons were being kept at the filtration point .", "On DATE following the arrest the second applicant went to the poultry - house . Relatives of other detained persons had gathered near the building to wait for news of their family members .", "The servicemen started releasing the detainees . Some of them told the second applicant that her CARDINAL sons were being kept inside the poultryhouse . The second applicant waited for her sons ' release for DATE .", "On DATE the third applicant was released . He had been severely beaten by the servicemen and could not walk , so he had to be carried home . His body was bruised . Once at home , the third applicant said that for DATE the servicemen had questioned and beaten him . Before the release they had made him sign a declaration stating that he had no complaints . The third applicant had not seen his brothers after the arrest but knew that they had been transferred to the mill where the headquarters of the federal military was located .", "On DATE the special “ sweeping ” operation ended .", "On DATE the first and second applicants went to the village of ORG of LOC and examined CARDINAL dead bodies , which had been burned from head to waist . The first and second applicants recognised their sons ' shoes and trousers and identified the dead as ORG and GPE . On DATE the first and second applicants took the bodies home .", "On DATE the NORP district temporary department of the interior ( “ the NORP ” ) received a report that CARDINAL men had been killed by servicemen of military unit no . CARDINAL in crossfire on the outskirts of GPE . Upon inspection of the scene of the incident CARDINAL charred corpses and CARDINAL AK-CARDINAL machine guns were discovered in the basement of a destroyed house .", "The first applicant did not apply to a prosecutor 's office after the discovery of ORG and ORG dead bodies as he feared for the safety of the third applicant .", "On DATE the NORP district department of the interior ( “ the ROVD ” ) received a report that CARDINAL charred male corpses had been discovered in the basement of a house on the outskirts of ORG . CARDINAL of those bodies were identified as ORG and GPE .", "On DATE the prosecutor 's office of LOC ( “ the district prosecutor 's office ” ) instituted an investigation into the killing of ORG and GPE under LAW of LAW ( aggravated murder ) . The case was assigned the number DATE .", "On DATE the district prosecutor 's office issued a report on the investigation , stating the following :", "“ At TIME on DATE the LOC department of the interior received a report that CARDINAL charred male corpses had been found in the basement of a residential house on the outskirts of the village of ORG .", "Later the CARDINAL bodies were identified as villagers of PERSON , namely , ORG , born in DATE , GPE , born in DATE , and PERSON , born in DATE .", "An investigation into this matter was opened by the NORP district prosecutor 's office in criminal case no . CARDINAL under LAW of LAW Criminal Code on DATE . ”", "On DATE the head of the local administration of GPE NORP described the circumstances of the LOC brothers ' arrest and the discovery of their dead bodies to the district prosecutor 's office . He stated that on DATE the servicemen of ORG had carried out a special operation to arrest insurgents , that the latter had opened fire and then had been killed and that ORG and PERSON had been taken away by the servicemen and then killed . The head of the local administration also mentioned that ORG and PERSON had not participated in illegal armed groups .", "On DATE the first applicant complained to the prosecutor 's office of GPE about the ineffectiveness of the investigation in case no . DATE .", "On DATE the prosecutor 's office of GPE informed the applicants that on an unspecified date the investigation had been resumed and was pending before the district prosecutor 's office .", "On DATE the first applicant was summoned to the district prosecutor 's office . An investigator told him that the servicemen had made a deposition explaining that his sons had been killed as they had been inside a house from which insurgents had fired at military vehicles . However , according to a statement by the owners of that house , the servicemen had killed the PERSON brothers , brought their bodies to the village 's outskirts and set the house on fire . The first applicant read that statement , but was not allowed to make a copy of it .", "On DATE the district prosecutor 's office suspended the investigation in case no . CARDINAL for failure to identify those responsible .", "On DATE the military prosecutor 's office of ORG forwarded the first applicant 's complaint to the prosecutor 's office of GPE stating that an investigation into the killing of ORG and PERSON was not pending before them .", "On DATE the prosecutor 's office of GPE forwarded the first applicant 's complaint to the district prosecutor 's office and ordered that the investigation be carried out more vigorously .", "On DATE the acting head of the department for supervision on criminal investigations of the prosecutor 's office of GPE informed the first applicant of the following :", "“ The prosecutor 's office of GPE studied the criminal case materials , quashed the decision of the investigator of the LOC prosecutor 's office on suspension [ of the investigation ] and resumed the investigation .", "You should address all further queries related to the investigation of this case to the NORP district prosecutor 's office ” .", "On DATE the PERSON requested an update on the progress of case no . DATE from the district prosecutor 's office .", "On DATE the prosecutor 's office of GPE informed the first applicant that the investigation in case no . DATE had been suspended on DATE for failure to identify those responsible and noted that the first applicant had the right to study non - classified documents from the case file on the district prosecutor 's office 's LOC .", "On DATE the district prosecutor 's office received from the SRJI a request for access to the entire investigation file in case no . DATE .", "On DATE the request was dismissed since pursuant to domestic laws a victim had no right to study a case file in its entirety prior to the completion of the investigation .", "On DATE the applicants were informed that the investigation had been resumed .", "On DATE the district prosecutor 's office instituted an investigation in case no . CARDINAL into the killings of the CARDINAL men found dead in ORG under LAW of LAW ( aggravated murder ) .", "The investigators inspected the scene of incident and found inside a CARDINAL - demolished house CARDINAL seriously burned dead bodies showing signs of a violent death , CARDINAL ORG machine guns with spent cartridges and a ORG mine . Next to the house they found CARDINAL shells for CARDINAL calibre bullets and CARDINAL shells for CARDINAL PERSON calibre bullets .", "On DATE the bodies were transferred to the deputy head of the ORG local administration , Mr M.", "On DATE the investigators questioned a serviceman from military unit no . CARDINAL , PERSON , who stated the following . On DATE a group of servicemen had been travelling past ORG when they were fired at from machine guns . Their senior officer had decided to block off the area from which the firing had come ; the servicemen had fired back . Then a storm unit had moved forward and found CARDINAL charred corpses in the ruins , CARDINAL machine guns and a mine . Some servicemen had stayed at the scene of incident , and others had gone to ORG to bring in investigators .", "On the same date Mr PERSON was questioned and stated that on DATE he had heard sounds of an explosion and machine - gun fire . Then some servicemen had come to his office and told him that he had been called out by the military commander of LOC . They had arrived at the CARDINAL - demolished house owned by PERSON . The servicemen had told PERSON that they had discovered CARDINAL charred corpses . He had not seen the bodies himself .", "On DATE an officer of military unit no . CARDINAL ( his name has not been disclosed ) was questioned as a witness and stated the following . On DATE his unit had been travelling from GPE in CARDINAL armoured personnel carriers and CARDINAL lorries after having participated in the special operation carried out there . In the vicinity of ORG their vehicles had been fired at . The officer had ordered the APCs to surround those who had opened fire . CARDINAL men had run towards a red - brick building . The servicemen had surrounded the building and fired back . At some point the servicemen had sent CARDINAL missiles from a grenade launcher ; the building had been set on fire . The officer 's subordinates had taken CARDINAL machine guns out of the building and left as they had been unable to inspect the scene more closely because of the mines scattered there . The servicemen 's actions had been strictly necessary . Other servicemen from the officer 's unit were also questioned and made identical depositions .", "A resident of ORG was questioned and stated that PERSON . 's house had been demolished in the course of a special operation on DATE .", "On DATE the district prosecutor 's office instructed the police to find witnesses and identify the deceased , but to no avail .", "On DATE the district prosecutor 's office sent a letter to the NORP district prosecutor 's office , which read , in so far as relevant , as follows :", "“ On DATE CARDINAL charred corpses of unidentified men were found in a demolished house ... in ORG . According to the statements by the servicemen of military unit no . CARDINAL , those men had been killed by them in the course of an armed clash .", "The NORP district prosecutor 's office instituted criminal proceedings in case no . CARDINAL ...", "Upon assessment of the results of an inspection of the scene of the incident it is possible to conclude that the corpses had been transferred from another place and set on fire there [ in the CARDINAL - demolished house in ORG ] . ”", "On an unspecified date in DATE ( the exact date on the copy of the document at the ORG 's disposal is illegible ) the district prosecutor 's office sent a letter to the ORG and the ROVD , which read , in so far as relevant , as follows :", "“ On DATE CARDINAL charred corpses of unidentified men were found in a demolished house ... in ORG . According to statements by the servicemen of military unit no . CARDINAL , they killed the said men in the course of an armed clash .", "... There are grounds to assume that the bodies were transferred to the said place in order to stage armed resistance to hide evidence of a murder .", "Accordingly , I would ask your unit to take the following investigative measures :", "...", "To identify the killed men ( they were most probably brought from PERSON , where a special operation had been taking place ) ... ”", "On DATE the district prosecutor 's office suspended the investigation .", "On DATE the NORP district civil registrar 's office issued death certificates in respect of ORG and PERSON , stating that they both died on DATE . Gunshot wounds to their bodies and heads were specified as the cause of the death in both cases .", "In DATE ballistic expert examinations of the bullets and shells found at the scene of incident were carried out . They did not match those in the ballistic database of GPE .", "DATE . On an unspecified date in DATE ( the exact date on the copy of the first page of the document at the ORG 's disposal is illegible ) the prosecutor 's office of GPE quashed the decision on suspension of the proceedings for the reason that “ the investigation [ had ] not actually been carried out , the decision on suspension [ had ] been taken by an investigator prematurely and unlawfully ” . It was noted that the bodies had not been formally identified and that the relatives of the PERSON brothers who had stated that the dead bodies belonged to their family members had not been questioned . Moreover , a post - mortem examination of the bodies had not been ordered and carried out .", "It appears that at some point the proceedings were resumed .", "On DATE the district prosecutor 's office ordered a postmortem examination of the CARDINAL bodies to be carried out .", "On DATE Mr S.Kh . , a resident of PERSON , was questioned as a witness . He stated that in DATE there had been an armed clash between the federal troops and insurgents in his village . The federal servicemen had also carried out a special “ sweeping ” operation , in the course of which his son and the CARDINAL PERSON brothers and their cousin had been arrested . The detainees had been brought to the mill where the military unit had been stationed . At the request of the local authorities the servicemen had released his son and PERSON . The CARDINAL PERSON brothers and their cousin , as well as CARDINAL other residents of GPE NORP , had not been released and their fate had been unknown . DATE , after the special operation in ORG , PERSON . had heard that CARDINAL unidentified dead bodies had been found there . Together with the ORG ' relatives , PERSON . had identified CARDINAL of the bodies as the LOC brothers and their cousin ; the fourth body had not been identified . All the CARDINAL bodies had been charred and covered in blood but Mr S.Kh . had not seen any firearm wounds on them .", "On DATE the first applicant was granted victim status in case no . DATE and questioned . He stated that on DATE the armed clash between the federal troops and insurgents had commenced in his village . The servicemen had taken away his sons and their cousin , PERSON for an identity check . On TIME of DATE his son PERSON had been released . On DATE he had been told that CARDINAL dead bodies had been found . On DATE the first applicant , together with the second applicant and PERSON . , had seen the burned bodies . The first applicant was only able to identify ORG and ORG by their clothes and shoes . Firearm wounds had been visible on the bodies .", "On DATE the investigators questioned PERSON , a sister of PERSON , who stated that her brother and his cousins had been arrested and detained in the mill . Later PERSON had been released but PERSON , GPE and ORG had been found dead .", "On DATE Mr Sh . Kh . , a deputy prosecutor of the town of ORG , was questioned as a witness and stated that on DATE he had visited the scene of incident together with an investigating team . They had found CARDINAL machine guns , which had been dirty and had not been used for a while . There had been gunshot wounds on the bodies . In his opinion , the deaths had occurred TIME before his arrival .", "On DATE the district prosecutor 's office suspended the investigation for failure to identify those responsible .", "On DATE the district prosecutor 's office received a letter from the ORG ; they replied to it on DATE .", "On DATE a lawyer requested the district prosecutor 's office for access to the investigation file . On DATE the request was dismissed .", "In the ORG 's submission , after DATE the investigation remained suspended . No decisions to resume or suspend the investigation were taken on DATE and CARDINAL DATE .", "On DATE the investigating unit of ORG of ORG for GPE ( “ the investigating unit ” ) resumed the investigation in case no . DATE .", "On DATE the investigating unit ordered an investigating group to be set up with the participation of civilian and military prosecutors to deal with case no . DATE . The decision read , in so far as relevant , as follows :", "“ At TIME on DATE in the village of NORP there was a skirmish between unidentified military servicemen and unidentified members of illegal armed groups . After the skirmish the unidentified servicemen kidnapped PERSON GPE , born in DATE , PERSON , born in DATE , and GPE , born in DATE , from the house at TIME .", "At TIME on DATE ( the exact time has not been established by the investigation ) the dead bodies of PERSON , born in DATE , PERSON , born in DATE , and GPE , born in DATE , as well as that of an unidentified man , were found inside a partially constructed house on the north - east outskirts of the village of ORG .", "... Having studied the case materials , [ the investigators ] established that sufficient grounds existed to assume that the crime had been committed with the participation of the servicemen of the NORP federal armed forces , which , in particular , is proven by the fact of the skirmish between the servicemen of military unit no . CARDINAL and unidentified persons . ”", "On DATE an official of the investigating unit requested his hierarchical superiors to extend the term of the investigation in case no . DATE . The request read , in so far as relevant , as follows :", "“ DATE in the village of NORP of the LOC unidentified military servicemen and officers of law - enforcement agencies [ who were ] using APCs , ORG and ORG vehicles were carrying out special operations for the identification of members of illegal armed groups . At TIME ] on DATE a shoot out started between unidentified servicemen and unidentified insurgents . After the shooting , unidentified servicemen kidnapped PERSON , born in DATE , PERSON , born in DATE , and NORP LOC , born in DATE , from the houses at CARDINAL and CARDINAL Nuradilov Street .", "At TIME on DATE ... the dead bodies of PERSON , born in DATE , PERSON , born in DATE , and GPE , born in DATE , were discovered in ... ORG . ”", "Despite the ORG 's request to the ORG to submit the entire investigation file in case no . DATE , they failed to do so . They submitted what they described as “ the main materials of the investigation file ” , sixtytwo pages of copies of documents with inconsistent numeration , among which were the following : the decision to open criminal proceedings ; the record of the scene of incident inspection ; a statement confirming that Mr PERSON took CARDINAL bodies away to bury them ; CARDINAL page of the record of Mr I. 's interview ; Mr. PERSON 's interview record ; CARDINAL page of the interview record of an officer from military unit no . CARDINAL ; copies of instructions by the investigators to the police ; an order to carry out a ballistics expert examination ; a certificate confirming that PERSON was transporting the bodies of the PERSON ; a certificate issued by the Shali ROVD on DATE ; ballistics expert examination reports ; decisions to suspend and resume the investigation ; orders to carry out medical expert examinations ; a record of PERSON . 's interview , decisions to grant victim status to the first applicant and PERSON and their interview records ; the death certificates of ORG and GPE ; a decision dismissing the request for access to the investigation file ; and a decision to compose an investigating group . The Government explained that since the investigation in case no . DATE was in progress , disclosure of all the documents would be in violation of LAW as it would run contrary to the interests of the parties to the proceedings .", "For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) ." ]

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

[]

[]

[]

[]

[]

[ "ORG Mr PERSON and his wife , PERSON , née PERSON , chose to give their daughter , born on DATE , the forenames \" PERSON , PERSON , PERSON \" . After consulting ORG at PERSON , the registrar of births , deaths and marriages for ORG , to whom the child 's birth had been declared , refused to register the first of these names on the ground that it did not appear in any calendar of saints DATE . The birth certificate drawn up at the time mentions only \" Armine , Angèle \" .", "ORG In a judgment of CARDINAL DATE the PERSON tribunal de grande instance dismissed the applicants ' main application for an order that the forename \" PERSON \" be added as their daughter 's first forename , but granted their application made in the alternative for the addition of \" PERSON \" . It held as follows :", "\" ORG objected to the application on the grounds that whereas ' PERSON ' and ' PERSON ' are , when taken separately , acceptable first forenames under NORP law , that is not the case with ' PERSON . The applicants submit that ' PERSON is composed of CARDINAL forenames recognised by NORP law , which when linked by the preposition ' de ' form the name of the heroine of LOC PERSON , a work which is world - famous . However , although a forename may be composed of CARDINAL names already in use , it can not , as in the present case , consist of a combination of CARDINAL names linked by a preposition since it would cease to be a mere reuse of a traditional boy 's or girl 's name and become an image invented at the whim of individuals , for all that they might possess as lively an imagination as LOC . In any event , this was not the intention of the legislature when it regulated the choice of forenames . Consequently , the main claim in the application must be dismissed but there is no reason not to grant the claim made in the alternative relating to the forename ' PERSON . For these reasons , ... Dismisses the applicants ' application for an order that the forename ' PERSON be added as the first forename of the child born on DATE and already called PERSON . Declares , on the other hand , that the forename ' PERSON is acceptable under NORP law and orders that it be added as the first forename of the above - mentioned child . Orders that the operative provision of this judgment ordering the addition of the first forename be entered in the margin of the child 's birth certificate . Orders that no certified copy of the certificate shall be delivered without the said addition .", "( ... ) \"", "Mr and PERSON appealed to ORG , which on DATE upheld the judgment of the court below in the following terms :", "\" ( ... )", "Although in spite of the mandatory requirements of the LAW Germinal Year XI , which provides that forenames must be chosen from the various calendars in use , case - law is tending towards a more liberal approach in order to take account of changes in social mores , local customs and family traditions , it is necessary to prevent parents from choosing forenames which are excessively whimsical and so eccentric that the child is likely to be the first victim . This is the case with the forename ' PERSON , notwithstanding that it was the name of the heroine of a famous literary work . On the other hand , there is no reason not to allow the claim made in the alternative that the forename should consist of the CARDINAL forenames ' PERSON ' and ' PERSON ' juxtaposed .", "( ... ) \"", "ORG Relying in particular on LAW , CARDINAL and CARDINAL of the Convention ( article CARDINAL , article CARDINAL , article CARDINAL ) , the applicants appealed on points of law to ORG ( ORG ) , which dismissed their appeal on DATE on the following grounds :", "\" ( ... )", "the provisions of LAW are not contrary to ... Articles [ CARDINAL , CARDINAL and DATE ] ( article CARDINAL , article CARDINAL , article CARDINAL ) of ORG , which merely establish general principles relating to respect for private and family life , freedom of conscience and the prohibition of discrimination between individuals ; ... ... ORG , which was not obliged to go into the finer detail of the parties ' reasoning , held , in the exercise of its unfettered discretion , that the chosen forename , because it was eccentric and excessively whimsical , and notwithstanding that it was the name of the heroine of a famous literary work , was likely to harm the interests of the child ; in so doing , ORG justified its decision in law", "( ... ) \"", "ORG LAW provided :", "\" The birth certificate shall state the date , time and place of birth , the sex of the child and the forenames to be given it , the forenames , surnames , ages , occupations and addresses of the father and mother and , if applicable , those of the person registering the birth ... The forenames which appear on a child 's birth certificate may , where there is a good and lawful reason , be amended by an order of the tribunal de grande instance made on an application by the child or , during the child 's minority , by the child 's legal representative . The order shall be made and published in accordance with the conditions set out in Articles CARDINAL and CARDINAL of this Code . The addition of forenames may likewise be ordered . \"", "The Law of CARDINAL Germinal Year ORG and its application", "ORG LAW of CARDINAL Germinal Year XI provided :", "\" ( ... )", "only names in use in the various calendars , and those of known figures of ancient history may be entered as forenames in birth registers ; registrars shall not enter any other names in their registers . \"", "The ministerial circular of DATE amending the general circular on civil status ( ORG of DATE ) laid down in particular :", "\" ( ... )", "CHOICE OF ORG", "( ... )", "General principles", "( ... )", "Practical application", "( a ) It should , however , be observed that the impact of custom in this field has considerably reduced the restrictions which were initially placed on the acceptance of forenames by the provisions of the LAW Germinal Year ORG taken literally . It is true that these provisions are of practical value in that they provide registrars of births , deaths and marriages with a bulwark against innovations which appear to them to be such as might later harm children 's interests and which would therefore be unacceptable . In practice , registrars of births , deaths and marriages , who have to take the immediate decision whether a forename is acceptable , can hardly be expected to compile a list of the exact resources of the calendars and of ancient history in order to determine whether a given forename is included in this heritage or not . In practice they are required to use common sense when exercising their discretion , so as to ensure that the law is applied with a measure of realism and liberality , in other words in such a way that the changes in social mores which have hallowed certain usages are not ignored and that surviving local characteristics and even family traditions which can be shown to exist are respected . Registrars must not lose sight of the fact that it is for parents to choose forenames and that , to the fullest extent possible , any wishes they may have expressed should be taken into account . ...", "( b ) In addition to the forenames normally allowed within the strict limits of LAW , the following may therefore possibly be accepted , having regard to the foregoing considerations and , where applicable , subject to appropriate evidence being produced :", "certain forenames of mythological origin ( such as ORG , etc . ) ;", "certain forenames peculiar to local languages of the national territory ( NORP , GPE , NORP , etc . ) ;", "certain foreign forenames ( such as PERSON , PERSON , PERSON , PERSON , etc . ) ;", "certain forenames which correspond to words that have a specific meaning ( such as ORG , PERSON , etc . ) or even old surnames ( such as GPE , PERSON , PERSON , PERSON , etc . ) ;", "compound forenames , provided that they do not include CARDINAL simple names ( such as PERSON or PERSON - GPE but not , for example , PERSON , which would be a combination of CARDINAL forenames ) .", "( c ) Exceptionally , registrars of births , deaths and marriages may also accept , but with some caution :", "certain diminutives ( such as ' ORG PERSON , ' PERSON ' for PERSON , or even ' Line ' , which is derived from feminine forenames containing that ending ) ;", "certain shortened forms of double names ( such as ' PERSON ' for PERSON , ' PERSON ' or ' PERSON ' for PERSON , ' PERSON ' for PERSON , ' PERSON ' for PERSON , etc . ) ;", "certain variations in spelling ( for example PERSON or PERSON , PERSON or PERSON , Ghislaine or PERSON , PERSON or ORG , etc . ) .", "( d ) Ultimately , it would appear that registrars of births , deaths and marriages should only refuse to enter names chosen by parents which have not been demonstrably established as forenames in GPE by sufficiently widespread use . Thus , in particular , registrars should systematically refuse to enter forenames which are purely whimsical or names which , by reason of their nature , meaning or form can not normally constitute forenames ( surnames , names of objects , animals or qualities , words used as stage names or forenames or as pseudonyms , names that are onomatopoeic or recall political events ) .", "( ... ) \"", "In a judgment of DATE ORG stated that \" parents can in particular choose as forenames , subject to the general reservation that , in the child 's interest , they are not found to be ridiculous , names in use in the various calendars ; and while no official list of permitted forenames exists , there is no ground for requiring that the calendar relied on emanate from an official authority \" ( ORG , DATE , PERSON DATE , p. CARDINAL ) .", "The Law of CARDINAL Fructidor Year II provided - and still provides :", "\" No citizen may bear a surname or forename other than those stated on his birth certificate ; those who have abandoned their original names shall resume them . \"", "\" Neither may any nickname be added to the original name , unless it has hitherto been used to distinguish members of the same family and does not evoke feudal or nobiliary attributes . \"", "\" All public servants are expressly prohibited from referring to citizens in documents otherwise than by their surnames , the forenames shown on the birth certificate or the nicknames permissible under LAW and from recording any other names in the certified copies or short - form certificates which they issue subsequently . \"", "Law no . CARDINAL of DATE on civil status , the family and children 's rights , which created the office of family - affairs judge , repealed the PERSON of CARDINAL Germinal Year XI and replaced the last CARDINAL paragraphs of LAW by the following provisions :", "\" A child 's forenames shall be chosen by its father and mother", "( ... )", "The registrar of births , deaths and marriages shall immediately enter the chosen forenames on the birth certificate . Any forename recorded on the birth certificate may be chosen as the usual forename . Where the said forenames or any CARDINAL of them , either taken alone or linked to the other forenames or to the surname , appear to the registrar to be contrary to the child 's interests or to the right of third parties to protect their surname , the registrar of births , deaths and marriages shall immediately so inform ORG , who may then refer the matter to the family - affairs judge . If the judge considers that the forename is contrary to the child 's interests or infringes the right of third parties to protect their surnames , he shall order the name to be deleted from the registers of births , deaths and marriages . If the parents fail to choose an alternative name compatible with the aforementioned interests , he shall give the child another forename of his own choosing . The decision shall be noted in the margin of all documents relating to the child 's civil status . \"", "On the other hand , the PERSON of DATE did not repeal PERSON" ]

[]

[]

[]

[ "8" ]

[]

[]

[ "The applicant , ORG , is a NORP national who was born in DATE and lives in GPE . She is represented before the ORG by Mr PERSON , a lawyer practising in ORG .", "On DATE , at TIME , PERSON , the applicant 's husband , was taking his animals out to graze on pastures that were CARDINAL to QUANTITY outside of the village of GPE , when he saw an unidentified object . He bent down and picked it up but when he realised that it could contain explosives he threw it away . At that moment there was a large explosion and Mr Evcil was wounded by shrapnel . His CARDINAL sheep died on the spot .", "PERSON , a shepherd , who was accompanying him , ran towards the village for help . Road workers , who were working on a construction site at QUANTITY away from the scene of the incident , also heard the explosion . Mr PERSON , the construction site manager , immediately informed the security forces , who were stationed QUANTITY away .", "At TIME , the applicant and her children arrived in a minibus , from Pertek which was QUANTITY away from the scene of the incident . They first took Mr Evcil to ORG . Following an initial medical treatment in ORG , he died during his transfer to ORG .", "On DATE ORG initiated an investigation into the incident . Upon the public prosecutor 's request an autopsy was carried out on PERSON in ORG . The autopsy report contained a brief summary of the incident . There it was noted that the incident took place TIME Moreover according to this report , it was established that Mr ORG had died as a result of a haemorrhage , between CARDINAL am and CARDINAL am . The applicant 's son identified the body in the morgue .", "Meanwhile the gendarmes drafted an incident report and made a sketch map of the scene of the incident . According to this report the incident occurred at TIME They also took statements from CARDINAL eyewitnesses .", "In his statement taken by the gendarmes Mr PERSON submitted that his colleagues had informed him of the explosion while he was working on the construction site . He reported the incident to the security forces who told him that they had not opened fire . Moreover they told him that a “ special team ” would arrive shortly . Subsequently , Mr PERSON went to the scene of the incident with the security forces and talked with the applicant 's husband about what had happened . After Mr ORG had been taken to ORG , Mr PERSON called ORG in order to inform them of the incident .", "In his statement PERSON , a road worker , said that at TIME he had heard a large explosion and saw smoke . He had also heard someone shouting in NORP for help . He stated that he had immediately informed Mr PERSON .", "On DATE ORG gave a decision of non - jurisdiction ratione loci and transferred the case file to ORG .", "On DATE ORG took the applicant 's statements . She stated that the incident occurred TIME She expressed the view that the security forces were responsible for the death of her husband because they had not provided him with any help despite having the means of doing so . The applicant claimed that if her husband had been taken to a hospital earlier , his life could have been saved . She believed that the explosive material that caused her husband 's death had not been left by terrorists , but by the security forces .", "On DATE ORG of the Police in GPE carried out a ballistic examination of the shrapnel collected at the scene of the incident . According to ORG report dated DATE , the pieces gathered from the scene of the incident contained nitro - glycerine and nitrite , both explosive materials .", "On DATE ORG sent the pieces of shrapnel collected from the scene of the incident to ORG for further examination .", "On DATE ORG submitted the results of the ballistic examination to ORG . In the ballistic report it was stated that the CARDINAL pieces of shrapnel sent for examination bore resemblance to the outer layer of a tracer bullet which could be fired from a QUANTITY diameter M-CARDINAL ACARDINAL/ACARDINAL type of LAVA missile launcher . It was further stated that ORG ( ORG ve Kimya Enstitüsü – hereinafter “ ORG ” ) produced these tracer bullets for military purposes and that their commercial sale was prohibited .", "In a letter dated DATE and addressed to ORG , ORG inquired whether the security forces at ORG had been using the type of tracer bullet mentioned in the ballistic report .", "On DATE ORG replied that they had not been using the type of tracer bullet which was referred to in the ballistic report , however it was probable that other security forces in the district had been using this type of bullet .", "In a letter dated DATE and addressed to the CARDINAL . ORG in GPE , ORG inquired whether the security forces in the entire district of Pertek had been using this type of tracer bullet .", "On DATE the CARDINAL . ORG in GPE informed ORG that it was highly probable that the tracer bullet recovered from the scene of the incident had been left by terrorists . They submitted that it was a well - known fact that terrorists illegally obtain and use the weapons and the bullets produced by ORG . Furthermore , they maintained that , as the incident had taken place outside the area where the security forces practice shooting , there could be no responsibility attributable to the security forces in relation to the death of the applicant 's husband .", "On DATE the ORG gave a decision of non - prosecution , as no crime could be attributable to the security forces and those responsible for the incident could not be identified .", "In DATE ORG reinitiated the investigation . On DATE ORG issued a permanent search warrant valid for DATE from the date of the incident . According to this warrant the security forces have to carry out a rigorous investigation into the identification of the perpetrator(s ) until the search warrant expires .", "In a letter dated DATE ORG requested information from ORG in order to establish if the military forces in the area had used the type of tracer bullet in question at any time and if the residents of the area had been warned about the explosive materials that could be found in the vicinity . Furthermore he asked to be kept informed of any development in the investigation into the death of the applicant 's husband until the statutory time limit expired .", "On DATE ORG took statements from the village headman of LOC village at the time of the incident ; the present village headman ; the shepherd who was grazing his sheep with Mr ORG and the driver of the minibus who took PERSON ORG to the hospital . They all confirmed the facts of the incident , without mentioning the exact time of the incident .", "On DATE ORG informed ORG that the NORP military forces had not used the type of tracer bullet responsible for the death of Mr Evcil since DATE , because it was expensive . However these bullets were still being produced by some ORG allies and it was observed that terrorists had been using them . Moreover they submitted that the villagers had been warned through the local press that any ammunition found in the area could be explosive and therefore they should immediately inform the security forces without handling them personally .", "On DATE ORG informed ORG that the inquiries in relation to the identification of those responsible for the incident conducted so far had remained unsuccessful and that they were still actively being searched for . On DATE ORG issued a report similar to the previous one and submitted it to ORG . The last report of similar kind was issued on DATE .", "A description of the relevant domestic law can be found in GPE v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE an article was published in the DATE newspaper PERSON entitled “ The uncle was stealing , PERSON was standing guard ” ( PERSON крадел , Јован чувал стража ) . A reference to the article appeared on the front page of the newspaper . The text of the article read , in so far as relevant , as follows :", "“ PERSON , uncle of dismissed bishop PERSON and owner of the company ORG from GPE , together with CARDINAL boys , entered the courtyard of GPE church in PERSON and continued towards the church garage . The uncle started the engine of the tractor [ inside ] and drove it out of the courtyard , while his helpers warned the church housekeeper , who was upset , to step aside . During the violent disturbance , the dismissed bishop PERSON drove around waiting for the outcome ...", "... On the basis of an anonymous tip - off concerning the break - in , police stopped the tractor from leaving PERSON . The owner of ORG , [ the applicant ] , produced documents [ showing ] that ORG owned the tractor ! Only dismissed bishop PERSON knew how the tractor , which was a donation by GPE to PERSON ’s church co - operative , happened to belong to a private company from GPE ... ( GPE ) ”", "The applicant submitted a letter to the newspaper DATE , in which he requested that it publish a retraction given the false allegations that he had stolen the tractor . In this connection he submitted a copy of a certificate issued by ORG confirming that the tractor had been returned to him . He alleged that in the absence of a retraction , he would be perceived as a criminal in GPE , a small town where people knew each other . The newspaper did not publish anything in this regard .", "On DATE and after several verbal requests , the applicant submitted a letter to the newspaper seeking information about the identity of the journalist ( GPE ) , whose initials appeared at the end of the article .", "On DATE ( as alleged by the applicant ) or DATE ( according to the Government ) the applicant brought private criminal charges for defamation under sections CARDINAL ) and ( CARDINAL ) and CARDINAL ) of LAW , which was an offence punishable under LAW ) of LAW ( see paragraphs CARDINAL , DATE and CARDINAL below ) . The complaint was made against ORG , editor - in - chief of the newspaper and GPE , the journalist responsible . The applicant claimed that the article had disgraced him and his family and said that he was seeking compensation for non - pecuniary loss , the amount of which was to be specified , as stated in the complaint , at the hearing .", "On DATE and DATE respectively ORG ( “ the trial court ” ) requested that the applicant complete the complaint by providing information about the identity of GPE , describing the actions imputable to the accused and submitting an original of the article . In reply , the applicant specified his complaint and informed the trial court that all his attempts to get the newspaper to reveal the identity of the journalist responsible had been to no avail .", "During the proceedings the applicant was represented by a lawyer practicing in GPE . The applicant alleged ( without providing any evidence in support ) that the first hearing had been scheduled for DATE ; however , the parties agreed that between DATE and DATE , the trial court had fixed CARDINAL hearings , of which CARDINAL were adjourned owing to the absence of either ORG , his representative or the journalist responsible . The trial court made several unsuccessful attempts to secure ORG ’s attendance with the assistance of the police . The applicant or his representative attended all the hearings scheduled .", "At a hearing on DATE , the trial court requested that the newspaper reveal the identity of GPE , the presumed author of the article . In the absence of any reply from the newspaper , the trial court made the same request on DATE and DATE , as well as on DATE , but they were never answered .", "At a hearing on DATE , ORG admitted that he had allowed the article to be published and requested additional time to identify the journalist who had written it . In a statement given on DATE , the applicant avowed that the article in question had contained defamatory allegations portraying him as a thief , which had had a significant negative impact on his personal and family life . In this connection he argued that his wife had closed her private medical practice since her office had been covered with writings describing them as “ thieves ” ( арамии ) . He also alleged that his children had encountered difficulties in school due to the defamatory article .", "At a hearing on DATE , ORG stated that according to the newspaper ’s records , the author of the text had been a certain ORG , who had confirmed as much in a telephone conversation with him . The court ordered that PERSON be summoned to the next hearing . His home address was to be obtained with the assistance of the police .", "K.J. did not attend any of the CARDINAL hearings scheduled DATE and DATE , despite the fact that the court had summoned him to do so . At the DATE hearing , the trial court stayed ( запира ) the proceedings because the prosecution had become time - barred . It also ordered each party to bear its own costs and expenses incurred in the proceedings . On DATE ORG upheld the judgment , which was served on the applicant on DATE .", "During the proceedings , the applicant addressed the trial judge and the president of the trial court on QUANTITY occasions , complaining about the way in which the trial had been conducted and alerting them to the possibility that the prosecution might become time - barred .", "The relevant parts of the above ORG read as follows :", "“ CARDINAL . Anti - defamation laws pursue the legitimate aim of protecting the reputation and rights of others . The ORG nonetheless urges member states to apply these laws with the utmost restraint since they can seriously infringe freedom of expression ...", "ORG the fact that in a number of member states prosecution for defamation is misused in what could be seen as attempts by the authorities to silence media criticism ...", "The ORG consequently takes the view that prison sentences for defamation should be abolished without further delay . In particular it exhorts states whose laws still provide for prison sentences DATE although prison sentences are not actually imposed DATE to abolish them without delay so as not to give any excuse , however unjustified , to those countries which continue to impose them , thus provoking a corrosion of fundamental freedoms ...", "The ORG accordingly calls on the member states to :", "abolish prison sentences for defamation without delay ;", "guarantee that there is no misuse of criminal prosecutions for defamation and safeguard the independence of prosecutors in these cases ;", "define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law and to ensure that civil law provides effective protection of the dignity of persons affected by defamation ... ”", "Section CARDINAL of LAW provides for the right to claim civil compensation .", "Section CARDINAL provides that an employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to them . A victim can claim compensation directly from the employee if the damage was caused intentionally . The employer can seek reimbursement of the compensation awarded to the victim from the employee if he or she caused the damage intentionally or negligently .", "Section CARDINAL provides for the right to claim compensation in cases regarding damage to reputation or the dissemination of false allegations .", "NORP Under sections CARDINAL and CARDINAL , the court can order the publication of a judgment in which a human rights violation has been found , a retraction or any other form of redress . The court can also award just satisfaction irrespective of whether an award for pecuniary damage has been made .", "Under LAW , a compensation claim becomes time - barred DATE after the victim becomes aware of the damage and the person responsible . The absolute limitation period for compensation is DATE after the occurrence of the damage .", "The running of the limitation period is suspended if a claimant brings an action before a court or competent authority with a view to determining or securing his or her claim ( section CARDINAL ) .", "NORP Under section CARDINAL , if a court rejects an action for lack of competence or on another ground unrelated to the merits of the claim , and if the claimant resubmits that claim within DATE of the decision becoming final , the limitation period is considered to have been suspended by the first action . This applies if a court or competent authority advised the person concerned to pursue his or her claim by means of a separate civil action .", "After the limitation period has been suspended , it starts running again and the time elapsed before the suspension is deemed to fall within the statutory limitation period . If the limitation period was suspended by a claim brought in the course of other proceedings , it starts running after settlement of the dispute ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) .", "Under section CARDINAL(CARDINAL)(CARDINAL ) of LAW , an editor - in - chief of a newspaper or other periodical publication could be held criminally liable for offences committed through that or other types of media if the identity of the author remained unknown until DATE trial .", "Under section CARDINAL ) and ( CARDINAL ) of LAW , any person who disseminated false defamatory allegations about another person could be subjected to a fine or CARDINAL months’ imprisonment . Acts of defamation committed in public or through the use of media were punishable by a fine and by DATE imprisonment .", "Under section CARDINAL ) , defamation as stipulated in section CARDINAL was subject to private prosecution .", "NORP Since DATE , sections CARDINAL and CARDINAL of LAW ( see paragraphs CARDINAL above ) have no longer been in force ( Official Gazette no . CARDINAL ) .", "Under LAW of LAW , in force at the material time , proceedings were supervised by a judge , who was responsible for conducting them without delay .", "Under section DATE ) and ( CARDINAL ) of the LAW , criminal proceedings were instituted at the request of an authorised prosecutor . In respect of criminal offences subject to public prosecution , the authorised prosecutor was the public prosecutor whereas in respect of criminal offences to be prosecuted privately , the qualified prosecutor was a private prosecutor .", "Section CARDINAL provided that a civil - party claim ( имотноправно барање ) relating to a criminal offence was to be decided in criminal proceedings , unless it significantly delayed them . The civil - party claim could concern monetary compensation , the restitution of property or the annulment of a legal act .", "Under section CARDINAL(CARDINAL ) and ( CARDINAL ) , a civil - party claim could be brought in the course of the criminal proceedings before they were concluded at first instance . Such a claim had to be specified and supported with evidence .", "Section CARDINAL(CARDINAL ) provided that the victim could withdraw ( откажe ) the civil - party claim until DATE trial and pursue it by means of a separate civil action . Such a claim could not be repeated in the course of the criminal proceedings , unless otherwise provided by law .", "Under section CARDINAL , the court could question the accused and examine the circumstances relevant for the civil - party claim , and had to collect evidence and consider everything that was relevant to decide it . If a decision on the civil - party claim would significantly delay the proceedings , the court would restrict itself to gathering evidence which would be impossible or significantly difficult to gather at a later stage .", "Section CARDINAL provided that the court was responsible for deciding a civil - party claim . If the court found the accused guilty as charged , the victim could be awarded full or partial compensation . In the latter case , the court could advise him or her to seek the remainder by way of civil proceedings . The same applied if evidence taken in the criminal proceedings was insufficient for the court to award any damages ( section CARDINAL(CARDINAL ) ) .", "In case of an acquittal or dismissal of the prosecution , if the proceedings were discontinued or the indictment was rejected , the court was to advise the victim to pursue his or her civil - party claim by way of civil proceedings ( section ORG ) ) .", "Under section ORG ) , criminal proceedings had to be instituted on the basis of either a charge brought by the public prosecutor or a private criminal complaint .", "Sections CARDINAL of LAW DATE , which enter into force on DATE , provide for the same rules on civil - party claims as those specified in the CARDINAL Criminal Proceedings Act ( see paragraphs CARDINAL - CARDINAL above ) .", "NORP Under section ORG , civil courts are bound by judgments given by criminal courts finding an accused guilty , in respect of the commission of the offence and the convict ’s criminal liability .", "LAW lists grounds under which civil proceedings are stayed by operation of the law . Under section ORG ) , the civil court may stay proceedings if the decision depended on whether n offence subject to ORG prosecution had been committed , who the perpetrator was , and if he or she was found guilty .", "The Law concerns civil liability for violation of the honour and reputation of physical and legal persons through insult or defamation . The law provides for freedom of expression and states that any restrictions thereon shall be in conformity with LAW and the ORG ’s case - law . Under the PERSON , the potential victim can seek publication of a retraction , a public apology or rectification . It further regulates the procedure regarding claims for compensation for pecuniary and non - pecuniary loss sustained as a result of the insult or defamation , as well injunctions the court can order if parties so request .", "The Government submitted a copy of a final judgment of CARDINAL DATE , in which the courts accepted a compensation claim concerning defamatory statements the defendant ( a journalist ) had made in a DATE newspaper . The compensation claim was brought after criminal proceedings instituted by the claimant against the defendant had been stayed because of the absolute limitation period . In the judgment , the courts found that the termination of the criminal proceedings had not been binding on the civil courts in respect of the claimant ’s action for damages ( ПCARDINAL.бр.CARDINAL/CARDINAL ) .", "They further provided a copy of a judgment in which ORG dismissed a legality review request ( барање за заштита на законитоста ) lodged against final judgments rendered in civil proceedings . It concerned a dismissal by the lower courts of an action for damages brought DATE after an alleged crime had been committed and after the criminal courts had acquitted the alleged offender . ORG found that the statutory limitation period for compensation claims relating to an alleged crime started to run from the moment the victim had lodged a civil - party claim in the criminal proceedings . Since the victim had not made such a claim , the fact that he had instituted the criminal proceedings had not suspended the running of the statutory limitation period concerning the compensation claim ( ORG of CARDINAL and DATE ) ." ]

[ "6", "8" ]

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

[]

[]

[]

[]

[ "The applicant [ PERSON ] is a NORP national who was born in DATE and lives in GPE . He is a lawyer .", "In connection with criminal proceedings for misappropriation of assets , brought against the applicant by GPE investigating judge no . CARDINAL , the applicant was awarded legal aid and a lawyer was assigned by the court to assist him .", "At the public hearing of the case the applicant ’s officially assigned lawyer raised an objection , as a preliminary issue , on the ground that the applicant had informed her that he no longer had confidence in her ability to represent him because she was specialised in labour law and not criminal law . She requested the judge to suspend the hearing In a judgment of DATE GPE criminal - court judge no . CARDINAL dismissed that objection on the ground that criminal law , as such , did not constitute a specialisation . He added that the applicant , who had not appointed a lawyer of his choice , had not expressed any intention to defend himself either . He also referred to the lawyer ’s professional experience . On the merits , the court found the applicant guilty of the offence of misappropriation , sentenced him to CARDINAL months’ imprisonment and ordered him to pay damages to the victim of the offence .", "The applicant appealed against that judgment to ORG . He disputed the judge ’s legal classification of the offence with which he had been charged . A new lawyer – this time one matching his requirements – was appointed by that court to assist him . In a judgment of CARDINAL DATE , delivered after proceedings deemed to be inter partes , ORG dismissed the appeal and upheld the lower court ’s judgment . That judgment was served on the applicant ’s officially assigned lawyer on DATE . According to the applicant , the officially assigned lawyer did not send him a copy of the judgment upholding his conviction . The applicant therefore personally contacted ORG asking it to serve the judgment of DATE on him directly , which was done on DATE .", "On DATE the applicant lodged an amparo appeal with ORG . He relied on LAW ( right to a fair trial ) . In his grounds in support of his amparo appeal , the applicant ’s representative stated that the judgment of ORG had been served personally on his client on DATE .", "In a decision of CARDINAL DATE ORG held the amparo appeal to be inadmissible on the ground that it had been lodged out of time . The court gave the following reasons for its decision :", "“ As this court has stated on many occasions ( see , among others , the decisions of ORG , DATE , CARDINAL/CARDINAL , DATE and CARDINAL ) , service of documents on the representative of a party to a trial shall produce the same effects as service on the represented party where section CARDINAL(CARDINAL ) of LAW ( ORG ) does not require personal service for the purpose of calculating the relevant time - period . That is so irrespective of the fact that the rules of ordinary law can impose an additional requirement of serving judgments personally . Consequently , if account is taken of the fact , as can be seen from the file , that the appellate court ’s judgment was served on the applicant ’s lawyer on DATE , the amparo appeal of DATE was lodged out of time because it was lodged long after the DATE time - limit provided for by section CARDINAL(CARDINAL ) of the ORG for lodging a constitutional appeal . ”", "LAW", "“ The time - limit for lodging an amparo appeal shall be DATE from service of the decision delivered in the judicial proceedings . ”", "Code of Criminal Procedure", "“ Final judgments shall be delivered and served on the parties and their lawyers ... ”" ]

[]

[]

[]

[]

[]

[]

[ "The first applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . In DATE the first applicant ’s sons , M r PERSON , born in DATE , and Mr PERSON , born in DATE ( the second and the third applicants , both NORP nationals ) , joined the proceedings before the ORG .", "The applicants were represented before the ORG by PERSON , a legal adviser practising in GPE . The respondent Government were represented by their agent PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE , by decision of a ORG authority the first applicant and her husband were granted the right to use CARDINAL rooms and the kitchen in an apartment in GPE . In DATE , after the birth the second applicant , the competent authority allocated an additional room to the family . At that time the apartment , which covered QUANTITY , belonged to a private joint - stock company .", "In DATE the property of the company was expropriated without compensation . In DATE the apartment at issue was allocated to ORG at ORG . In DATE the fund issued a tenancy order to the first applicant ’s husband .", "In DATE , at a time when he was Deputy Minister of Defence , the first applicant ’s husband purchased the whole apartment from ORG . In accordance with the applicable rules of family law , the first applicant acquired CARDINAL of the property .", "In DATE the heirs of the pre - nationalisation owners of the apartment brought an action against the first applicant ’s husband under section CARDINAL of LAW . The applicants were not parties to the proceedings .", "On DATE ORG granted the claim . It found , inter alia , that the apartment had been purchased in breach of the relevant housing regulations as in force in DATE since it had been significantly larger than permitted for a CARDINAL - member family , as the applicants’ . The court also found that certain procedural rules had not been complied with and that , in all likelihood , the first applicant ’s husband had abused his position of Deputy Minister of Defence .", "On appeal , on DATE the ORG quashed ORG judgment and dismissed the claim of the pre - nationalisation ORG heirs . The court found that all relevant regulations as in force DATE had been complied with and that the allegation that the first applicant ’s husband had abused his position was groundless .", "The heirs of the pre - nationalisation owners submitted a petition for review ( cassation ) .", "On DATE ORG quashed ORG judgment and upheld ORG judgment .", "ORG agreed that the allegation of abuse of office had not been proven . However , the apartment had largely exceeded the needs of the applicants’ family under the rules applicable at the relevant time . As a result , the title of the first applicant ’s husband to the apartment at issue was null and void .", "The judgment of CARDINAL DATE was final and enforceable .", "On an unspecified date shortly after DATE the first applicant , who had not been a party to the proceedings until then , submitted a request for reopening , stating that in accordance with LAW she should have been cited as a party since she was the owner of CARDINAL of the apartment at issue .", "The first applicant ’s husband died in DATE . The first applicant and her CARDINAL sons ( the second and the third applicants ) were his heirs .", "By judgments of DATE and DATE , ORG quashed the judgments of DATE and CARDINAL DATE and reopened the case . The court found that , in violation of the relevant provisions of LAW , the first applicant had not been summoned as a party to the DATE proceedings .", "All CARDINAL applicants became parties to the reopened proceedings .", "On DATE the ORG decided to refer the case for renewed examination by ORG . That decision was quashed by ORG on DATE , as the reopened case fell to be examined by ORG .", "On DATE the ORG found that the DATE transaction was null and void , having regard to the fact that the apartment at issue had largely exceeded the applicants’ family ’s needs as determined by the relevant housing regulations . The court thus upheld ORG judgment of DATE .", "The applicants appealed . The proceedings are currently pending before ORG which listed a hearing for DATE .", "In the meantime , DATE , there were separate rei vindicatio proceedings between the same parties regarding the same apartment . The proceedings ended in DATE by judgment rejecting the pre - nationalisation ORG claim , apparently on the basis that the proceedings under section CARDINAL of LAW were still pending .", "The applicants continue to possess the apartment at issue .", "These are summarised in the case of ORG and Others v. GPE , nos . CARDINAL , ORG , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL/CARDINAL , ORG , and CARDINAL , DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The first applicant lived in GPE until he was DATE and then in GPE until he was DATE , after which he returned to GPE .", "In DATE he was convicted of rape , possessing an imitation firearm and attempted murder . He was sentenced to CARDINAL concurrent terms of imprisonment , the longest term being DATE .", "On DATE the first applicant attended a meeting in the “ C wing Interview Room ” with his probation officer for the preparation of his parole assessment report . The probation officer alleged that the first applicant threatened to kill her if she did not write down what he said . The first applicant was charged with an offence contrary to Rule CARDINAL ) of the Prison Rules DATE ( “ the Prison Rules ” ) .", "He was “ put on report ” and an adjudication hearing before the Governor was convened for DATE . The first applicant requested legal representation in a form submitted to the Governor dated DATE and also during the hearing on DATE before the Governor . His reasons for such a request were not considered sufficient by the Governor , but the hearing was adjourned to allow him to obtain legal advice . The first applicant ’s representative before the ORG has submitted a statement , the contents of which were not disputed by the ORG , to the effect that , inter alia , he advised the first applicant at that stage about the nature and format of the adjudication proceedings and about the questions which the first applicant should raise .", "In his detailed reply to the complaint lodged against him and written after the hearing on DATE , the first applicant stated that he required legal representation to put his points clearly to the authorities .", "The hearing resumed on DATE . The record of the hearing indicated that the first applicant was asked whether he had had time to speak to his solicitor and whether he was ready to proceed . The relevant part of the record was ticked to indicate that he had . The hearing went ahead . The first applicant disputed that he had used threatening words against the probation officer . He submitted that the probation officer had misunderstood the actual words he had used , either because of his accent or language , and that the impugned remarks were about his life in GPE . Evidence was heard from the first applicant and the probation officer , to whom questions were put by the Governor and the first applicant .", "The first applicant was found guilty and awarded CARDINAL additional days’ custody ( pursuant to section CARDINAL of LAW DATE “ the DATE LAW ) together with CARDINAL days’ cellular confinement , CARDINAL days’ exclusion from associated work and CARDINAL days’ forfeiture of privileges . This was the applicant ’s CARDINAL offence against discipline and his seventh offence of threatening to kill or injure a member of the prison staff .", "On DATE and CARDINAL DATE the applicant unsuccessfully petitioned the Secretary of ORG about the conduct of his adjudication proceedings . In a letter dated DATE , it was confirmed that the Secretary of ORG had reviewed the adjudication procedure as a whole and found it to have been satisfactory .", "In DATE the second applicant was convicted on CARDINAL counts of rape and of robbery and was sentenced to CARDINAL concurrent terms of imprisonment , the longest being DATE .", "On DATE he was jogging around a track in the prison exercise yard when he collided with a prison officer . The officer alleged that the second applicant had run into him deliberately and he was charged with the offence of assault , contrary to Rule CARDINAL(CARDINAL ) of FAC .", "The adjudication hearing commenced on DATE when the second applicant requested legal representation ( or , alternatively , representation by his probation officer ) at the hearing . This was refused but the hearing was adjourned to allow him to obtain legal advice , which he did on DATE . The statement submitted by the second applicant ’s representative before the ORG pointed out that he had advised the second applicant about the nature and format of the adjudication proceedings and about the questions which the second applicant should raise . The second applicant was advised to request legal representation again for the adjudication hearing , which he did on DATE .", "The adjudication hearing was reconvened on DATE . The Governor rejected the application for legal representation . He heard evidence from the relevant prison officer and another prison officer , from the second applicant and from CARDINAL prisoners called by the second applicant . The second applicant ’s case was that the collision had been accidental .", "The second applicant was found guilty of assault and awarded CARDINAL additional days’ custody ( pursuant to section CARDINAL of the CARDINAL Act ) . CARDINAL days’ cellular confinement was also awarded and he was fined MONEY ( GBP ) . It was his CARDINAL offence against discipline .", "On DATE and DATE , respectively , the applicants requested leave to apply for judicial review of the Governor ’s refusal of legal representation . Mr Ezeh also applied for an extension of time in which to do so . They argued that the various statutory and regulatory changes since the case of ORG and PERSON v. ORG ( [ DATE ] CARDINAL AC CARDINAL ) had made adjudication of prison disciplinary matters virtually indistinguishable from matters of summary jurisdiction and , therefore , legal representation ought to have been allowed as of right . On DATE a single judge of ORG refused leave to both applicants . He observed that there was no right to legal representation in adjudication hearings and that the Governor ’s exercise of his discretion not to allow such representation was not irrational or perverse given the facts of the cases . In Mr Ezeh ’s case he added that there was therefore no good reason for extending time .", "On DATE the ORG counsel advised that a renewed leave application had no realistic prospect of success , given the views expressed by the single judge of ORG .", "Control over , and responsibility for , prisons and prisoners in GPE and GPE is vested by LAW in the Home Secretary . He is empowered by CARDINAL ) of that Act to make rules “ for the regulation and management of prisons ... and for the classification , treatment , employment , discipline and control of persons required to be detained therein ” . Such rules are contained in statutory instruments laid before ORG and made in accordance with the negative resolution procedure , that is , they come into operation unless ORG otherwise resolves .", "The rules made by the Home Secretary and currently in force are the Prison Rules DATE as amended ( “ the Prison Rules ” ) .", "Section CARDINAL(CARDINAL ) of ORG provides that a prisoner is guilty of an offence against discipline if he uses threatening , abusive or insulting words or behaviour .", "ORG ( section CARDINAL ) provides as follows :", "“ It is important that it is shown how the action was threatening , abusive or insulting , but it may not always be necessary to establish at whom the action was aimed and it is not necessary to name an individual in every charge .", "Section CARDINAL further provides that the impugned matter can be a specific act or word or a general pattern of behaviour ; that “ threatening , abusive or insulting ” words should be given their ordinary meaning and that it is only necessary to find that a reasonable person at the scene would consider the words or behaviour threatening , abusive or insulting ; and that the accused intended to be , or was reckless as to whether he was , threatening , abusive or insulting .", "Section CARDINAL of LAW CARDINAL ( “ the DATE LAW ) is entitled “ Fear or provocation of violence ” and provides :", "“ ( CARDINAL ) A person is guilty of an offence if he –", "( a ) uses towards another person threatening , abusive or insulting words or behaviour ; or", "( b ) ORG distributes or displays to another person any writing , sign or other visible representation which is threatening , abusive or insulting ,", "with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person , or to provoke the immediate use of unlawful violence by that person or another , or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked .", "( CARDINAL ) An offence under this section may be committed in a public or a private place , except that no offence is committed where the words or behaviour are used , or the writing , sign or other visible representation is distributed or displayed , by a person inside a dwelling and the other person is also inside that or another dwelling . ...", "( CARDINAL ) A person guilty of an offence under this section is liable ... to imprisonment for a term not exceeding DATE or a fine ... or both . ”", "Section CARDINAL of the CARDINAL Act is entitled “ Harassment , alarm or distress ” and section CARDINAL ) provides :", "“ A person is guilty of an offence if he –", "( a ) uses threatening , abusive or insulting words or behaviour , or disorderly behaviour ; or", "( b ) displays any writing , sign or other visible representation which is threatening , abusive or insulting ,", "within the hearing or sight of a person likely to be caused harassment , alarm or distress thereby . ”", "Section CARDINAL(CARDINAL ) provides that it is a defence for the accused to prove that there was no person within hearing or sight likely to be caused such harassment , alarm or distress , or that he was inside a dwelling and had no reason to believe that the words of behaviour used , or the writing , sign or other visible representation displayed , would be heard or seen by a person outside that or any other dwelling , or that his conduct was reasonable .", "Dwelling is defined for the purposes of sections CARDINAL and CARDINAL of the CARDINAL Act , as being any structure or part of a structure occupied as a person ’s home or as other living accommodation ( whether the occupation is separate or shared with others ) but does not include any part not so occupied , and for this purpose “ structure ” includes a tent , caravan , vehicle , vessel or other temporary moveable structure .", "A prisoner is guilty of an offence against discipline if he commits an assault ( section CARDINAL(CARDINAL ) of ORG ) . Both section CARDINAL of the Offences Against LAW DATE and section CARDINAL of LAW DATE make provision for the criminal offence of common assault .", "Section CARDINAL(CARDINAL ) of ORG provides that a charge of an offence against discipline shall be laid , save in exceptional circumstances , within TIME of the offence and , in general , inquired into by the Governor DATE after it is laid .", "Prior to DATE disciplinary offences were adjudicated upon by Governors who could award a maximum of CARDINAL days’ “ loss of remission ” ( together with CARDINAL days’ solitary confinement ) . Grave or especially grave offences were adjudicated upon by ORG which could order forfeiture of a maximum of CARDINAL days’ remission for a grave offence ( together with CARDINAL days’ solitary confinement ) or an unlimited forfeiture of remission for an especially grave offence .", "Loss of remission was initially considered in domestic law to amount to nothing more than a loss of a privilege ( see , for example , PERSON v. DATE ] CARDINAL KB CARDINAL ) . By DATE , however , the NORP courts had rejected that idea : whether or not it could be said , under the prevailing statutory framework , that remission was a privilege or a right , prisoners were told their earliest release date on arrival in prison and could expect , subject to forfeiture being ordered , release on that date . Forfeiture of remission had the effect of causing the detention to continue beyond the period corresponding to that legitimate expectation ( NORP v. Hull ORG , ex parte PERSON and Others [ DATE ] CARDINAL All England Law Reports CARDINAL and “ Prison Law ( second edition , DATE ) , PERSON and PERSON ) .", "In DATE the power of ORG to award unlimited remission was removed .", "The Prior Report on ORG ( DATE ) recommended that there should be an effective appeal process where issues of personal liberty were at stake and that there should be a right of appeal to a manifestly independent tribunal where there was any significant forfeiture of remission .", "In DATE the distinction between offences , grave offences and especially grave offences was removed and the maximum loss of remission was reduced to DATE for any CARDINAL offence .", "Lord PERSON ’s report on ORG ( DATE ) recommended that prison Governors ( as opposed to on ORG ) should continue to adjudicate disciplinary offences and that criminal offences should be referred to the criminal courts . The report recommended that the Governor ’s order be limited to a maximum of CARDINAL days’ loss of remission and that there should be more recourse to alternative punishments such as the loss of facilities and privileges . It was suggested that the initial decision should be taken by a Governor with a right of review by an area manager , with an appeal thereafter to a ORG .", "LAW DATE ( “ the DATE LAW ) took away the disciplinary jurisdiction of ORG , allocating it to prison Governors . It also introduced a new framework for determining the period of a sentence which would be served in custody . The concept of remission , which would result in early release of prisoners prior to the expiry of their sentence , was abolished . In its place , a new regime was created which distinguished between those prisoners sentenced to less or more than four years’ imprisonment ( short and long - term prisoners , respectively ) .", "Section CARDINAL(CARDINAL ) of the DATE LAW provides that , as soon as a long - term prisoner has served CARDINAL of his sentence , it shall be the duty of the Secretary of ORG to release him on licence . Section CARDINAL(CARDINAL ) put the same obligation of release on the Secretary of ORG as regards short - term prisoners who had served CARDINAL of their sentences : release of the latter category of prison was unconditional if the original sentence was for a term of DATE and was on licence if the original sentence was for DATE imprisonment .", "In addition , section CARDINAL of the DATE Act provided as follows for the award of “ additional days ” to a prisoner found guilty by the prison Governor of disciplinary offences :", "“ ( CARDINAL ) Prison rules , that is to say , rules made under LAW , may include provision for the award of additional days -", "( a ) to short - term or long - term prisoners ; or", "( b ) conditionally on their subsequently becoming such prisoners , to persons on remand .", "who ( in either case ) are guilty of disciplinary offences .", "( CARDINAL ) Where DATE are awarded to a short - term or long - term prisoner , or to a person on remand who subsequently becomes such a prisoner , and are not remitted in accordance with prison rules -", "( a ) any period which he must serve before becoming entitled to or eligible for release under this Part ; and", "( b ) any period for which a licence granted to him under this Part remains in force ,", "shall be extended by the aggregate of DATE . ”", "NORP The maximum DATE which could be awarded by the Governor was DATE , the same maximum period recommended by Lord PERSON ’s report in DATE .", "However , given the growth in prisoner offending and the view that the system put in place in DATE had not acted as an adequate deterrent or inducement to good behaviour , FAC DATE ( statutory instrument No . CARDINAL/CARDINAL – in force on DATE ) increased the maximum award of DATE to CARDINAL for each offence ; the maximum cellular confinement was increased to DATE and the maximum forfeiture of privileges was increased to DATE ( Rule CARDINAL(CARDINAL ) of FAC ) . However , the award of DATE could never extend beyond the length of the original sentence imposed by the trial court .", "The case of NORP v. Governor of ORG , ex parte PERSON ( No . CARDINAL ) ( [ DATE ] CARDINAL WLR CARDINAL ) concerned a short - term prisoner ’s detention beyond the statutory release date because of an erroneous calculation of the release date . ORG found detention beyond that statutory release date to be unlawful and awarded damages for false imprisonment . Lord Justice PERSON noted that , pursuant to section DATE of the CARDINAL Act , DATE could be added onto the core period foreseen by section CARDINAL(CARDINAL ) so that the date therein envisaged was not absolute , but was DATE that could be affected by decisions made by the prison Governor under section CARDINAL . Lord Justice Judge pointed out that :", "“ The discretionary aspects of earlier arrangements for remission and parole were altered by the [ CARDINAL Act ] . As a “ short - term ” prisoner within Section CARDINAL(CARDINAL ) of the [ CARDINAL Act ] , subject to an award of DATE in custody for disciplinary offences , the appellant was entitled to be released on licence as soon as she had served CARDINAL of the sentence imposed by the court . Therefore authorities such as ORG and Winter [ DATE ] CARDINAL KB CARDINAL , based on the principle that there was no entitlement to remission , cease to be relevant ...", "The order of the court justifies the detention . Nevertheless , the prisoner is entitled to be released immediately the sentence has been completed . The method of calculating the date of release depends on statutory provisions which must be applied correctly , that is , correctly in law . ”", "ORG ( [ DATE ] CARDINAL WLR CARDINAL ) later rejected the appeal and confirmed the finding of false imprisonment and the award of damages .", "In the case of NORP v. the Secretary of ORG for ORG ex parte PERSON , PERSON and GPE ( judgment of ORG of DATE ) , the appellants argued that LAW should apply to prison disciplinary proceedings referring , inter alia , to the changes brought about by LAW . The judgment , delivered by Lord PERSON , provided , in so far as relevant , as follows :", "“ Section CARDINAL(CARDINAL ) of the DATE Act provided a power to make prison rules which included provision for the award of DATE but section ORG ) makes it clear that where DATE are awarded to a prisoner DATE are aggregated with the period which would otherwise have to be served before the prisoner is released on licence . ...", "The new statutory framework properly understood is not fatal to the cases advanced by the appellants . Section CARDINAL merely gives their case its proper perspective . The awards of DATE to be served by each of the appellants did not have the effect of adding to their sentence . It was not a fresh sentence of imprisonment . Their effect was to postpone the appellant ’s release on licence . The awards clearly had a practical effect so far as the appellants were concerned and that practical effect was to postpone their release . But there was no question of their sentence being increased as a matter of law . DATE could not be imposed so that they extended the actual sentence , which the appellants were serving , and the sentence passed by the court was the justification for the appellant ’s detention for the purposes of Article CARDINAL ) ORG . ”", "The judgment went on to apply “ the PERSON criteria ” ( PERSON and Others v. the GPE judgment of DATE , Series A no . CARDINAL ) . It noted that the domestic categorisation of the relevant offences was not criminal but disciplinary . It was held , inter alia , that LAW did not apply to proceedings concerning a penalty of DATE for a charge of administering a controlled drug to himself or failing to prevent the administration of a controlled drug by another person contrary to LAW ) of the Prison Rules DATE . It was found that the offence of which the prisoner was found guilty did not precisely replicate any offence contrary to the criminal law and that “ the power of punishment ” was not disproportionate for a disciplinary offence although it was considered close to the borderline .", "This document entitled “ ORG and ORG on the use of Additional Days ” provided guidance on the implications of LAW DATE for the conduct of adjudications and the imposition of punishments , particularly the punishment of DATE . Insofar as relevant , it provided as follows :", "“ CARDINAL . Disciplinary proceedings in prisons require swift hearings and a speedy process to maintain discipline and order . They are not adversarial and the nature of the decision is an administrative public law decision rather than CARDINAL which resolves a dispute between CARDINAL parties . Domestic LANGUAGE law has distinguished prison disciplinary proceedings from criminal proceedings when deciding the procedural standards necessary for fairness . PERSON case law confirms this view .", "NORP However , the fact that the ORG will not in general apply to disciplinary proceedings does not mean that there is not , in theory , a risk it could apply in certain circumstances . ...", "The imposition of DATE is generally the heaviest of the range of punishments available to adjudicators and should be used accordingly , in targeted fashion . It is not possible to give an exhaustive list of the types of offence where DATE might be appropriate ; much will depend upon the circumstances of the individual case . The following , however , are examples where DATE may be particularly appropriate following a finding of guilt at adjudication .", "( a ) Cases which would have been referred to the police but for the wishes of the victim .", "( b ) Serious assaults and assaults on staff .", "( c ) Escapes , attempted escapes and absconds .", "( d ) ORG offences , particularly involving Class A drugs .", "( e ) Concerted or persistent acts of indiscipline .", "Where DATE are imposed , the number of DATE imposed must be proportionate to the aim of securing good order and discipline in the prison . In making this decision , the Governor will consider the same factors as those set out in paragraph CARDINAL .", "Adjudicators should be particularly careful before imposing a large number of DATE . Overall , it should be extremely rare for punishments of DATE to be made . As a guide , in DATE , PERCENT of punishments of DATE were for DATE .", "For more serious cases , adjudicators must ensure that they have fully considered the alternative of referring the matter to police ( see section CARDINAL of ORG ) . Only if this is not possible in the circumstances or there are very good reasons where a disciplinary punishment is more appropriate ( for example if the victim objects to the involvement of the police ) should adjudicators use the disciplinary procedure instead . ”", "Section CARDINAL(CARDINAL ) of the Prison Act DATE provides :", "“ Rules made under this section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case . ”", "The above provision is implemented through Rule CARDINAL(CARDINAL ) of the Prison Rules :", "“ At an inquiry into a charge against a prisoner , he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case . ”", "The courts have interpreted Rule CARDINAL ) as conferring a power on the Governor to grant , or not , to a prisoner legal representation at an adjudication hearing . In R v. the Home Secretary ex parte GPE and Others ( [ DATE ] CARDINAL QB CARDINAL ) , ORG pointed out that there is no right to legal representation for prison adjudications and that its grant in a particular case should be determined by reference to certain factors . Those factors were stated to include the seriousness of the charge and of the potential penalty ; whether any points of law are likely to arise ; the capacity of the particular prisoner to present his own case ; procedural difficulties ; the need of the prison authorities for reasonable speed in making their adjudications ; and the need for fairness as between prisoners and as between prisoners and prison officers .", "ORG endorsed the factors outlined in the aforementioned GPE judgment in the above - cited case of ORG and PERSON v. ORG . FAC found it difficult to imagine that “ the rules of natural justice would ever require legal representation before the Governor ” . Lord PERSON considered that :", "“ ... it is easy to envisage circumstances in which the rules of natural justice do not call for representation , even though the disciplinary charge relates to a matter which constitutes in law a crime , as may well happen in the case of a simple assault where no question of law arises , and where the prisoner charged is capable of presenting his own case . To hold otherwise would result in wholly unnecessary delays in many cases , to the detriment of all concerned including the prisoner charged , and to a wholly unnecessary waste of time and money , contrary to public interest . Indeed to hold otherwise would not only cause injustice to prisoners : it would also lead to an adventitious distinction being drawn between disciplinary offences which happen also to be crimes and those which happen not to be so , for the punishments liable to be imposed do not depend on any such distinction . ”", "In its letter dated DATE , ORG set out the numbers of adjudications which took place DATE , those in which the charges were considered proven and those where DATE were awarded . The approximate figures are set out below :", "That letter also pointed out that DATE there were CARDINAL requests for legal or other representation , of which CARDINAL were granted .", "The above - cited R v. PERSON , PERSON and PERSON judgment noted that CARDINAL adjudications had taken place in DATE , during which the charges were proven in CARDINAL cases and a total of DATE were awarded ." ]

[ "6" ]

[ "6-3" ]

[ "6-3-c" ]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE , GPE .", "A. Facts prior to CARDINAL DATE", "On DATE the applicant was arrested on suspicion of murder , grievous bodily harm , and insulting and assaulting policemen .", "On DATE the ORG ( Prokurator Rejonowy ) brought criminal charges against him .", "On DATE prosecution authorities lodged with ORG ( Sąd Wojewódzki ) a bill of indictment against him .", "NORP From DATE to DATE no hearing was held .", "B. Facts after DATE", "A hearing listed for DATE was adjourned until DATE . A further hearing , listed for DATE , was adjourned because the judge rapporteur was ill . The next hearing , scheduled for DATE , was cancelled because the judge rapporteur was hospitalised .", "On DATE the case was assigned to another panel of judges as the presiding judge rapporteur resigned from his function .", "On DATE the hearing was re - opened .", "The subsequent hearings were held on DATE , CARDINAL May , CARDINAL DATE and CARDINAL DATE and on DATE .", "On DATE the ORG pronounced its judgment . It convicted the applicant as indicted , except for the count of murder , of which he was acquitted . The court sentenced him to DATE imprisonment . On DATE the prosecutor lodged an appeal against that judgment , contesting its part relating to the acquittal .", "On DATE the ORG ( Sąd Apelacyjny ) quashed the contested part of the first - instance court 's judgment and remitted the case for re - examination .", "The court held hearings on DATE and DATE . A hearing scheduled for DATE was adjourned until DATE . A further hearing , listed for DATE , was cancelled because the judge rapporteur was ill . The subsequent hearing was held on DATE .", "On DATE the ORG convicted the applicant of murder with an oblique intent ( w zamiarze ewentualnym ) and sentenced him to DATE imprisonment . The applicant lodged an appeal against that judgment .", "On DATE ORG modified the judgment in that it convicted the applicant of grievous bodily harm with deadly effect and sentenced him to DATE imprisonment .", "In the letter of DATE the applicant 's legal aid lawyer informed him that he refused to lodge a cassation appeal against that judgment , arguing that there was no indication of any breach of substantive or procedural law . He explained that lodging that appeal would only delay the proceedings concerning a cumulative penalty ( kara łączna ) and , afterwards , proceedings concerning the applicant 's conditional release .", "On DATE the ORG delivered a judgment in which it sentenced the applicant to DATE imprisonment as the cumulative penalty for the convictions included in the judgments of CARDINAL DATE , CARDINAL DATE and CARDINAL DATE ( delivered in the course of other criminal proceedings ) ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant is a NORP citizen , born in DATE and living in GPE .", "A.", "On DATE ORG dismissed the applicant ’s appeal against a decision of ORG by which the latter had refused to grant him retirement pension for persons working in difficult conditions . On DATE the applicant lodged an appeal against this decision with ORG , which transmitted it to ORG .", "On DATE ORG , following an order of ORG , requested the applicant to supplement his appeal by indicating what errors of fact and law had allegedly been committed by the court during the examination of the case . This order was served on the applicant on DATE and he was informed that he should comply with it within DATE from its service .", "On DATE the applicant submitted pleadings to the court explaining the grounds of his appeal . The date of submitting the pleadings to the court is clearly certified by a stamp of the court ’s registry on a copy of the document .", "By a decision of DATE ORG rejected the applicant ’s appeal , finding that he had failed to comply with its order of DATE .", "In DATE the applicant requested assistance from his local MP , complaining that ORG had rejected his appeal , having failed to take into consideration his pleadings of DATE . In reply to the ORG ’s enquiry as to circumstances in which the applicant ’s appeal had been rejected , ORG informed him by a letter of DATE that the judgment of CARDINAL DATE had became final since the applicant had failed to complement his appeal within the time - limit fixed by the court for that purpose .", "In reply , by a letter to the President of ORG DATE , the MP referred to information he had received on DATE in a telephone conversation with ORG registry , according to which the applicant had failed to pick up the court ’s decision of DATE at the post office . The MP reiterated his request that the applicant ’s complaint be thoroughly investigated .", "By a letter of DATE the President of ORG of ORG informed the MP that on DATE the applicant had complemented his appeal , but , since his appeal so complemented still did not comply with the requirements that the law attached to an appeal against a first - instance judicial decision , the court rejected it on DATE . This decision was later duly served on the applicant , in a manner compatible with the requirements of LAW .", "On DATE the applicant lodged an appeal against the decision of DATE . He submitted that the court , when rejecting his appeal on DATE , must have been unaware that he had complied with its order to complement it by detailed arguments . Thus , his appeal had been rejected erroneously .", "He further submitted that this decision had been served on him only in DATE . He also stated that he did not pick up the decision of DATE at the post office , as in DATE he had been on DATE for DATE . It had only been in DATE that he had enquired about the further course of the proceedings . He had received a copy of the decision from which it transpired that it had been taken on the erroneous ground of his alleged failure to comply with the court ’s order to supplement his appeal .", "On DATE ORG rejected the applicant ’s appeal . The court found that the decision of DATE had been sent to the applicant by registered letter . It could not be served on him because of his absence . On DATE , the decision was deposited at the post office . As the applicant did not pick it up at the post office within the CARDINAL - days’ time - limit provided for by law , it was not delivered to him . On DATE the decision was returned to the court and deposited in the case - file . Pursuant to LAW , it should therefore be regarded as having been duly served . Thus , the applicant ’s appeal had to be rejected , having been lodged out of time .", "B. Relevant domestic law", "LAW , insofar as relevant , provides that if a party to proceedings fails to comply with the prescribed time - limit without its fault , the court shall , on that party ’s request , grant leave to appeal out of time .", "Article CARDINAL of the Code of Civil Procedure provides that the parties to proceedings are under an obligation to inform the court about any changes in their addresses . Under § CARDINAL of this provision , if they fail to do so , a decision to be served on the party shall be filed in the case - file and shall be regarded as having been duly served , unless the court knows the new address of that party ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "CARDINAL", "On DATE Başbağlar village in NORP was raided by terrorists . They burned numerous houses and killed CARDINAL villagers . The applicant , who was living in the neighbouring village , was suspected of having participated in the so - called “ FAC ” .", "The applicant and CARDINAL other individuals were charged under LAW of LAW .", "On DATE the applicant was arrested and remanded in custody . On DATE ORG ordered his release pending trial .", "On DATE the applicant was acquitted .", "On DATE the applicant lodged a complaint under PERSON no . CARDINAL with ORG against the ORG , requesting MONEY ( GPE ) in respect of pecuniary damage and TRL CARDINAL for non - pecuniary damage by way of compensation for unjustified detention DATE and DATE .", "The Bakırköy Assize Court appointed CARDINAL of its members as judge rapporteur ( naip hakim ) to investigate the case and draft a report . The applicant was heard by the judge rapporteur on DATE and DATE . He stated that he did not have a regular job at the time but was unofficially working for a dairy merchant DATE , collecting cheese from local farmers , and in return was paid GPE CARDINAL per month .", "On DATE the ORG found that the applicant ’s unjustified detention on remand for DATE qualified for compensation . In its judgment , the court took note of all the complaints set out by the applicant ’s lawyer , as well as the content of the judge rapporteur ’s report and the written submissions of the public prosecutor . The court further referred to the minimum wage at the time and the expert report which had estimated the applicant ’s income loss to be TRL CARDINAL . The court concluded in line with the expert report and awarded the applicant GPE CARDINAL,CARDINAL,CARDINAL for pecuniary damage . Considering the applicant ’s economic and social position , the seriousness of the charges brought against him and the time that he had spent in detention as well as the intensity of his emotional suffering , the court additionally awarded the applicant ORG for non - pecuniary damage .", "The applicant ’s lawyer appealed and claimed that the amount of compensation for non - pecuniary damage was insufficient reparation for the wrongful detention of the applicant and the subsequent suffering that he had endured . He further maintained that , considering the length of the proceedings , the compensation for pecuniary damage awarded by the court was not sufficient either . He also complained about the lack of interest on the compensation .", "On DATE ORG quashed the decision on the ground that the defendant had not been notified of the applicant ’s claim and had not been invited to submit replies .", "The case was resumed before ORG . On DATE the judge rapporteur heard the applicant who repeated his previous statements and was paid GPE CARDINAL per month . A new expert report estimated the applicant ’s income loss , on the basis of the net minimum wages in force at the time , to be FAC .", "On DATE the ORG awarded the applicant ORG for pecuniary damage and GPE CARDINAL for non - pecuniary damage . The court refused the applicant ’s claim for interest which was not covered by Law no . CARDINAL .", "On DATE the applicant appealed .", "The written opinion of ORG was submitted to ORG and notified to the applicant .", "On DATE ORG upheld the decision of ORG , with a minor amendment regarding the costs and expenses .", "On DATE the applicant was paid TRL CARDINAL plus TRL CARDINAL in statutory interest , applied with effect from DATE ." ]

[ "6" ]

[]

[]

[ "6" ]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "Following a petition from her former husband , on DATE the ORG dissolved their marriage . It gave the applicant custody of the couple ’s only child , and also gave her the use of the former matrimonial home . It found that this home was a flat acquired jointly by the former spouses during their marriage , situated in the “ LOC neighbourhood of GPE , and intended by them to fulfil the family ’s housing needs ( the applicant had moved into that flat in DATE although it had not been fully finished ) . The fact that the applicant ’s former husband had never lived there was of no relevance , as this had been the result of his disregarding his duty to cohabit with his spouse . As the applicant had been given custody of their only child , the court held that she was entitled to use the flat .", "The applicant ’s former husband appealed against the court order relating to the former matrimonial home . He averred that this home was in fact another flat DATE situated in the “ GPE ” neighbourhood of GPE and coowned by him and his mother and sister – where the spouses had lived before their de facto separation in DATE .", "On DATE ORG upheld the order . It agreed with GPE that the former matrimonial home was the flat in “ PERSON , as it had been acquired , by means of a preliminary contract with the builder , during the marriage , for the family ’s housing needs , as at that time the spouses had not owned another home , and as the applicant and her child had been living there at the time when the marriage was dissolved . The flat in “ FAC was not the former matrimonial home , because it was co - owned by the applicant ’s former husband and third parties and both spouses had left it in DATE .", "The applicant ’s former husband appealed on points of law .", "In a judgment of DATE ORG quashed the lower court ’s judgment and remitted the case . It held that the former matrimonial home was the flat in “ GPE ” , not the CARDINAL newly built in “ PERSON . According to its settled caselaw , the former matrimonial home was the one which had been used before the dissolution of the marriage and , in case of a de facto separation preceding the dissolution , the one used before the separation .", "NORP On remittal , ORG , in a judgment of DATE , again upheld the order of GPE . It relied on interpretative decision no . CARDINAL of FAC of ORG ( see paragraph CARDINAL below ) , according to whose point CARDINAL ( b ) , in the event of a de facto separation , the former matrimonial home is the CARDINAL acquired during the separation with funds accumulated during the marriage . On this basis , it found that the former matrimonial home was the flat in “ PERSON . Given the unambiguous rule set out in the interpretative decision , the fact that the spouses had not lived in that flat together was immaterial .", "NORP The applicant ’s former husband appealed on points of law .", "ORG held a hearing on DATE . The applicant was represented by counsel , who asked the court to dismiss the appeal and said that he had developed his arguments in a memorial which he filed during the hearing .", "In the memorial , which ran to CARDINAL pages , the applicant ’s counsel argued that ORG had not erred by taking into account interpretative decision no . CARDINAL instead of the guidelines of ORG given in the judgment of DATE , since where there was conflict between the instructions given in a specific case and the solution envisaged by a binding interpretative decision the latter prevailed . He further presented a number of arguments why the flat in “ PERSON was the former matrimonial home and why its use should be given to the applicant . He asserted that this flat had been acquired by the spouses with a view to fulfilling the family ’s housing needs , that the applicant had contributed financially to its acquisition and that the only reason why she did not have title to it was her former husband ’s protracting the conclusion of the final contract for its acquisition from the builder . The applicant had brought a separate suit , seeking a court order declaring the preliminary contract with the builder final . However , that suit was still pending . The spouses had lived in the flat since DATE , but even assuming that the applicant ’s former husband had not done so throughout the entire period , this had been due to his dereliction of the duty to cohabit with his wife . The applicant and her child could not live in the flat in “ FAC , because this was not the former matrimonial home , and this would mean cohabiting with their former inlaws , with whom they did not have good relations .", "On DATE ORG quashed GPE judgment . In the beginning of its twoandahalf page opinion it observed that the applicant had not made submissions in the proceedings before it . It found no indication that the spouses had obtained title and thus acquired the flat in “ Strelbishte ” during the marriage ; there was merely a preliminary contract in respect of it . The date of delivery of the flat was irrelevant . Therefore , point CARDINAL ( b ) of interpretative decision no . CARDINAL ( see paragraph CARDINAL below ) was not applicable . However , even if the spouses had acquired the flat during the marriage , it would not have become the matrimonial home , because it had not been acquired in order to fulfil the family ’s housing needs . Where a home had not been acquired for such purpose , point CARDINAL ( b ) was inapposite on account of the repeal in DATE of a DATE statute restricting the number of properties which an individual was allowed to own . Thereafter , the contribution of funds by both spouses could be of importance solely for the existence or otherwise of a joint title to a home acquired during the marriage , not for its designation as the matrimonial home . The former matrimonial home was the flat in “ GPE ” , as the spouses had lived there before their de facto separation in DATE . Since the couple ’s child was already an adult and since the applicant shared some of the responsibility for the breakdown of the marriage , the use of the former matrimonial home was to be given to her former husband .", "On DATE the applicant ’s counsel asked ORG to rectify the statement in its judgment that he had not made any submissions in the cassation proceedings . He considered that statement to be an obvious mistake , because , as noted in TIME of the hearing , he had filed a memorial , which featured after page CARDINAL in the case file . On DATE the court refused , saying that only errors in the operative provisions of a judgment could be rectified .", "Article CARDINAL § CARDINAL of the DATE LAW provides that when a court allows a divorce petition , it must give the use of the former matrimonial home to CARDINAL of the spouses if it can not be used separately by both of them . In reaching its decision , the court must have regard to the interests of the children , the fault for the breakdown of the marriage , the health of the spouses and all other relevant circumstances .", "Interpretative decision no . CARDINAL of FAC of ORG ( постановление DATE от CARDINAL ноември DATE г. , GPE на ВС ) was adopted on DATE under the CARDINAL Family Code ( which was superseded by the DATE LAW ) . It deals with all issues relating to the use of the former matrimonial home . Point CARDINAL ( b ) of its operative provisions defines the former matrimonial home as the CARDINAL acquired while the spouses were separated de facto , but with funds accumulated during the marriage ." ]

[]

[]

[]

[ "6" ]

[ "6-1" ]

[]

[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE - GPE . He is represented before ORG by ORG , a lawyer practising in NORP .", "ORG ( “ the Government ” ) are represented by PERSON PERSON GPE , ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant and other claimants served in the law - enforcement agencies of ORG and were entitled to additional remuneration for service in the conditions of emergency and armed conflict . They brought proceedings against the regional office of ORG seeking recovery of the additional remuneration which included double salary , special rank salary , non - recurrent monetary allowance , and allowances for length of service , food and sanatorium treatment .", "By a judgment of DATE ORG ( “ LOC ” ) granted the applicant ’s claim and awarded him MONEY ( RUB ) against ORG - GPE .", "That judgment became final on DATE .", "On DATE by ORG of GPE - GPE ( “ the LOC ” ) delivered a judgment on seemingly identical claims for additional remuneration for service in the conditions of emergency and armed conflict and including a non - recurrent monetary allowance , an allowance for sanatorium treatment , double salary , special rank salary , an allowance for length of service and an allowance for hardship of service . As transpires from the text of the judgment , the applicant and CARDINAL other claimants were represented by a certain Mr V.A. Em who attended the hearing . Mr Em requested the court to order that the debts be paid from the federal funds specifically allocated for compensation of damage inflicted by unlawful acts or omissions of the executive bodies and their officials , instead of the funds allocated to ORG .", "Having taken into account the inflation losses , the court allowed the claims . In particular , it awarded the applicant RUB CARDINAL payable by ORG .", "On DATE ORG examined the application of the claimants in the above proceedings for adjustment of the awards due to inflation losses and recovery of those amounts from the regional ORG . In those proceedings the applicant was represented by a certain Mr PERSON . The materials of the case contain a power of attorney signed by the applicant on DATE in the name of Mr ORG entitling him , inter alia , to bring claims and to receive money on his behalf .", "The court stated , in particular , the following :", "“ By a judgment of DATE in the case no . CARDINAL - CARDINAL the GPE court granted the claims of the servicemen of ORG - GPE and ORG represented by ORG concerning compensation of damages caused by the failure to pay them allowance for service in the conditions of emergency and armed conflict .", "That judgment has been enforced .", "...", "As evidence of the time ( day ) of the transfer of the amounts due in accordance with the writs of enforcement , the applicants submitted certified excerpts from their bank accounts which demonstrate the following :", "...", "The bank account of PERSON ... was credited by way of bank orders dated CARDINAL and DATE with the amounts due to ... [the applicant ] . ”", "The court granted the application for adjustment of the original amount and awarded the applicant RUB CARDINAL which on DATE was credited to the account of Mr ORG per procurationem .", "NORP By letter of DATE the president of ORG addressed the head of the regional office of ORG with the following request :", "“ [ Your department ] is in possession of the enforcement documents of the employees of the regional law - enforcement agencies issued pursuant to the judgments of ORG , concerning payment of compensation for participation in the clearing - up of the aftermath of the Ossetian - Ingush conflict , which were subsequently quashed on account of newly discovered circumstances .", "New court judgments have been delivered and enforced in respect of the above individuals . Therefore , you are requested to return to us the enforcement documents according to the enclosed list , without enforcement . ”", "On DATE the enforcement documents , including those concerning the applicant , were returned to ORG .", "A letter of DATE addressed by the president of ORG - GPE to ORG at ORG stated the following :", "“ ... The documents concerning enforcement ( non - enforcement ) of [ the judgment of DATE ] were destroyed together with the relevant case - file following expiration of the time - limit for their preservation ...", "As the operative part of the judgment of DATE did not authorise recovery of the award from ORG Ossetia - GPE at the expense of ORG and following impossibility of enforcement of the judgment concerned , PERSON and others sued the ORG represented by ORG and [ its regional department ] , seeking recovery of the same payments ...", "... [ B]y a judgment of ORG of GPE - GPE of DATE [ the above claims ] were granted . Having taken into account the amended claims and inflation losses , that judgment recovered in favour of MONEY .", "That judgment was enforced . The documents proving the enforcement were destroyed together with the case - file following expiration of the time - limit for their preservation ...", "It transpires from the correspondence of the president of ORG - GPE with the head of the [ regional office of ORG ] that the judgment of DATE was quashed on account of newly discovered circumstances following adoption of the judgment of DATE by ORG of GPE - GPE ... ”", "The Government has not been able to provide any direct evidence or a date of the quashing of the judgment of DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON and Mr. PERSON , lawyers practising in GPE . The respondent Government were represented by ORG , the representative of GPE at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant and CARDINAL other members of his family lived in a house with a total area of QUANTITY m. and a living space of QUANTITY m. and an adjacent plot of land in the centre of the town of GPE .", "In accordance with a zoning plan governing land use and land development in the town of GPE , a hotel complex was to be built in the town centre which required the expropriation of the necessary land and the demolition of a number of old houses which stood on the site , including the applicant 's .", "By DATE of CARDINAL DATE , the local authority declared the houses unusable for permanent residence and ordered the district authority to demolish them and re - accommodate the occupants .", "The district authority offered the applicant 's family CARDINAL flats in CARDINAL block of flats with an overall living space of QUANTITY m.", "By Resolution CARDINAL of DATE , the local authority issued a permit for the construction of the hotel complex .", "On DATE the local authority ordered a commission to evaluate the plants on the applicant 's land . On DATE the commission valued them at MONEY ( RUR ) . On DATE the local authority confirmed the commission 's assessment and ordered that the above amount be paid to the applicant .", "By Resolution CARDINAL of DATE , the local authority ordered the seizure of the land occupied by the applicant and its use for the construction of a hotel .", "As the applicant had refused to move to the flats offered to him , the district authority documented his refusal on DATE . In the relevant act , the applicant stated that he preferred to live in his own house rather than in a block of flats .", "On DATE the applicant refused to allow the contractors to enter his land .", "On DATE compensation of ORG CARDINAL,CARDINAL,CARDINAL was paid to the applicant .", "On DATE the district authority issued documents entitling the applicant 's family to a protected tenancy in CARDINAL publicly - owned flats in the same block , with an overall living space of QUANTITY m. in exchange for the demolition of their house .", "From DATE to DATE the eviction of the applicant 's family by the bailiffs took place on the basis of a writ of execution issued by ORG DATE in pursuance of its judgment of DATE ( see below ) . The applicant and his family were settled in their CARDINAL new flats .", "Pursuant to the local authority 's decision , on DATE a commission valued the applicant 's house at RUR CARDINAL . This money was paid to the applicant on DATE .", "Soon afterwards the house was demolished .", "The local authorities applied to a court seeking an order to the applicant not to put obstacles to the way of the construction works . The applicant lodged a counter - claim challenging Resolution CARDINAL of DATE .", "On DATE the ORG of Ufa examined the case . The court found that the applicant was not the proprietor of the land but had only a right of use . The court further noted that the applicant chose not to dispute the valuation of his garden plants though he had been advised of that right by the court . The court granted the action of the district authority and rejected the applicant 's claim .", "The judgment was upheld by ORG on DATE .", "The applicant brought proceedings against the local authority challenging its refusal in DATE to issue a certificate of ownership of the land which he occupied . On DATE the ORG of Ufa rejected the application as the applicant had missed the relevant limitation period . ORG upheld the judgment on DATE .", "On DATE ORG brought proceedings before ORG requesting the applicant 's eviction from his house on the basis of LAW dated CARDINAL DATE of the NORP town authority . The applicant submitted his written observations and requested the court to decide the case in his absence .", "On DATE the court examined the case . It found that the district authority had given the applicant 's family , in accordance with the relevant provisions of the law , CARDINAL flats in the same block with an overall living space of QUANTITY m. , exceeding the total area of QUANTITY m. in the applicant 's house . It noted that the applicant had refused to move to those flats because he preferred to live in his house . The district court ordered the eviction and transfer of the applicant 's family to the new flats provided by the district authority . The applicant appealed .", "On DATE ORG upheld the judgment .", "Upon the applicant 's requests for a supervisory review ( надзор ) of the proceedings , on DATE the Deputy President of ORG of GPE lodged a special appeal ( протест ) against the above decisions with ORG . He requested the quashing of the decisions dated DATE and CARDINAL DATE because , inter alia , of the lack of adversarial proceedings , as the district authority had advanced at the hearing before the first instance court new arguments in support of their request for the applicant 's eviction on which the applicant could not comment .", "On DATE ORG allowed the appeal and quashed the decisions on this basis and the fact that the courts had failed to apply the law regulating compensation in respect of property seized for public needs . The court remitted the case to the first instance court for a new examination .", "On an unspecified date after DATE , the applicant lodged a counterclaim for repossession of the house and non - pecuniary damages . On DATE the ORG of Ufa refused to deal with it . On the applicant 's appeal , on DATE ORG quashed the decision and , on an unspecified date before DATE , ORG initiated proceedings on the applicant 's action and joined it to the pending proceedings concerning the applicant 's eviction .", "On DATE the ORG of Ufa examined the case . The applicant , who had requested the court to decide the case in his absence , did not participate in the hearing . The court noted that , by the final decision of ORG dated CARDINAL DATE , the applicant 's land had been taken for public needs and that the lawfulness of that deprivation could not be disputed in the present proceedings . The court further noted that , in order to build a hotel complex , which had been completed in DATE , the demolition of the applicant 's house had been necessary . The court also noted that the alternative accommodation given to the applicant had a total living space exceeding that of the demolished house and was worth at least twice as much , according to an expert opinion obtained by the court on DATE . Account being taken of the money paid to the applicant for the house , the court found that the ORG had duly compensated the applicant . The court granted the action of the district authority and rejected the applicant 's claim . It held that the applicant 's right to the house had ceased in DATE and that the applicant could be evicted and transferred to the alternative accommodation provided by the district authority . As the applicant had already been evicted from the house , no execution of that decision was required .", "The applicant appealed . On DATE ORG quashed the judgment of DATE on the grounds of the unlawful composition of the court , and the court 's failure to examine properly the evidence or to apply the relevant law . The case was remitted to the first instance court for a new examination .", "On DATE ORG examined the case . The applicant , who had been duly notified of the hearing , did not appear , having requested the court to decide the case in his absence . The applicant amended his claims , now requesting higher compensation for the house and the garden plants , as well as compensation for an alleged loss of profit from the plants . The court observed that , in order to implement the public purpose for which the land had been taken , namely the construction of a hotel complex , the demolition of the applicant 's house had been necessary . The court noted that the hotel complex had been built in DATE and that it was now used for the reception of representatives of the federal government and governments of foreign GPE , being managed by a ORG institution . The court found that the applicant never owned the land de jure . He used it in so far as he owned the house on it . Moreover a part of the land had been taken by him without permission . The court held that , in the absence of the applicant 's consent to acquire ownership of the CARDINAL flats offered to him , the district authority had rightly given him a protected tenancy in the flats . Taking into account the applicant 's entitlement to the acquisition of the ownership of the flats free of charge by way of privatisation , the court noted that they were at least twice as expensive as the cost of the applicant 's house . The court found that , together with the RUR CARDINAL paid to the applicant for the house , the ORG had duly compensated the applicant . As regards the garden plants , the court estimated their value in accordance with statutory requirements , and found that the compensation paid to the applicant exceeded that amount . The court found for the district authority . The applicant 's claims for repossession of the house and non - pecuniary damages were made into separate proceedings . The remainder of his claims was rejected . The court declared that the applicant 's property rights to the house had ceased in DATE , and ordered the eviction and transfer of the applicant and his family to the CARDINAL flats given by the district authority . As the applicant had already been evicted from the house , no execution of that decision was required .", "On appeal , on DATE ORG , having heard the applicant and his counsel and the district authority , quashed the part of judgment concerning the applicant 's claim for loss of profits in relation to the plants , and upheld the remainder . The court referred to the fact that the applicant 's house had been declared unsuitable for permanent residence .", "On DATE ORG examined the applicant 's claims against the district authority for repossession of the house and damages , including the alleged loss of profits in relation to the plants . It also examined CARDINAL other actions brought by the applicant against various authorities of GPE in connection with the demolition of his house . The court rejected the claim concerning loss of profits as being unsubstantiated , taking into account an expert opinion on the point . The remainder of the claims was rejected as ill - founded .", "On DATE ORG upheld the judgment on appeal .", "Being dissatisfied with the way in which the judicial authorities in the aforementioned proceedings and various local and federal authorities and other persons had dealt with his case , the applicant attempted to bring proceedings against them all . However , his actions were either disallowed as having no basis in domestic law or not examined because of the applicant 's failure to meet relevant procedural requirements ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant is an GPE national , living in GPE ( GPE ) . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the Mayor of ORG dismissed the applicant ’s request of CARDINAL DATE for a building permit in respect of a shed to be constructed on CARDINAL plots of land marked as a free zone in the development plan . ORG ) rejected the applicant ’s appeal on DATE .", "On DATE ORG Bezirkshauptmannschaft ) dismissed the applicant ’s further appeal . It found that no building was permissible in a free zone .", "On DATE ORG Verfassungsgerichtshof ) declined to entertain the applicant ’s complaint against the refusal of the building permit and referred the case to ORG ( Verwaltungsgerichtshof ) .", "On DATE ORG requested the applicant to amend his submissions , which the applicant did on DATE .", "On DATE ORG rejected the applicant ’s complaint . It found that the complaint related in essence to the alleged unlawfulness of the development plan underlying the refusal of the building permit , an issue outside ORG competence ." ]

[]

[]

[]

[]

[]

[]

[ "Mr PERSON , an officer in the revenue police , lives in GPE ( GPE ) .", "On DATE he instituted proceedings in the Consiglio di Stato for judicial review of a decision of ORG assigning him to a rank lower than the one to which he considered himself to be entitled . He also sought a stay of execution of that decision .", "In a decision of CARDINAL DATE the PERSON allowed the application for a stay of execution . After a hearing on DATE the PERSON ordered ORG to produce various documents .", "In a judgment of DATE , the text of which was deposited with the registry on DATE , the PERSON gave judgment against the applicant ." ]

[]

[]

[]

[]

[]

[]

[ "“ FAC ” ( TRM ) was created by Presidential decree as a ORG - owned company on DATE , out of the previously existing ORG broadcasting body . ORG 's statutes were changed in DATE and again in DATE , when it was transformed into a public company ( see paragraphs CARDINAL , DATE and DATE below ) and was registered as such on DATE .", "NORP In DATE a privately - owned NORP television station ( ORG ) began broadcasting nationally . Until that date , in addition to ORG , CARDINAL NORP public channel ( GPE CARDINAL ) and CARDINAL NORP public channel ( ORG ) could be viewed throughout GPE . GPE CARDINAL carried no local news and ORG introduced a daily CARDINAL NORP news bulletin in DATE . While , in DATE , PERCENT of GPE 's population was rural , cable television was available only in the big cities and the use of satellite television was largely undeveloped . According to the ORG , a survey commissioned by ORG ( see paragraph CARDINAL below ) in DATE found that ORG was the most - watched channel in GPE and that ORG 's evening news bulletin was the favourite television programme of PERCENT of the population .", "PERSON ( the first applicant ) had worked in television since DATE and was the Head of ORG DATE and editor and presenter of the evening news bulletin in NORP . She left ORG in DATE .", "PERSON ( the second applicant ) edited and presented the TIME entertainment show , as well as ORG 's evening news bulletin and a programme dedicated to NORP culture . She joined ORG 's predecessor in DATE and was made redundant in DATE .", "PERSON ( the third applicant ) was the editor - in - chief and presenter of a DATE TIME talk - show on cultural , social and political issues . He joined ORG 's predecessor in DATE and was dismissed by ORG in DATE but employed by ORG in DATE .", "PERSON ( the fourth applicant ) was a senior editor in ORG and presented the evening news in LANGUAGE . He joined ORG in DATE and was made redundant in DATE .", "PERSON ( the fifth applicant ) was a senior director of ORG and worked on the show presented by PERSON GPE . She joined ORG in DATE and was dismissed by ORG in DATE but employed by ORG in DATE .", "PERSON ( the sixth applicant ) was the producer of several programmes and talk - shows within the Television Cultural Section . He joined ORG 's predecessor in DATE and was dismissed by ORG in DATE but employed by ORG in DATE .", "Viorica Cucereanu - Bogatu ( the seventh applicant ) worked as a special correspondent in ORG . She joined ORG 's predecessor in DATE and was made redundant in DATE .", "PERSON ( the eighth applicant ) was a senior editor and presenter in the Television Cultural Section , as well as producer and presenter of an entertainment show . She joined ORG 's predecessor in DATE and was made redundant in DATE .", "Ludmila Vasilache ( the ninth applicant ) was an editor and presenter of several programmes within the Television Cultural Section . She joined ORG 's predecessor in DATE . She was dismissed by ORG in DATE but employed by ORG in DATE .", "According to the applicants , ORG was subjected to political control throughout its existence . However , after DATE , when ORG won a large majority in the parliamentary elections , a number of senior managers at ORG were removed and their positions filled with persons loyal to the Government . The restrictions on journalistic freedom of expression allegedly then became acute .", "The applicants alleged that the information disseminated on the news bulletins was strictly controlled by ORG 's senior management . Whereas it had formerly been part of the first applicant 's job to select news items and write the script for the part of the bulletin which she presented , after DATE this task was taken over by the Head of ORG , who would decide which items should be included on the basis of a schedule prepared by the ORG news agency “ ORG ” . The selection was submitted for approval to the President of ORG and ORG . Material covering parliamentary , governmental or presidential sessions as well as local visits by official bodies would be given priority .", "Only a trusted group of journalists and technicians were used for interviews and reports of a political nature . Whereas before DATE the journalists had had a large measure of editorial control , they were now given instructions as to the tone and direction that the piece should take ; occasionally the entire script was dictated to them . Interviews and other reports which were not broadcast live were selected and edited to present the ruling party in a favourable light .", "NORP In accordance with TRM policy , reports on the activities of pro - government bodies and officials would last TIME . Reports about other events would last between a maximum of QUANTITY . As a result CARDINAL of the time allocated to news bulletins would be dedicated to reports on Government issues . Any conflict within the country or events organised by the opposition , non - governmental organisations or people with views other than those held by the ruling party would not be reported . No opposition party had access to air - time and a “ black - list ” was composed of prominent persons from political , cultural and scientific life who did not support ORG and who were not , therefore , allowed access to TRM programmes . On the rare occasions when an opposition politician was given air - time , the interviews were truncated or the speech was overdubbed with journalistic comment or text provided by the Government news agency , ORG .", "Programmes other than the news bulletins were also subject to censorship . Controversial topics were forbidden ; the identity of guests and studio audiences were controlled ; live and interactive programmes were avoided and incoming telephone calls were screened . The DATE broadcasting schedule had to be approved by ORG 's President . Programmes which he did not approve were omitted from the broadcasting schedule without prior notice to the viewers or the participants in the programme and without any explanation .", "The applicants alleged that the use of words and phrases such as “ NORP ” , “ NORP language ” , “ PERSON ” , “ History of NORP ” , “ totalitarian regime ” were prohibited , as was any reference to historical periods such as the period between the CARDINAL World Wars , the organised famine in the GPE , the NORP regime , the GULAG deportations and the period of national revival of DATE .", "The applicants identified a number of specific incidents during this period . These included a disciplinary measure brought against a journalist for using the expressions “ totalitarian NORP regime ” , “ NORP Government ” and “ FAC ” during a live report on Independence Day , CARDINAL DATE ; the cutting of an interview with PERSON , the first President of GPE , from a feature report on TIME news about Independence Day ; the reprimand of a journalist who recorded an interview with the President of ORG during which the interviewee said that “ in the period of the totalitarian regime churches were destroyed ” ; the cutting of an interview with the former Secretary General of ORG , ORG , on DATE , because he said that “ presently no light can be seen at the end of the tunnel ” when referring to the economic situation in GPE ; the deletion of a programme , due to be shown on DATE , about the late singers PERSON and PERSON ; the refusal to broadcast , on DATE , an interview with the parliamentarian PERSON regarding the replacement on the school curriculum of the subject “ History of the NORP ” by the “ History of GPE ” ; the refusal to allow any coverage of the opposition position during a report on DATE of a debate in ORG about the socio - political situation ; the censorship of a report of a press conference given by the deputy of the parliamentary faction “ FAC ” , criticising Government proposals for territorial - administrative reform ; the banning of reports about the ORG of GPE and Conferences organised by Historians because opinions about the “ History of NORP ” and the NORP language were expressed ; the banning , in DATE , of a feature report about the inauguration of ORG which was dedicated to the victims of the NORP repressions ; the banning of a feature report in DATE about Professor PERSON , because she referred to the NORP deportation of ethnic NORP ; the deletion , from a feature report in DATE about the late PERSON , of the title of his book “ The national conscience of the NORP ” ; a ban during DATE and DATE of any interview with clergymen of ORG .", "On DATE the “ Bună Seara ” talk show , presented by the applicant PERSON , was to be dedicated to a discussion of the plan for the federalisation of GPE proposed by GPE . The guests on the show were PERSON , the representative of ORG in GPE , PERSON , the spokesman of ORG , and the CARDINAL leaders of the Parliamentary factions : PERSON ORG , Dumitru Braghiş and PERSON . PERSON was told by the President of TIME before the broadcast was due to start that he need not attend as the show had been cancelled . The production team and presenter were not informed . The representative of the FAC , PERSON and PERSON came to the studio . The public took their places and the show began . However , unknown to the participants , and without any explanation , it was not broadcast and a film was shown in its place . The journalists who had worked on it were subsequently interrogated by the police .", "The Government did not take issue with the specific incidents identified above by the applicants . However , they asserted that opposition politicians had access to national television and that the DATE protests were reported , as shown by the texts of news programmes for the period DATE and for occasional dates in DATE , DATE and DATE . In addition , the published TV Guides showed the following broadcasts on TRM : on DATE , a programme entitled “ ORG Parties ” ; on DATE , a programme entitled “ Public Life ” , with the participation of the President of GPE ; and on DATE , “ ORG the Media ” , with the participation of PERSON , the leader of the NORP parliamentary faction , PERSON , the leader of the Parliamentary faction “ GPE Democrată ” , Mr PERSON , the leader of an extra - parliamentary party “ LOC ” , and other persons who were not representatives of any political parties .", "Since DATE , to cater for the principal minority groups , ORG had broadcast programmes in CARDINAL languages , namely NORP , GPE , PERSON , NORP , NORP and LANGUAGE .", "During the DATE electoral campaign , programmes such as “ The Opposition 's Hour ” and subsequently “ Counterpoint ” allowed the opposition to express their point of view for TIME every week . Outside the electoral period , the programme “ The Political Parties ' Platform ” provided TIME DATE for an opposition politician to address the public . Furthermore , since DATE , all debates in ORG had been broadcast on ORG 's television and radio channels .", "From DATE the principal opposition party at that time , ORG , organised DATE demonstrations against the ORG 's decision to modify the school history curriculum and reintroduce the compulsory study of NORP . The demonstrations , in FAC outside the main Government building , involved CARDINAL of protesters ( see further ORG v. GPE , no . CARDINAL , ECHR CARDINAL-II ) .", "According to the ORG , the demonstrations were reported in ORG bulletins , principally in feature reports by the applicant PERSON GPE . The applicants , however , alleged that coverage of the demonstrations was very limited and strictly controlled so that , in particular , it was forbidden to give any information about the reasons for the protests or the views expressed by the opposition during the parliamentary debate .", "On DATE , CARDINAL members of staff at ORG signed the following declaration of protest :", "“ We , the employees of ORG , note that after ORG victory in the elections , our freedom of expression has been impaired . Our viewers and listeners have been deprived of the right to accurate and impartial information . In fact , the authorities have restored , in national radio and television , NORP - style political censorship , prohibited by LAW . As a result ' GPE has become an instrument for brainwashing and the manipulation of public opinion , а mouthpiece of the ruling party . We protest against these totalitarian actions , which infringe the rights of television viewers , radio listeners and the freedom of the press as a whole . Breaches of democratic principles of this kind are dangerous , because they destabilise the political situation within our country . We express our solidarity with the actions of the demonstrators , aimed against the forced russification and deliberate destruction of the democratic system . We demand the abolition of censorship within ORG Teleradio - Moldova and respect for the people 's right to accurate , reliable and impartial information . We demand that the authorities respect the democratic and pro - NORP policy which the people of this country have chosen . ”", "On DATE the declaration was forwarded to the news agencies and CARDINAL people gathered in front of the FAC headquarters to protest against political control . DATE , during the recording of the TIME news bulletin , the fourth applicant , PERSON , refused to read from the script which he had been given which omitted any mention of the protests outside the FAC headquarters . The news crew began to broadcast a report about the demonstrations but , after TIME , the bulletin was interrupted and replaced with a documentary film . Military personnel were summoned to the studio . PERSON was not permitted to present the NORP language news bulletin at TIME , because of her involvement in the protests .", "On DATE a group of ORG staff decided to go on a “ go - slow ” strike and ORG was elected for that purpose . ORG sent ORG 's President and the Government a list of demands , including the abolition of censorship , and the editors and news - casters decided to start producing uncensored news bulletins . A group of CARDINAL demonstrators gathered outside the FAC building .", "That TIME ( DATE ) , the President of GPE came to TRM and met with representatives of ORG . He stated that he was also opposed to censorship . However , he rejected a demand to offer the opposition TIME of air - time , on the ground that the demonstrations in FAC were illegal .", "On DATE the fourth applicant , PERSON , included in the script of the TIME news bulletin an item about the response of ORG to certain declarations of the President of GPE and also an interview with the leader of ORG , PERSON PERSON . The Head of the News Section deleted these paragraphs from the script . During the programme , which was broadcast live , PERSON made allegations of censorship and held the redacted script up to camera . Immediately , the Section Head ordered the technician to cut the sound .", "On DATE ORG created a special ORG to elaborate a “ strategy for improving the work of [ TRM ] ” .", "Following the events of DATE , the first applicant , PERSON , who had formerly read the news in NORP every evening , was permitted to present it only CARDINAL or two evenings a week . On DATE , on the ground that she had made a mistake while reading the news , she was demoted from the position of editor and senior news - reader to that of a junior reporter and was no longer permitted to present the bulletin .", "She brought employment proceedings against ORG and on DATE ORG held in her favour , ordering FAC to reinstate her in her previous position of news - reader . TRM did not , however , comply with the judgment and PERSON never got her former job back . She was not given enough work as a reporter and was allegedly subjected to harassment and censorship , to the point where she was no longer able to earn a living and had to resign on DATE . She then worked for a press agency and for another television company .", "On DATE the fourth applicant , PERSON , was subjected to a disciplinary sanction in the form of a severe warning ( “ mustrare aspră ” ) for having departed from the authorised script of the news bulletin on his own initiative . In addition , he was demoted from his position of news - reader and deprived of the right to present any news programmes .", "NORP He brought proceedings against FAC and , on DATE , ORG annulled the disciplinary sanction on the ground that Mr Rusnac did not appear to have breached any contractual obligation by departing from the script . It rejected his claim to be reinstated as news - reader , however , since it found that he had no contractual right to this position which he had filled on the basis of an oral agreement only . On DATE TRM withdraw the disciplinary sanction in compliance with ORG judgment .", "DATE ORG ( “ ACC ” : see paragraph CARDINAL below ) organised a series of meetings with managers and staff at TRM to discuss the issue of censorship and other problems facing the company . On DATE the ORG published its conclusions , as follows :", "“ Both the company 's administration and the staff expressed their interest and desire to find a rapid solution to the conflict , which had given rise to demands and the creation of a strike committee .", "The discussions centred on CARDINAL general themes :", "the politicised nature of ORG and the events that had occurred within [ TRM ] ;", "social and administrative issues , with emphasis on the staff 's unrealised creative potential .", "A long series of events led up to the strike . There had been a very high turnover of senior managers in the company 's central administration and departments , which had serious ramifications . Contrary to their contracts of employment , certain journalists and assistant directors stopped complying with instructions relating to the preparation and broadcasting of programmes , which led to a slipping of established standards and disregard for the rules and requirements of broadcasting . The political bias of certain television journalists is shown by the fact that a group of them immediately gave their support to the demonstrations at FAC organised by the parliamentary opposition party . Taking advantage of the situation this created , the journalists not only improperly breached professional procedures but also did their bit to aggravate the situation in the company by dividing the staff into CARDINAL camps : ' us ' and ' them ' .", "... Disciplinary sanctions , including the withdrawal of the presenter 's licence , were imposed on the journalists who had violated broadcasting procedures . The biased statements of members of ORG were rejected by the majority of ORG staff . This led to the creation of ORG , which has no fewer members than ORG .", "ORG action was not supported by ORG . The members of ORG presented demands not only to the company 's administration and the Government but also to ORG , without informing ORG .", "With regard to the notions of ' censorship ' and ' application of censorship ' in the creative process , there was an attempt to qualify as ' censorship ' the basic requirements imposed by the duty to comply with the obligations of service . At the same time the notions of both ' external ' and ' internal ' censorship were broached .", "In fact , they have tried to use the existence of censorship to justify their own poor quality work and lack of professionalism . Journalists have failed properly to perform the tasks which senior management , with the aim of producing impartial programmes , have entrusted to them . The basic requirements of professionalism are interpreted as a form of diktat or censorship . Nonetheless , it can not be ruled out that certain directors attempted to conduct their own live broadcasting in favour of the party line of the parliamentary majority . Attempts by representatives of ORG power to influence the message conveyed by programmes still persist , although the ORG does not have any concrete examples of this . It is easy to understand that this form of improper influence has led to protests on the part of creative staff . This is typical of television .", "Thus , ' political censorship ' has been defined as a lack of professionalism on the part of certain directors regarding the organisation of the creative process . ' Political censorship ' has evolved into ' intellectual censorship ' .", "It has also been observed that the company 's administration does not forbid the use of the words PERSON , NORP , LANGUAGE language , NORP history , or totalitarian regime in a historical context ; however , it does not allow their use in reports about current events . The demands of the members of ORG have been given air - time . ...", "ORG 's Statute was subjected to the scrutiny of ORG before being adopted by the Government . However , certain ORG and provisions have not yet been reflected in ORG 's creative activity or in the relations between management and staff . The proposals to change ORG into a public institution are aspirational and do not have a financial basis . ...", "So , the ORG , having examined the state of affairs in the ORG - owned company ORG , considers that", "The permanent practice of changing directors and the exertion of pressure on creative staff , which is interpreted as the application of censorship , are incompatible with the activity of the creative workforce .", "The Statute of the ORG - owned company ORG and the possible creation in the future of public posts in television and radio broadcasting should be publicly examined .", "The provisions of the Statute must be strictly complied with by the company , whose responsibility it is to set up a collegial ORG .", "The definitive decision regarding the provision of powerful equipment and funding , including remuneration , should be taken by ORG and the Government .", "The Statute and composition of ORG , and the instructions for preparing and launching programmes must be re - examined . Provision must be made for permanent review of the legislation pertaining to the audiovisual sector and with full responsibility .", "The procedures for the training and reorientation of staff must be revised , and training programmes organised in studios abroad . ”", "On DATE the President of GPE made a statement to the press concerning TRM . He expressed his reservations as regards ORG urging the GPE authorities to transform ORG TRM into LAW ( see paragraph CARDINAL below ) , but declared that he would accept ORG 's decision to make such a change .", "On DATE ORG enacted Law no . CARDINAL-XV on ORG , “ FAC ” , by which ORG became a Public Company ( see paragraph CARDINAL below ) .", "According to the new law , the staff of the old ORG had to pass an examination in order to be employed at ORG . ORG was appointed in DATE . The applicant PERSON was chosen to represent existing TRM staff in the Commission .", "All the applicants sat the examination . The results were made public on DATE . PERSON , PERSON , FAC , and PERSON failed to be confirmed in their posts , together with a large number of the persons who had been active during DATE strike . PERSON resigned from ORG in protest .", "On DATE the journalists who had not been retained in post organised a press conference at which they contended that they had been dismissed for political reasons . A feature report about that press conference was scheduled for the TIME news bulletin . However , the President of ORG took the decision to broadcast a nature documentary instead .", "On DATE , the President of TRM issued an order by which CARDINAL of the individuals who had taken part in the press - conference , including CARDINAL of the applicants , were banned from entering FAC premises . The journalists and their supporters continued their protest outside the FAC building for DATE .", "The applicants PERSON , PERSON , PERSON and DATE other individuals complained to ORG about the unlawfulness of the reinstatement procedure , claiming in particular that ORG had been unlawfully constituted .", "By a judgment of DATE ORG dismissed the action as unfounded . It found , inter alia , that ORG had been constituted pursuant to LAW . CARDINAL-XV of DATE , and that this PERSON did not grant the applicants any specific rights as to the organisation of the examination . TRM had acted within its discretionary powers under the law and there was no right to challenge legislative provisions .", "On DATE ORG dismissed the appeal as unfounded .", "At FAC in GPE , DATE , ORG adopted the following resolutions :", "Resolution No . CARDINAL on ORG", "“ ... Acknowledging that public service broadcasting , both radio and television , support the values underlying the political , legal and social structures of democratic societies , and in particular respect for human rights , culture and political pluralism ;", "Stressing the importance of public service broadcasting for democratic societies ;", "Recognising therefore the need to guarantee the permanence and stability of public service broadcasting so as to allow it to continue to operate in the service of the public ;", "Underlining the vital function of public service broadcasting as an essential factor of pluralistic communication accessible to everyone ;", "Recalling the importance of radio and stressing its great potential for the development of democratic societies , particularly at the regional and local levels ;", "I. General principles", "Affirm their commitment to maintain and develop a strong public service broadcasting system in an environment characterised by an increasingly competitive offer of programme services and rapid technological change ;", "Acknowledge , in line with the conclusions adopted at DATE European Ministerial Conference , that privately owned companies as well as public organisations may provide such a service ;", "Undertake to guarantee CARDINAL comprehensive wide - range programme service comprising information , education , culture and entertainment which is accessible to all members of the public , while acknowledging that public service broadcasters must also be permitted to provide , where appropriate , additional programme services such as thematic services ;", "Undertake to define clearly , in accordance with appropriate arrangements in domestic law and practice and in respect for their international obligations , the role , missions and responsibilities of public service broadcasters and to ensure their editorial independence against political and economic interference ;", "Undertake to guarantee public service broadcasters secure and appropriate means necessary for the fulfilment of their missions ;", "Agree to implement these commitments in accordance with the following framework :", "II . Policy framework for public service broadcasting", "Public service requirements", "ORG agree that public service broadcasters , within the general framework defined for them and without prejudice to more specific public service remits , must have principally the following missions :", "- to provide , through their programming , a reference point for all members of the public and a factor for social cohesion and integration of all individuals , groups and communities . In particular , they must reject any cultural , sexual , religious or racial discrimination and any form of social segregation ;", "- to provide a forum for public discussion in which as broad a spectrum as possible of views and opinions can be expressed ;", "- to broadcast impartial and independent news , information and comment ;", "- to develop pluralistic , innovatory and varied programming which meets high ethical and quality standards and not to sacrifice the pursuit of quality to market forces ;", "- to develop and structure programme schedules and services of interest to a wide public while being attentive to the needs of minority groups ;", "- to reflect the different philosophical ideas and religious beliefs in society , with the aim of strengthening mutual understanding and tolerance and promoting community relations in pluriethnic and multicultural societies ;", "- to contribute actively through their programming to a greater appreciation and dissemination of the diversity of national and NORP cultural heritage ;", "- to ensure that the programmes offered contain a significant proportion of original productions , especially feature films , drama and other creative works , and to have regard to the need to use independent producers and co - operate with the cinema sector ;", "- to extend the choice available to viewers and listeners by also offering programme services which are not normally provided by commercial broadcasters .", "Funding", "Participating states undertake to maintain and , where necessary , establish an appropriate and secure funding framework which guarantees public service broadcasters the means necessary to accomplish their missions . There exist a number of sources of funding for sustaining and promoting public service broadcasting , such as : licence fees , public subsidies , advertising and sponsorship revenue ; sales of their audio - visual works and programme agreements . Where appropriate , funding may also be provided from charges for thematic services offered as a complement to the basic service .", "The level of licence fee or public subsidy should be projected over a sufficient period of time so as to allow public service broadcasters to engage in long term planning .", "Economic practices", "Participating states should endeavour to ensure that economic practices such as the concentration of media ownership , the acquisition of exclusive rights and the control over distribution systems such as conditional access techniques , do not prejudice the vital contribution public service broadcasters have to make to pluralism and the right of the public to receive information .", "GPE and accountability", "Participating states undertake to guarantee the independence of public service broadcasters against political and economic interference . In particular , day to day management and editorial responsibility for programme schedules and the content of programmes must be a matter entirely for the broadcasters themselves .", "The independence of public service broadcasters must be guaranteed by appropriate structures such as pluralistic internal boards or other independent bodies .", "The control and accountability of public service broadcasters , especially as regards the discharge of their missions and use of their resources , must be guaranteed by appropriate means .", "Public service broadcasters must be directly accountable to the public . To that end , public service broadcasters should regularly publish information on their activities and develop procedures for allowing viewers and listeners to comment on the way in which they carry out their missions . ...", "Participating states , together with public service broadcasters , should examine at regular intervals at the NORP level the impact of technological change on the role of public service broadcasting at both the national and transnational levels .", "In DATE ORG no . R(CARDINAL)CARDINAL , on “ ORG ” , which stated as follows :", "“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,", "Considering that the aim of ORG is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage ;", "Recalling that the independence of the media , including broadcasting , is essential for the functioning of a NORP society ;", "Stressing the importance which it attaches to respect for media independence , especially by governments ;", "Recalling in this respect the principles endorsed by the governments of the member states of ORG set out in the declaration on freedom of expression and information of CARDINAL DATE , especially as regards the need for a wide range of independent and autonomous means of communication allowing for the reflection of a diversity of ideas and opinions ;", "Reaffirming the vital role of public service broadcasting as an essential factor of pluralistic communication which is accessible to everyone at both national and regional levels , through the provision of a basic comprehensive programme service comprising information , education , culture and entertainment ;", "Recalling the commitments accepted by the representatives of the states participating in the CARDINALth European Ministerial Conference on Mass Media Policy ( Prague , DATE ) in the framework of Resolution No . CARDINAL on the future of public service broadcasting , especially respect for the independence of public service broadcasting organisations ;", "Noting the need to develop further the principles on the independence of public service broadcasting set out in the aforementioned GPE resolution in the light of the challenges raised by political , economic and technological change in LOC ;", "Considering that , in the light of these challenges , the independence of public service broadcasting should be guaranteed expressly at the national level by means of a body of rules dealing with all aspects of its functioning ;", "Underlining the importance of ensuring strict respect for these rules by any person or authority external to public service broadcasting organisations ,", "Recommends the governments of the member states :", "a. to include in their domestic law or in instruments governing public service broadcasting organisations provisions guaranteeing their independence in accordance with the guidelines set out in the appendix to this recommendation ;", "b. to bring these guidelines to the attention of authorities responsible for supervising the activities of public service broadcasting organisations as well as to the attention of the management and staff of such organisations .", "Appendix to Recommendation No . R(CARDINAL)CARDINAL", "Guidelines on the guarantee of the independence of public service broadcasting", "I. General provisions", "The legal framework governing public service broadcasting organisations should clearly stipulate their editorial independence and institutional autonomy , especially in areas such as :", "- the definition of programme schedules ;", "- the conception and production of programmes ;", "- the editing and presentation of news and current affairs programmes ;", "- the organisation of the activities of the service ;", "- recruitment , employment and staff management within the service ;", "- the purchase , hire , sale and use of goods and services ;", "- the management of financial resources ;", "- the preparation and execution of the budget ;", "- the negotiation , preparation and signature of legal acts relating to the operation of the service ;", "- the representation of the service in legal proceedings as well as with respect to third parties .", "The provisions relating to the responsibility and supervision of public service broadcasting organisations and their statutory organs should be clearly defined in the governing legal framework .", "The programming activities of public service broadcasting organisations shall not be subject to any form of censorship .", "No a priori control of the activities of public service broadcasting organisations shall be exercised by external persons or bodies except in exceptional cases provided for by law .", "II . Boards of management of public service broadcasting organisations", "Competences", "The legal framework governing public service broadcasting organisations should stipulate that their boards of management are solely responsible for DATE operation of their organisation .", "Status", "The rules governing the status of the boards of management of public service broadcasting organisations , especially their membership , should be defined in a manner which avoids placing the boards at risk of any political or other interference .", "These rules should , in particular , stipulate that the members of boards of management or persons assuming such functions in an individual capacity :", "- exercise their functions strictly in the interests of the public service broadcasting organisation which they represent and manage ;", "- may not , directly or indirectly , exercise functions , receive payment or hold interests in enterprises or other organisations in media or media - related sectors where this would lead to a conflict of interest with the management functions which they exercise in their public service broadcasting organisation ;", "- may not receive any mandate or take instructions from any person or body whatsoever other than the bodies or individuals responsible for the supervision of the public service broadcasting organisation in question , subject to exceptional cases provided for by law .", "Responsibilities", "Subject to their accountability to the courts for the exercise of their competences in cases provided for by law , the boards of management of public service broadcasting organisations , or individuals assuming such functions in an individual capacity , should only be accountable for the exercise of their functions to the supervisory body of their public service broadcasting organisation .", "Any decision taken by the aforementioned supervisory bodies against members of the boards of management of public service broadcasting organisations or persons assuming such functions in an individual capacity for breach of their duties and obligations should be duly reasoned and subject to appeal to the competent courts .", "III . Supervisory bodies of public service broadcasting organisations", "Competences", "The legal framework governing public service broadcasting organisations should define clearly and precisely the competences of their supervisory bodies .", "The supervisory bodies of public service broadcasting organisations should not exercise any a priori control over programming .", "Status", "The rules governing the status of the supervisory bodies of public service broadcasting organisations , especially their membership , should be defined in a way which avoids placing the bodies at risk of political or other interference .", "These rules should , in particular , guarantee that the members of the supervisory bodies :", "- are appointed in an open and pluralistic manner ;", "- represent collectively the interests of society in general ;", "- may not receive any mandate or take any instructions from any person or body other than the one which appointed them , subject to any contrary provisions prescribed by law in exceptional cases ;", "- may not be dismissed , suspended or replaced during their term of office by any person or body other than the one which appointed them , except where the supervisory body has duly certified that they are incapable of or have been prevented from exercising their functions ;", "- may not , directly or indirectly , exercise functions , receive payment or hold interests in enterprises or other organisations in media or media - related sectors where this would lead to a conflict of interest with their functions within the supervisory body .", "Rules on the payment of members of the supervisory bodies of public service broadcasting organisations should be defined in a clear and open manner by the texts governing these bodies .", "IV . NORP Staff of public service broadcasting organisations", "The recruitment , promotion and transfer as well as the rights and obligations of the staff of public service broadcasting organisations should not depend on origin , sex , opinions or political , philosophical or religious beliefs or trade union membership .", "The staff of public service broadcasting organisations should be guaranteed without discrimination the right to take part in trade union activities and to strike , subject to any restrictions laid down by law to guarantee the continuity of the public service or other legitimate reasons .", "The legal framework governing public service broadcasting organisations should clearly stipulate that the staff of these organisations may not take any instructions whatsoever from individuals or bodies outside the organisation employing them without the agreement of the board of management of the organisation , subject to the competences of the supervisory bodies .", "V. Funding of public service broadcasting organisations", "The rules governing the funding of public service broadcasting organisations should be based on the principle that member states undertake to maintain and , where necessary , establish an appropriate , secure and transparent funding framework which guarantees public service broadcasting organisations the means necessary to accomplish their missions .", "The following principles should apply in cases where the funding of a public service broadcasting organisation is based either entirely or in part on a regular or exceptional contribution from the state budget or on a licence fee :", "- the decision - making power of authorities external to the public service broadcasting organisation in question regarding its funding should not be used to exert , directly or indirectly , any influence over the editorial independence and institutional autonomy of the organisation ;", "- the level of the contribution or licence fee should be fixed after consultation with the public service broadcasting organisation concerned , taking account of trends in the costs of its activities , and in a way which allows the organisation to carry out fully its various missions ;", "- payment of the contribution or licence fee should be made in a way which guarantees the continuity of the activities of the public service broadcasting organisation and which allows it to engage in long - term planning ;", "- the use of the contribution or licence fee by the public service broadcasting organisation should respect the principle of independence and autonomy mentioned in guideline No . CARDINAL ;", "- where the contribution or licence fee revenue has to be shared among several public service broadcasting organisations , this should be done in a way which satisfies in an equitable manner the needs of each organisation .", "The rules on the financial supervision of public service broadcasting organisations should not prejudice their independence in programming matters as stated in guideline No . CARDINAL .", "VI . The programming policy of public service broadcasting organisations", "The legal framework governing public service broadcasting organisations should clearly stipulate that they shall ensure that news programmes fairly present facts and events and encourage the free formation of opinions .", "The cases in which public service broadcasting organisations may be compelled to broadcast official messages , declarations or communications , or to report on the acts or decisions of public authorities , or to grant airtime to such authorities , should be confined to exceptional circumstances expressly laid down in laws or regulations .", "Any official announcements should be clearly described as such and should be broadcast under the sole responsibility of the commissioning authority .", "VII . Access by public service broadcasting organisations to new communications technologies", "Public service broadcasting organisations should be able to exploit new communications technologies and , where authorised , to develop new services based on such technologies in order to fulfil in an independent manner their missions as defined by law . ”", "In DATE ORG on “ The Independence and Functions of Regulatory Authorities for the Broadcasting Sector ” which , inter alia , emphasised that to guarantee the existence of a wide range of independent and autonomous media in the broadcasting sector , it was essential to provide for adequate and proportionate regulation , in order to guarantee the freedom of the media whilst at the same time ensuring a balance between that freedom and other legitimate rights and interests . ORG therefore recommended that Member States should :", "“ a. establish , if they have not already done so , independent regulatory authorities for the broadcasting sector ;", "b. include provisions in their legislation and measures in their policies entrusting the regulatory authorities for the broadcasting sector with powers which enable them to fulfil their missions , as prescribed by national law , in an effective , independent and transparent manner , in accordance with the guidelines set out in the appendix to this recommendation ;", "c. bring these guidelines to the attention of the regulatory authorities for the broadcasting sector , public authorities and professional groups concerned , as well as to the general public , while ensuring the effective respect of the independence of the regulatory authorities with regard to any interference in their activities .", "Appendix to Recommendation Rec(CARDINAL)CARDINAL", "Guidelines concerning the independence and functions of regulatory authorities for the broadcasting sector", "I. General legislative framework", "Member states should ensure the establishment and unimpeded functioning of regulatory authorities for the broadcasting sector by devising an appropriate legislative framework for this purpose . The rules and procedures governing or affecting the functioning of regulatory authorities should clearly affirm and protect their independence .", "NORP The duties and powers of regulatory authorities for the broadcasting sector , as well as the ways of making them accountable , the procedures for appointment of their members and the means of their funding should be clearly defined in law .", "II . Appointment , composition and functioning", "The rules governing regulatory authorities for the broadcasting sector , especially their membership , are a key element of their independence . Therefore , they should be defined so as to protect them against any interference , in particular by political forces or economic interests .", "For this purpose , specific rules should be defined as regards incompatibilities in order to avoid that :", "- regulatory authorities are under the influence of political power ;", "- members of regulatory authorities exercise functions or hold interests in enterprises or other organisations in the media or related sectors , which might lead to a conflict of interest in connection with membership of the regulatory authority .", "Furthermore , rules should guarantee that the members of these authorities :", "- are appointed in a democratic and transparent manner ;", "- may not receive any mandate or take any instructions from any person or body ;", "- do not make any statement or undertake any action which may prejudice the independence of their functions and do not take any advantage of them .", "Finally , precise rules should be defined as regards the possibility to dismiss members of regulatory authorities so as to avoid that dismissal be used as a means of political pressure .", "NORP In particular , dismissal should only be possible in case of non - respect of the rules of incompatibility with which they must comply or incapacity to exercise their functions duly noted , without prejudice to the possibility for the person concerned to appeal to the courts against the dismissal . Furthermore , dismissal on the grounds of an offence connected or not with their functions should only be possible in serious instances clearly defined by law , subject to a final sentence by a court .", "Given the broadcasting sector 's specific nature and the peculiarities of their missions , regulatory authorities should include experts in the areas which fall within their competence .", "III . Financial independence", "Arrangements for the funding of regulatory authorities - another key element in their independence - should be specified in law in accordance with a clearly defined plan , with reference to the estimated cost of the regulatory authorities ' activities , so as to allow them to carry out their functions fully and independently .", "Public authorities should not use their financial decision - making power to interfere with the independence of regulatory authorities . Furthermore , recourse to the services or expertise of the national administration or third parties should not affect their independence .", "Funding arrangements should take advantage , where appropriate , of mechanisms which do not depend on ad - hoc decision - making of public or private bodies .", "IV . Powers and competence", "Regulatory powers", "Subject to clearly defined delegation by the legislator , regulatory authorities should have the power to adopt regulations and guidelines concerning broadcasting activities . Within the framework of the law , they should also have the power to adopt internal rules .", "...", "Monitoring broadcasters ' compliance with their commitments and obligations", "Another essential function of regulatory authorities should be monitoring compliance with the conditions laid down in law and in the licences granted to broadcasters . They should , in particular , ensure that broadcasters who fall within their jurisdiction respect the basic principles laid down in LAW , and in particular those defined in DATE .", "Regulatory authorities should not exercise a priori control over programming and the monitoring of programmes should therefore always take place after the broadcasting of programmes .", "Regulatory authorities should be given the right to request and receive information from broadcasters in so far as this is necessary for the performance of their tasks .", "Regulatory authorities should have the power to consider complaints , within their field of competence , concerning the broadcasters ' activity and to publish their conclusions regularly .", "When a broadcaster fails to respect the law or the conditions specified in his licence , the regulatory authorities should have the power to impose sanctions , in accordance with the law .", "A range of sanctions which have to be prescribed by law should be available , starting with a warning . Sanctions should be proportionate and should not be decided upon until the broadcaster in question has been given an opportunity to be heard . All sanctions should also be open to review by the competent jurisdictions according to national law .", "Powers in relation to public service broadcasters", "Regulatory authorities may also be given the mission to carry out tasks often incumbent on specific supervisory bodies of public service broadcasting organisations , while at the same time respecting their editorial independence and their institutional autonomy .", "V. Accountability", "Regulatory authorities should be accountable to the public for their activities , and should , for example , publish regular or ad hoc reports relevant to their work or the exercise of their missions .", "NORP In order to protect the regulatory authorities ' independence , whilst at the same time making them accountable for their activities , it is necessary that they should be supervised only in respect of the lawfulness of their activities , and the correctness and transparency of their financial activities . With respect to the legality of their activities , this supervision should be exercised a posteriori only . The regulations on responsibility and supervision of the regulatory authorities should be clearly defined in the laws applying to them .", "All decisions taken and regulations adopted by the regulatory authorities should be :", "- duly reasoned , in accordance with national law ;", "- open to review by the competent jurisdictions according to national law ;", "- made available to the public . ”", "On DATE ORG adopted a “ Declaration on the guarantee of the independence of public service broadcasting in the member states ” which provided as follows ( footnotes omitted ) :", "“ Recalling the commitment of member states to the fundamental right to freedom of expression and information , as guaranteed by LAW ) ;", "Recalling , in particular , the importance of freedom of expression and information as a cornerstone of democratic and pluralist society , as underlined in the relevant case law of ORG and , in this context , stressing the importance of the existence of a wide variety of independent and autonomous media , permitting the reflection of diversity of ideas and opinions , as stated in ORG on freedom of expression and information of DATE ;", "Highlighting the specific remit of public service broadcasting and reaffirming its vital role as an essential element of pluralist communication and of social cohesion which , through the provision of comprehensive programme services accessible to everyone , comprising information , education , culture and entertainment , seeks to promote the values of modern democratic societies and , in particular , respect for human rights , cultural diversity and political pluralism ;", "Reiterating the objective to ensure the absence of any arbitrary controls or constraints on participants in the information process , on media content or on the transmission and dissemination of information , as stated in the LAW on the freedom of expression and information ;", "Bearing in mind the undertaking made at the CARDINALth European Ministerial Conference on Mass Media Policy ( Prague , DATE ) to guarantee the independence of public service broadcasters against any political and economic interference and , more particularly , recalling Recommendation No . R ( CARDINAL ) CARDINAL on the guarantee of the independence of public service broadcasting ;", "Considering that the editorial independence and institutional autonomy of public service broadcasting , including through an appropriate , secure and transparent funding framework , should be guaranteed by means of a coherent policy and an adequate legal framework , and ensured by the effective implementation of the said policy and framework ;", "Welcoming the situation which prevails in those member states where the independence of public service broadcasting is solidly entrenched through the regulatory framework and scrupulously respected in practice , as well as the progress being made in other member states towards securing such independence ;", "Noting the concern expressed by ORG of ORG in its Recommendation CARDINAL ( DATE ) on public service broadcasting that the fundamental principle of the independence of public service broadcasting contained in Recommendation No . R(CARDINAL)CARDINAL is still not firmly established in a number of member states ;", "Bearing in mind the texts adopted at the CARDINALth ORG on Mass Media Policy ( GPE , DATE ) , in particular the Ministers ' call for the monitoring of the implementation by member states of ORG . R ( CARDINAL ) CARDINAL , and taking note , in this connection , of the overview contained in the appendix hereto concerning the situation in member states ;", "Regretting developments in a few member states that tend to weaken the guarantee of independence of public service broadcasting or lessen the independence that had already been attained , and expressing concern about the slow or insignificant progress being made in certain other member states towards securing independent public service broadcasting , be it as a result of an inadequate regulatory framework or the failure to apply in practice existing laws and regulations ,", "I. Reiterates its firm attachment to the objectives of editorial independence and institutional autonomy of public service broadcasting organisations in member states ;", "II . Calls on member states to :", "- implement , if they have not yet done so , Recommendation No . R(CARDINAL)CARDINAL on the guarantee of the independence of public service broadcasting , with particular reference to the guidelines appended thereto , and having regard to the opportunities and challenges brought about by the information society , as well as by political , economic and technological changes in LOC ;", "- provide the legal , political , financial , technical and other means necessary to ensure genuine editorial independence and institutional autonomy of public service broadcasting organisations , so as to remove any risk of political or economic interference ;", "- disseminate widely the present declaration and , in particular , bring it to the attention of the relevant authorities and of public service broadcasting organisations , as well as to other interested professional and industrial circles ;", "III . Invites public service broadcasters to be conscious of their particular remit in a NORP society as an essential element of pluralist communication and of social cohesion , which should offer a wide range of programmes and services to all sectors of the public , to be attentive to the conditions required in order to fulfil that remit in a fully independent manner and , to this end , to elaborate and adopt or , if appropriate , review , and to respect codes of professional ethics or internal guidelines .", "Appendix to the Declaration", "Introduction", "NORP By decision of DATE , ORG instructed ORG on ORG ) , which subsequently became ORG on the Media and ORG ( ORG ) , inter alia to look into ' the independence of the public broadcasting service ' .", "The Ministers participating in the CARDINALth ORG on Mass Media Policy ( GPE , DATE ) also requested that ORG monitor the implementation by member states of ORG . R ( CARDINAL ) CARDINAL of ORG on the guarantee of the independence of public service broadcasting , with a view , if necessary , to providing further guidance to member states on how to secure this independence ' .", "This appendix contains an overview on the independence of public service broadcasting organisations in member states . The appendix and ORG declaration that precedes it have been prepared under the authority of the ORG by its subordinate ORG on public service broadcasting in the information society ( ORG PSB ) in response to the above - mentioned instructions and request .", "This appendix is based on ORG documents as well as on information available from a variety of other sources , including international and non - governmental organisations . Its purpose is to give an overview of the complex and diverse situation in ORG member states and to identify areas where national audiovisual or media policies , as well as legal , institutional or financial frameworks for public service broadcasting resulting from these policies , may need to be re - examined to become better aligned with ORG .", "Legal framework", "According to Recommendation No . R ( CARDINAL ) CARDINAL , the legal framework governing public service broadcasting organisations should clearly stipulate their independence . The general provisions in Part I of the appendix to that recommendation highlight a number of issues requiring appropriate regulations in order to guarantee that independence . Specific reference is made to the need to regulate the responsibility and supervision of public service broadcasting organisations and of their statutory organs , and to the requirement that there be no form of undue interference in the form of censorship and a priori control of their activities .", "Almost all ORG member states have established legal frameworks governing public service broadcasting , in a few cases with a clear constitutional basis . The latter reflects the understanding that the legal basis of public service broadcasting should be subject to broad consensus .", "Many of those legal frameworks can be regarded as meeting ORG , in particular to the extent that they declare the editorial independence and institutional autonomy of public service broadcasting organisations and set out rules for the establishment , membership and operation of their governing and supervisory bodies . Some of those regulatory frameworks and the manner in which they are applied in practice are fully consistent with ORG on the subject and , on occasion , can even be characterised as exemplary .", "By contrast , in a number of ORG member states , legal frameworks for public service broadcasting organisations are unclear or incomplete . In some cases , the applicable regulations are not capable of guaranteeing editorial independence and institutional autonomy of public service broadcasters , whether as a result of the tenor of substantive provisions or of the weakness or absence of mechanisms designed to ensure their application .", "Reportedly , in some cases , while relevant provisions may be adequate , they are disregarded in practice , leaving public service broadcasting organisation under the effective control of the government or political bodies or formations , serving the interests of those bodies rather than society at large .", "On occasion , the provisions relating to governing or supervisory bodies ( as , for example , regarding the selection , appointment and termination of appointment of members ) entail a risk of interference . In this connection , complaints have been voiced to the effect that proposed or actual changes to the regulatory framework in a few member states curtail the independence of public service broadcasters ' governing and/or supervisory bodies .", "Public service remit", "Resolution No . CARDINAL on the future of public service broadcasting , adopted at the CARDINALth European Ministerial Conference on Mass Media Policy ( Prague , DATE ) , summarises the main missions of public service broadcasters . In this context , it should be recalled that Recommendation Rec(CARDINAL)CARDINAL on measures to promote the democratic and social contribution of digital broadcasting states that ' public service broadcasting should preserve its special social remit , including a basic general service that offers news , educational , cultural and entertainment programmes aimed at different categories of the public ' .", "Further , the above - mentioned Resolution No . CARDINAL includes an undertaking ' to define clearly , in accordance with appropriate arrangements in domestic law and practice and in respect for their international obligations , the role , missions and responsibilities of public service broadcasters and to ensure their editorial independence against political and economic interference ' .", "In the media context , a genuine public service presupposes the independence of the organisations entrusted with the delivery of that service . It also involves the ability , in terms of legal provisions and material possibilities , to adapt to changing circumstances . This close link between public service remit and independence is the guiding principle behind Recommendation No . R(CARDINAL)CARDINAL .", "In practically all ORG member states , the relevant legal frameworks address the question of public service remit .", "While there is great diversity in the approach followed ( for example , as to the degree of detail provided , reflecting each country 's broadcasting strategy and policies , as well as the cultural , economic or political context , mostly by defining it in a clear and comprehensive manner ) , the determination of the remit of public service broadcasting organisations can on the whole be regarded as satisfactory . In some cases , the public service broadcasting organisations ' purpose is particularly well defined , both in terms of immediate aims and the manner in which those aims should be achieved , as well as envisaged future developments ( for example , in view of the new information and communication technologies ( ITCs ) ) .", "By contrast , in some member states , the remit of public service media is unclear or difficult to apply . This has not paved the way to offering quality services of public interest ( for example , balanced / impartial news programmes ; education and learning ; investigative journalism ; ensuring pluralism and diversity in the media ; minority and local / community programmes ; offering quality entertainment ; and promoting creativity ) which have traditionally distinguished public service broadcasting organisations from commercial ones .", "There has been criticism that , in certain countries , the distinction between public service and commercial broadcasting has become increasingly blurred , leading to what is called ' programme convergence ' , to the detriment of the quality of the programmes offered by the former . While it is important for public service broadcasters to offer entertainment programmes and to seek to reach wide audiences , the distinctiveness of public service content as a whole , vis - à - vis commercial output , must also be ensured . Moreover , on occasion , the public service broadcasters are not provided with the legal means or the material resources necessary for the adequate implementation of the public service entrusted to them . This situation can result in poor quality programmes or lead to over - reliance on mass - appeal and revenue - generating programmes , which is not in keeping with the public service remit .", "It would appear that , in those countries where the situations described in the foregoing paragraph prevail , either there is little knowledge both among professionals and within society at large of the particular mission of public service broadcasters and understanding of the characteristics of public media , or proper performance of the public service mission is prevented by extraneous circumstances . In some of those countries , there would also seem to be a lack of experience as regards public service broadcasting , leading to widespread indifference regarding its role in a NORP society or a lack of confidence that genuine public service in the audiovisual area will be established and safeguarded .", "Remedying these shortcomings , restoring or enhancing the legitimacy of public service broadcasting and , more particularly , raising awareness of and promoting the importance of such a service based on ORG standards is essential . The role of public authorities in this respect should not be underestimated .", "As already indicated , in some member states , public service broadcasting organisations ' legal framework specifically permits them to adapt in light of developments ( for example , new communication technologies ) . In several member states , while this is not specifically foreseen in the legal framework , nothing prevents them from offering the public service entrusted to them using new formats or platforms . Progress in this area is to be welcomed . In other cases , however , existing provisions do not allow or are interpreted as an obstacle for such development .", "Editorial independence", "Article CARDINAL , paragraph CARDINAL , of ORG stipulates that ' everyone has the right to freedom of expression . This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... ' . In its case law , ORG has repeatedly underlined the importance of this right with regard to freedom of the media and editorial independence .", "ORG has developed further standards reinforcing freedom of the media and editorial independence .", "In its LAW on freedom of expression and information , adopted on DATE , ORG underlined the objective to ensure the absence of any arbitrary controls or constraints on participants in the information process , on media content or on the transmission and dissemination of information . Further , at the CARDINALth European Ministerial Conference on Mass Media Policy , Council of Europe member states undertook to guarantee the independence of public service broadcasters against political and economic interference . These commitments and objectives have been reiterated in a number of other ORG documents , and are also at the origin of Recommendation No . R(CARDINAL)CARDINAL .", "More particularly , in Part I , Recommendation No . R ( CARDINAL)CARDINAL stipulates that the legal framework governing public service broadcasting organisations should provide for their editorial independence , offers guidance designed to facilitate the guarantee of editorial independence and proscribes interference in the form of censorship or control of their activities .", "As already indicated , the legal frameworks in many ORG member states make provision for the editorial independence of public service broadcasting organisations .", "In practice , in a majority of member states , public service broadcasters enjoy editorial independence and institutional autonomy . It is generally acknowledged that , in those member states , interference with editorial independence would be met with a strong reaction from the public service broadcasting organisations concerned , as well as by other media , civil society and the public in general . In several member states , legal mechanisms have been set up to deal with such situations should they occur .", "NORP However , in other cases , some public service broadcasting organisations reportedly face interference and pressure . Such allegations concern close ties between public service broadcasters and government , politicians or public or private entities , or the undue influence of such bodies or persons on public service broadcasting organisations , which compromise editorial independence . The situation during electoral periods and campaigns is often highlighted ; it is alleged that , during such periods , leverage over public broadcasters is used to ensure favourable coverage .", "In some ORG member states , the process of transformation of state broadcasting organisations into genuine public service broadcasters has been slow or still is under way and has , on occasion , been more formal than real . In some countries , the influence of governments and politicians on broadcasting regulators or the broadcasting sector in general has been identified as the key impediment to building and ensuring a diverse , impartial and pluralistic broadcasting landscape . The undue influence of private actors has also on occasion been reported .", "It might be added that , in some member states , there is a lack of tradition concerning self - regulation or co - regulation , the adoption of and compliance with editorial standards , and a general culture of objectivity and professionalism . Ethical codes and internal guidelines , which can greatly contribute to the independent functioning of public service broadcasters , have not yet been adopted in all member states experiencing the problems outlined above .", "Funding", "The question of resources available to public service broadcasting organisations is at the crux of the issue of their independence and their ability to fulfil their remit . This explains the undertakings made at the CARDINALth European Ministerial Conference on Mass Media Policy ' to guarantee public service broadcasters secure and appropriate means necessary for the fulfilment of their missions ' and ' to maintain and , where necessary , establish an appropriate and secure funding framework which guarantees public service broadcasting organisations the means necessary to accomplish their missions ' , as well as the attention paid to the matter in Recommendation No . R(CARDINAL)CARDINAL .", "In some ORG member states , public service broadcasting organisations receive appropriate funding , be it in the form of direct contributions from the state , licence fees , income - generating activities or a combination of these sources .", "Whichever approach is adopted , it can be implemented with due respect for the market . It is generally agreed that care should be taken so that funding of public service broadcasters does not affect competition on the audiovisual market to an extent which would be contrary to the common interest . That said , excessive reliance on income - generating activities , which is often caused by a lack of public funding , can have a negative impact on programming and , in consequence , on the fulfilment of the public service remit entrusted to the organisations concerned .", "It is often advanced that there is some degree of correlation between the resources available to public service broadcasting organisations and the quality of the services rendered by them . However , the satisfactory delivery of public service and sound management can also be regarded as contributing to attracting adequate resources .", "Reportedly , in other ORG member states , there is no appropriate , secure and transparent funding framework guaranteeing public service broadcasting organisations the means necessary to accomplish their remit . On occasion , funding commitments and mechanisms often represent mere statements of intention , without efforts being made to implement them in practice .", "Concerns are also frequently expressed as regards the threat to the continuity of the activities of public service broadcasting organisations due to uncertainty of both short- and longer - term funding ( for example , as a result of lack of consultation on state contributions , difficulties arising from the fee collection system , failure to adjust contributions of licence fees in view of inflation ) or exposure to pressure from authorities with financial decision - making power and the resulting threat to editorial independence and institutional autonomy . In order to avoid such risks , especially in cases where public funding comes from the state budget , appropriate safeguards should be put in place .", "Employee protection", "The relevance of staff policy matters has also been recognised in Recommendation No . R(CARDINAL)CARDINAL , which contains some references to recruitment and non - discrimination , associative activities and the right to engage in industrial action , and the requirement that staff be free from influence from outside the public service broadcasting organisation concerned .", "It would appear that these criteria are met in many ORG member states , and that employee protection standards are generally respected .", "NORP However , reportedly , in a number of ORG member states , such standards are not yet well - established , particularly where the media are concerned . This situation renders media professionals more exposed to political and economic influence and pressure and less committed to professional standards .", "Complaints are sometimes made of discrimination or dismissal of journalists resulting from pressure brought to bear on management by outside persons or bodies , and allegations have been made to the effect that , in certain countries , under cover of the process of transformation of state broadcasting organisations into public service broadcasters , journalists who are thought to be too controversial or inquisitive have been dismissed .", "Concern has also been expressed in respect of proposals to give responsibility for the management of staff issues in public service broadcasters or regulatory bodies to the government .", "ORG , transparency and accountability", "Due to its very nature , public service broadcasting should be accountable to society at large , both because it exists to serve the public in general and because , in most cases , it is financed at least partly from public resources ( for example , state contributions ) or from broadcasting fees , paid by the intended beneficiaries of the service . According to Resolution No . CARDINAL adopted at the CARDINALth European Ministerial Conference on Mass Media Policy , ' public service broadcasters must be directly accountable to the public . To that end , public service broadcasters should regularly publish information on their activities and develop procedures for allowing viewers and listeners to comment on the way in which they carry out their missions ' .", "It goes without saying that accountability is also desirable as regards the sound management of the resources available to public service broadcasting organisations .", "NORP In most ORG member states , public service broadcasting organisations are relatively open and transparent .", "Noteworthy examples of good practice as regards accountability concern some public service broadcasting organisations that engage very actively in seeking audience feedback with a view to assessing their own performance and review , when necessary , the services provided by them .", "Many public service broadcasters publish relevant information on a regular basis , some being subject to statutory obligations to publishing DATE reports or submit such reports to parliament . This allows for desirable public scrutiny .", "NORP However , in some cases , there is insufficient openness , transparency and accountability vis - à - vis society at large as to how public service broadcasting organisations implement their mission and use the ( public ) resources available to them . It has also been advanced that there are cases where , despite provisions concerning submission of an annual report to the national parliament , such a report is rarely the subject of scrutiny and real debate . ”", "Under LAW ( Law no . CARDINAL-XIV of DATE ) , statutes and regulatory administrative decrees , orders and decisions of the President and the Government are not subject to judicial review ; they are subject to verification of their constitutionality . A review of constitutionality is undertaken only when ORG is seized of the matter ( section CARDINAL of LAW , PERSON no . CARDINAL-XIII , DATE ) . There is no direct access in the form of an individual petition to ORG . The persons and institutions entitled to refer a case to ORG are exhaustively listed in section CARDINAL of LAW and LAW , which provide as follows :", "“ The following shall have the right to refer a case to ORG :", "( a ) the President of GPE ;", "( b ) the Government ;", "( c ) the Minister of ORG ;", "( d ) ORG ;", "( e ) ORG ;", "( f ) the Attorney General ;", "( g ) a member of ORG ;", "( h ) a parliamentary group ;", "( i ) the ORG ;", "( j ) ORG of GPE ( PERSON ) ... ”", "Freedom of expression is guaranteed by the LAW , as follows :", "( CARDINAL ) All citizens are guaranteed the freedom of opinion as well as the freedom of publicly expressing their thoughts and opinions by way of word , image or any other means possible .", "( CARDINAL ) The exercise of freedom of expression may not harm the honour , dignity or the rights of other people to have and express their own opinions or judgments .", "( CARDINAL ) The law shall forbid and prosecute all actions aimed at denying and slandering the ORG or the people . Instigations to sedition , war , aggression , ethnic , racial or religious hatred , the incitement to discrimination , territorial separatism , public violence , or other actions threatening constitutional order are also forbidden and liable to be prosecuted . ”", "LAW ( Law no . CARDINAL of DATE ) set out standards for freedom of expression in audiovisual broadcasting , as follows :", "( CARDINAL ) The audiovisual institutions shall not be subjected to censorship .", "Freedom of audiovisual expression implies strict observance of the LAW and it can not be exercised to the detriment of another person 's dignity , honour , private life or image .", "( CARDINAL ) The ORG shall guarantee all the necessary conditions for the activity of the public audiovisual institutions .", "( CARDINAL ) The ORG shall guarantee the endowment of the public audiovisual institutions with the necessary technical equipment for their broadcasting .", "A journalist from an audiovisual institution , who acts on its behalf , shall have the right :", "...", "( h ) to access to the courts at all levels .", "The Act also set up ORG ( “ ACC ” ) :", "( CARDINAL ) ORG shall be composed of CARDINAL members , appointed by :", "( a ) the ORG – CARDINAL members ( including CARDINAL audiovisual specialist ) ;", "( b ) the President of GPE – CARDINAL members ( including CARDINAL audiovisual specialist ) ;", "( c ) the Government - CARDINAL members ( including CARDINAL specialist in telecommunications ) . ... ”", "TRM was created on DATE by Presidential Decree no . DATE , which provided :", "ORG is liquidated .", "ORG GPE ' is created .", "The administration of ORG GPE ' will be exercised by the President of the Company while the coordination of its activity will be carried out by ORG . ”", "TRM 's Statute was amended by ORG No . CARDINAL of DATE on the Statute of the State Company “ GPE ” . This read :", "The ORG is a public audiovisual institution . The creative and editorial activity of the Company shall be protected by law from interference by the public authorities and pressure from political parties .", "' FAC shall have the status of ORG .", "The founder of the Company is the Government , in the name of ORG . The activity of the Company shall be conducted by the ORG through ORG .", "The Company shall have the following objectives :", "To provide truthful and objective information about the socio - political , economic and cultural life of the country and the external relations of the ORG ;", "To promote the interests of all strata of society , to propagate the values of peace and humanism , democratic values and respect for human rights ;", "To create , accumulate , preserve and promote cultural and artistic values .", "The creative and editorial activity of the Company shall be independent . Television and radio programmes shall be protected by law from interference by the public authorities and influence and pressure from any political party .", "The Company shall be obliged :", "To present in an objective and impartial manner the realities of national and international socio - political life ; to ensure the people 's right to information ; to promote the authentic values of the national culture , of the culture of the national minorities and of universal culture ;", "To ensure freedom of expression , freedom of thought and freedom of circulation of information ;", "To ensure respect for the rights of journalists in accordance with the national legislation and with international practice ; to ensure the presence of persons with different political and confessional views within its broadcasts ;", "To give priority to and broadcast free of charge the press releases of ORG and President of GPE ...", "The research and creation sub - units of the Company shall ensure a journalist 's right to an opinion and to his or her own position . The Company can not oblige a journalist to promote any ideas which are in contradiction with his or her moral values .", "The programmes broadcast by the Company must not propagate war , aggression , ethnic , racial , class or religious hatred , violent anti - State actions , terrorism , public disobedience , territorial separatism or any ideas and opinions contrary to moral standards .", "The President of the Company , the General Director of Television and the General Director of Radio shall be appointed by ORG , on the proposal of ORG or on its own initiative . The term of office shall be DATE . The Vice - President of the Company shall be appointed by ORG , on the proposal of the President of the Company for DATE .", "The President of the Company shall :", "ORG ; ...", "Employ and dismiss the employees of the Company ;", "Supervise the activity of ORG ; ...", "ORG is a collegial and consultative administrative body of the Company . It shall be composed of CARDINAL members , who shall act in accordance with ORG .", "The President of the Company shall automatically be a member of ORG . The other members shall be the representatives of the Government and of ORG . ”", "On DATE ORG adopted Resolution CARDINAL(CARDINAL ) on “ The functioning of democratic institutions in GPE ” , which stated , inter alia :", "“ CARDINAL . ORG expresses grave concern about the events which have been occurring in GPE since DATE and its anxiety about the continuous worsening and radicalisation of the political climate there , which is a threat to the country 's stability .", "Demonstrations organised by ORG ( ORG ) have been going on now in the town centre of GPE for CARDINAL - and - a - half months . ...", "The ORG notes that the scale of the protest movement by journalists and staff of ORG underlines the need to carry out reforms quickly , so as to fully guarantee freedom of expression and promote a public broadcasting service . It urges the authorities to end the practice of censorship of television programmes and to afford all opposition political parties , both inside and outside parliament , generous access to discussion programmes . It asks ORG and ORG to embark without delay on work to transform ORG into an independent public corporation . ...", "The ORG expects the NORP political forces to pursue genuine , constructive dialogue and to agree on a compromise which should include the following elements : ...", "iv . the revision of radio / television legislation and amendment of the status of ORG to make it an independent public corporation ; an immediate start of work by the relevant parliamentary committee ; the possible resumption of consideration of the draft legislation examined by the previous legislature ; ... [ completion of work ] by the end of the current parliamentary LAW , on DATE ;", "The ORG calls upon ORG and ORG to take the above measures without delay . ...", "The ORG calls upon the NORP authorities to co - operate fully with ORG and its bodies , and in particular : ...", "ii . to submit for ORG expert appraisal the future bills for the reform broadcasting and transform the state company ORG into an independent public service corporation ; ... ”", "On DATE ORG adopted a recommendation , No . CARDINAL(CARDINAL ) on “ The functioning of the democratic institutions in GPE ” , containing inter alia the following request :", "“ CARDINAL . The ORG also asks ORG to step up co - operation with the GPE authorities concerning :", "i. NORP speedy expert appraisal of coming bills to reform broadcasting and transform ORG into an independent public service corporation ; ... ”", "Following correspondence between the NORP authorities and the Secretary General of ORG , an expert , PERSON , Head of ORG at NORP Television , carried out a written analysis of the ORG 's draft law on public service broadcasting in GPE . In his first report , of DATE , ( ATCM ( DATE ) CARDINAL ) , PERSON commented , inter alia :", "“ [ The ORG 's draft ] ... provides for many forms of direct political interference into [ the broadcasting organisation 's ] activities :", "• Obligation in Article PERSON ) and Article CARDINAL ) to disseminate ' communications ORG public , reçues des autorités publiques ' and to provide air time , on request , to public authorities and organs of public administration , for the transmission of such announcements , without any limits concerning the content , nature and reasons for their transmission .", "• Appointment of members of ORG directly by ORG , the President and government - Art . CARDINAL ) .", "• Possibility of their dismissal at any time by the body which appointed them , in case of ' a violation of ORG , i.e. practically under any pretext – Art . CARDINAL(CARDINAL ) .", "• The requirement that the rules of procedure of ORG must be approved by ORG . CARDINAL ) .", "• Appointment of Director General directly by ORG , which can also dismiss him / her on a motion from ORG . CARDINAL .", "• The right of a special parliamentary committee to demand written explanation of any action by the public broadcaster which in the ORG 's opinion violates the law , and then to require , together with ORG , that such violations be redressed .", "These proposed provisions can hardly be accepted as being in line with Recommendation No . R ( CARDINAL)CARDINAL of ORG on the Guarantee of ORG or with LAW . The provision of LAW that freedom of speech should be exercised ' without interference by a public authority ' refers in particular to interferences imposed by the ORG or a public authority or official . Moreover , ORG has recognised that in certain circumstances the LAW may impose a positive obligation on a state to prevent , regulate or limit interferences by a private person or body with freedom of expression . Genuine , effective exercise of the freedom of expression and information does not depend merely on the ORG 's duty not to interfere , but may also require positive measures to help to stimulate or to protect and defend the freedom of expression . It is expected that the member states of ORG are under the obligation to take the necessary measures to protect and to promote the freedom of expression exercised by mass media and journalists . The provisions listed above can not be reconciled with these obligations , because they concentrate on creating positive reasons for political authorities to intervene into the operation of the public service broadcaster in ways which create a real possibility of limiting its freedom ” .", "Mr PERSON 's second analysis , dated DATE ( ATCM ( DATE ) CARDINAL ) , was concerned primarily with the proposals for the composition of ORG 's governing body , the “ ORG ” . He referred to the guideline set out in the Appendix to ORG R ( CARDINAL ) CARDINAL ( see paragraph CARDINAL above ) , that the rules governing the status and membership of supervisory bodies of public service broadcasting organisations should be drafted so as to avoid placing the bodies at risk of political or other interference and observed that there were CARDINAL possible models for the composition and manner of appointment of members of bodies like ORG :", "“ • Under the first , identified institutions and groups in the civil society are authorized to delegate a representative of their own choice to ORG , for a fixed period ( e.g. DATE ) . Examples of such institutions and groups are churches , universities , theatres , authors , journalists , musicians , farmers , women , young people , sports federations , environmentalists , employers , trade unions , etc .", "• Under the second , a fixed number of members ( e.g. DATE twelve ) is appointed by ORG or by several public institutions ( e.g. CARDINAL by ORG , CARDINAL by the government , CARDINAL by the President ) . Since the members of ORG are to represent the interests of the civil society , great pains must be taken to ensure that they do not in reality represent the political views and interests of those who appointed them ...", "In the socio - political conditions of a country in transition , the second model contains a potential contradiction : can individuals appointed by ORG , or by ORG , the government and the President , really represent civil society , or the interests of society in general ? In conditions of extreme politicisation of public life , can political appointees really be relied upon NOT to represent the political views and interests of those who appointed them ?", "Because the risk that they will do precisely that is very high , preference should , we believe , be given to the first model .", "Of course , despite all the legal precautions , no - one can control who individual members of the ORG will want to listen to and whose views they will want to follow . For this reason , it is important that the composition of the ORG be as pluralistic as possible , so that potential influences which the ORG members may be under will be as diversified as possible . ... ”", "On DATE , with a view to transforming ORG into a public service broadcasting organisation , ORG adopted PERSON No . CARDINAL-XV ORG on ORG . The PERSON , which did not take into account ORG expert 's recommendations ( see paragraphs CARDINAL - CARDINAL above ) , provided as follows :", "The national public audiovisual institution – the ' ORG Company - is hereby created . It shall be an institution with legal personality and with functional autonomy and editorial independence which shall ensure the right to the freedom to impart truthful and objective information throughout the territory of GPE ...", "( CARDINAL ) ORG must ensure a large diversity of broadcasts covering the interests of different social , national , religious and political categories .", "( CARDINAL ) The Company must ensure respect for the principle of objectivity and impartiality within its news and documentary broadcasts .", "( CARDINAL ) ORG is an autonomous body which shall be responsible for ensuring observance of the right of the people and of society to receive truthful , complete and objective information . It shall be charged with monitoring the ORG 's observance of law and of its statute .", "( CARDINAL ) The Observers ' Council shall be composed of CARDINAL members who are well - known persons from the cultural , scientific , educational , media and other spheres . Their term of office shall be DATE and they shall be appointed by :", "( a ) Parliament – CARDINAL members ( CARDINAL from the opposition ) ... ;", "( b ) The President of GPE – CARDINAL members ;", "( c ) The Government – CARDINAL members ;", "( d ) The High Council of the Judiciary – CARDINAL member ;", "( e ) NORP The creative staff of the Company – CARDINAL member ;", "( f ) NORP The national minorities ' organisations CARDINAL members ;", "( g ) The Confederation of the Trade Unions of GPE – CARDINAL member ;", "( h ) The Confederation of the Free Trade Unions ' ORG ' – one member ;", "( i ) The Creative Unions ( ORG , ORG , ORG , ORG , ORG ) – CARDINAL member ;", "( j ) The media organisations ( ORG , ORG , ORG , ORG , ORG , the GPE - media ORG ) – CARDINAL member ;", "( k ) The Association of Veterans – CARDINAL member .", "The ORG shall :", "Appoint the President of the Company , the Vice - President , ORG and ORG Director of Radio ;", "Confirm the composition of ORG ;", "Supervising the Company 's activity", "( CARDINAL ) Supervision of the ORG 's activity shall be exercised by ORG .", "( CARDINAL ) If ORG is not discharging its supervisory functions properly , ORG may , by way of ORG , demand from any organ of the ORG written information about the actions or omissions which in ORG 's view breach the present law . ORG shall be composed of representatives of all the parliamentary factions , which shall be represented proportionally to the representation of their parties in ORG .", "...", "( CARDINAL ) ORG , together with ORG , may order the Company to take adequate measures to eliminate the breaches of law found .", "( CARDINAL ) ORG shall have the right to challenge in the courts , in accordance with the legislation in force , the legality of the orders received ...", "...", "( CARDINAL ) Any measure taken under the present Article shall not infringe the ORG 's freedom of information and the right to freedom of expression . ”", "On DATE ORG adopted a Reply to ORG Recommendation CARDINAL ( see paragraph CARDINAL above ) in which it stated , inter alia , that the status of ORG remained a subject of concern . Although PERSON No . CARDINAL-XV represented progress , it provided for many forms of direct political interference with ORG 's activities , as PERSON ORG had pointed out in his analysis . ORG stressed that the provisions were not in line with the standards of ORG and risked being in contradiction with LAW .", "On DATE ORG adopted a further resolution on the functioning of democratic institutions in GPE , no . CARDINAL ( DATE ) , in which it invited the GPE authorities to “ revise , during DATE , the law on the national public broadcasting company GPE , by genuinely involving civil society , associations representing the media and the political opposition in discussion , and by taking on board the recommendations made by ORG experts . In particular , it requested that “ revision of the provisions on the composition , appointment and powers of the observers ' council be the subject of the widest possible consultation ... ”", "DATE . The Government subsequently decided that Law No . CARDINAL-XV had not been sufficient to complete the transformation of ORG and an amending bill was drafted , which , in addition to a number of minor amendments , contained a proposal to liquidate the existing FAC and establish a new organisation under the same name .", "Mr PERSON published an analysis of the draft amending law on DATE ( ATCM(CARDINAL)CARDINAL ) in which he made the following observations :", "“ ... The law now in force contains only basic provisions concerning the status of the company as a public service broadcaster and describing its institutional arrangements . Therefore , it was clear that it would have to be amended and extended to create a full and appropriate legal framework for public service broadcasting in GPE - in line with Resolution No . CARDINAL ' ORG adopted by the CARDINALth European Ministerial Conference on Mass Media Policy ( Prague , DATE ) ; Recommendation No . R(CARDINAL)CARDINAL of ORG , and Recommendation Rec(CARDINAL)CARDINAL of ORG .", "The question , therefore , arises as to whether this proposed amendment meets that goal .", "CONCLUSION", "Apart from the proposal to liquidate the existing FAC and to establish a new organisation under the same name in its place , the amendments concern relatively minor matters . ...", "Accordingly , these amendments can not be seen as completing the effort fully to regulate GPE , safeguard its proper operation , independence , autonomy and financing , and create legal certainty for the company . They change little of real substance in the way FAC operates as a public service broadcaster . ...", "Under the amendments , the plan is to ( i ) liquidate ORG Teleradio - Moldova ; ( ii ) to dismiss its entire personnel ; and ( iii ) to deprive it of all the assets ( which assets would then be transferred to the new ORG Teleradio - Moldova is to be the subject of a separate government decision and there is no deadline by which this decision is to be taken ) . It is not clear whether this means that GPE should suspend its operations and stop broadcasting in the interim period or not . This is certainly suggested by the provision that its entire staff is to be dismissed , but perhaps there is a plan to continue broadcasting nonetheless .", "The execution of this plan would be very disruptive for ORG and its audiences . At the same time , it is not clear what substantive purpose this would serve . As we will argue below , there is nothing in the draft amendments which makes this indispensable from a legal point of view . Moreover , it appears that the liquidation will not be complete , since there is no provision for the appointment of a new ORG , nor of a new President . If the governing bodies of the organisation remain , there is no real liquidation , only mass dismissal of the staff under the guise of liquidation . ... ”", "The amending law was nonetheless adopted by ORG on CARDINAL DATE . ORG was registered with ORG as a Public Company on DATE and started to broadcast under its new statute on DATE .", "On DATE ORG adopted LAW ( DATE ) on the functioning of the democratic institutions in GPE , in which it made the following observations , among others :", "“ CARDINAL . ... However , genuine involvement of civil society requires a pluralist and dynamic media sector , particularly with regard to television . The conditions must also be created for a genuinely independent and professional public broadcasting service .", "...", "The ORG further urges the GPE authorities , with regard to the protection of human rights , to ...", "CARDINAL.CARDINAL.CARDINAL . revise legislation regarding public service broadcasting ( both national and local ) and the Audio - visual sector in general ;", "CARDINAL.CARDINAL.CARDINAL . NORP pursue the transformation of GPE into a genuine public service broadcaster , as defined in FAC DATE ( DATE ) on public service broadcasting ; ... ”", "In DATE the Special Representative of the Secretary General of the Council of Europe in GPE made the following report on the media in GPE :", "“ The Constitution of the Republic of Moldova guarantees freedom of expression and freedom of the press . Yet the situation in the media in GPE is CARDINAL of the fields of major concern for a number of embassies in GPE as well as NGOs . During DATE pressure of the authorities over the independent mass media means increased , in parallel with support of state publications .", "The situation in the electronic media is very important having in mind that in rural areas , where CARDINAL of the population of GPE lives , access to information is very limited . Newsstands are practically non - existent , and written press gets there with delays up to DATE . The radio is the main source of information .", "The opposition is not adequately represented on the air . Dismissals of journalists are becoming more frequent .", "• One of the spectacular examples of censorship in ORG was the banning of the transmission of the popular live talk - show Buna Seara CARDINAL DATE to which the leaders of parliamentary factions ORG , ORG and PERSON , SRSG and ORG of ORG had been invited . TIME the beginning of the program SRSG was officially informed by ORG Chairman PERSON that it was not going on air because the majority leader had decided not to attend .", "• There is a common agreement between the political forces that the TV channel GPE CARDINAL has to transmit TIME of the meetings of the Permanent round table without editing . This obligation was not honoured during the DATE meeting of the table and the explanation was that the appearance in TIME DATE is enough for DATE . The report that went on the news DATE delicately avoided most statements containing criticism towards the authorities .", "• ' The Hour of the Opposition ' itself , which looks like monologue of the opposition , does not seem to be contributing much to the dialogue with the majority . What we need is real debate . ... ”", "The Organization for Security and Co - operation in LOC ( OSCE ) 's Representative on Freedom of the ORG made his second visit to GPE from DATE , at the invitation of the Government . The purpose of the trip was to assess the current state of media freedom in the country and to provide the authorities with recommendations . The Representative met with government officials , parliamentarians , journalists , and representatives of non - governmental organisations . On DATE he published his “ Observations and recommendations ” , which stated inter alia :", "“ Positive developments – pluralism ...", "There are a number of estimable developments in the situation of the NORP media .", "Overall , media pluralism is highly developed in GPE , both in terms of quantity of media outlets and of different views that are represented ( albeit diversity on both counts is more present in the print press than in the broadcast media ) . Politicians of all ranks are regularly criticised in the media ; independent TV and radio stations are very outspoken in their comments on the authorities . There is also an open debate regarding the development of the media itself ; this debate was described by the Foreign Minister as ' transparent . ' ...", "GPE was also CARDINAL of the first countries in the region to transform its state broadcaster into a public service one .", "Nevertheless , most interlocutors agreed that there were several outstanding media problems that needed to be dealt with in the foreseeable future . Some of the shortcomings , as parliamentarian opposition leader PERSON put it ' were the result of a growing democracy . ' In his view the LOC needed to get more involved in media matters . The Foreign Minister also stated that ' GPE has some shortcomings in the media field , but these are not intentional . Other NORP states also have shortcomings . We do not want to take a wrong way and that is why we are grateful for any recommendations coming from the LOC , and other international organisations . '", "The purpose of this report is to offer such recommendations based on observations made during the visit .", "ORG", "There can be no true pluralism when there are no competing domestic nationwide channels . In this situation , a transparent tender is needed for another nationwide frequency .", "Currently , there are CARDINAL nation - wide broadcasters in GPE , and CARDINAL of them – the public company ORG ( TRM ) DATE is a NORP channel in terms of content . The other CARDINAL channels re - broadcast programming from neighbouring countries : GPE and GPE .", "It seems to be clear that a fourth nationwide frequency exists ; however the issuing of this frequency was stopped by the licensing authority in DATE . The tender for the third nationwide channel – the CARDINAL re - broadcasting a NORP network – was announced on DATE ; however , a tender for the fourth has not been re - announced . For additional information on problems of transparency in licensing , see the chapter on ORG .", "The Situation around TRM", "Too much Government , too few other voices", "ORG , although legally transformed from state broadcaster into an autonomous public service institution , in reality continues to tilt towards the Government . Most of the political programming is reported to be news on and by the ruling party . In this situation , when ORG is the only domestic nationwide broadcaster , balanced coverage of political events is even more important . TRM still has to live up to its commitments as a public service broadcaster .", "No content monitoring is conducted by ORG itself despite the fact that it is prescribed by LAW on ORG GPE . The explanation given by ORG management was a lack of resources to produce the needed tapes . But in fact it was ORG ( ORG ) which at least should have tried to enforce such monitoring . The ORG , explaining their lack of concern for monitoring , said that in the initial period when ORG has only started its public way of functioning , it would have been misleading to produce any monitoring .", "As a result , only the NGO community did such monitoring . Their findings were heavily disputed by the ORG management , the ORG , and ruling party officials . It is true that the NGO monitoring was done on a quantitative basis . The ' stopwatch ' method is unquestionably crude , and can not reveal the nuances of programming . Still , this method is good enough , and the results were overwhelming enough to show that the news coverage at ORG since the transformation was disproportionately about the Government and by the Government .", "ORG", "Both ORG management and ORG that represents journalists who were not hired as part of the transformation process from state to public broadcaster should agree on a compromise through negotiations .", "The OSCE Representative and his staff had several meetings with ORG management and with representatives of former ORG journalists who were not re - hired after ORG was officially transformed from a state to a public broadcaster . PERSON Ivanko observed the work of ORG of GPE that was established to deal with this labour dispute .", "Background", "In DATE strikes and protests against alleged censorship at TRM supported by CARDINAL ORG employees started a debate in GPE on the need to transform FAC into a public broadcaster . The required legal framework was established under ORG guidance .", "The PERSON on ORG Teleradio GPE was adopted by parliament on DATE . The PERSON was revised on DATE after it was criticised by ORG . On DATE the law was changed again ; this time with the aim of liquidating the previous state broadcaster . This meant that the newly established public company would not be under any obligation to hire all of the staff from the state broadcaster . According to several sources , there was fear among ORG staff that the selection process would make redundant those employees who had been most active during the DATE protests and who had campaigned for the transformation of TRM into an independent public broadcaster .", "A selection commission formed by CARDINAL members proposed by ORG , CARDINAL members proposed by ORG and CARDINAL member elected by the staff of ORG was established on DATE . The commission selected new staff by DATE .", "CARDINAL persons were offered contracts , CARDINAL signed them . CARDINAL positions are still vacant . The selection commission therefore has not concluded its work . CARDINAL staff members have been laid off .", "After the selection results for the news departments had been announced on DATE , discontent among ORG employees about the way the process was conducted turned into public protests . On DATE a group of ORG employees founded ORG and occupied the room in which the selection commission held its meetings . In response , ORG management suspended the contracts of CARDINAL employees and on DATE the police removed the protestors from the building .", "These demonstrations , at CARDINAL point involved CARDINAL of people , started in protest against the results of the selection process . The main demand was therefore to rerun the process . This demand was later modified to ' returning to the situation before the selection procedure started . ' The modified demand could be theoretically satisfied without a re - run by offering contracts to all the CARDINAL laid off staff .", "All interlocutors agreed that the situation around ORG was the most pressing media issue in the country . All seemed to agree that the only way to proceed was through a negotiating process . As Foreign Minister PERSON put it : ' We want the transformation of TRM to be done in a democratic way . ' Nevertheless , several questions should be raised .", "The whole selection process seems to be marred by lack of understanding of the demands of such a process . Although it is clear that some of the staff would probably have to be made redundant , the selection criteria were not clearly defined , and the selection itself was not transparent . Charges of political bias can not be refuted given the lack of transparency in the selection process .", "The attitude of the ORG management , at least initially , was not constructive and led to massive protests and to a stalemate that is still not resolved .", "On the other hand , ORG , formed originally to defend the rights of the laid off staff , started adding political demands to their original labour ones .", "In this situation , the OSCE Representative , together with the Head of the OSCE Mission in GPE and the Special representative of the Secretary General of ORG suggested to the above - mentioned ORG that a new selection commission should be created according to the following formula :", "- CARDINAL members of the selection commission to be appointed by the administration of GPE ;", "- CARDINAL members of the commission to be appointed by ORG ;", "- CARDINAL members of the commission to be appointed by consensus by ORG . Alternatively , CARDINAL of these CARDINAL members could be a foreign expert , seconded by the LOC or ORG .", "At time of writing , this issue is still pending . ORG at FAC held CARDINAL meetings in DATE . On both sessions the commission discussed the joint proposal on a new selection commission , put forward on DATE by ORG , ORG . The Commission failed to come to a decision concerning this joint proposal . Referring to a lack of progress in the work of the Commission and having accused ORG management of ' simulating a dialogue ' the representatives of the protesting journalists withdrew from ORG on DATE .", "ORG [ referred to elsewhere in this judgment as ' ORG ' : see paragraph CARDINAL above ]", "The current ORG ( ORG ) , although in theory its majority is formed by civil society , does not represent the whole spectrum of views prevalent in society , and in fact allows for political CARDINAL - sidedness . The current law should be changed to allow for a different composition of the ORG .", "Several opposition parliamentarians , journalists and NGOs complained about the current set - up of the ORG which includes CARDINAL representatives from ORG ( CARDINAL from the opposition ) , CARDINAL from Government , CARDINAL appointed by the President , and CARDINAL from different organisations . However , the President , the ORG and ORG are controlled by CARDINAL party , and so are the majority of civil organisations represented on the board .", "The leader of the ORG faction PERSON acknowledged that not all civil society was represented on the board , but only ' the main civic organisations ' which leaves open the question of who and , more importantly , how defines an organisation as being ' main . ' In the highly politicised climate in GPE a highly politicised ORG is seen as undermining the credibility of the public broadcaster . CARDINAL of the proposals coming from opposition leader Braghis would provide for a CARDINAL member ORG , CARDINAL people from the ruling party , CARDINAL from the opposition , and the board working strictly on a consensus basis .", "Although this idea may sound appealing it might also lead to a stalemate where the board would not be able to agree on anything leaving ORG management without any supervisory control .", "The PERSON and ORG should be encouraged to come up with a proposal on the structure of the ORG that would have the approval of all political sides in GPE . Several proposals , especially the one prepared by ORG ( PERSON ) , should be carefully analysed .", "The Audio - visual Co - ordination ORG", "Tenders for frequency allocations are offered at very short notice , and do not provide enough time for potential applicants to prepare all the necessary documents . The composition of the ORG does not guarantee its objectivity . Also , there is a lack of transparency in the decision - making process regarding the allocation of frequencies .", "Complaints about political bias in frequency allocation could not be substantiated . But when looking into these complaints , the Representative established that the process allows for subjectivity when evaluating and voting on tenders for frequency allocation .", "Broadcasting licenses are allocated by the ORG . In a system that can only be described as ' CARDINAL - headed ' , the actual frequencies to be used by the licensee are provided to the ORG by ORG . As CARDINAL senior official said : ' We do not know when these frequencies become available . '", "The ORG , which consists of CARDINAL people , is appointed respectively by the Government , the President , and the ORG . In a situation like DATE 's , when the majority in all the executive and legislative branches are controlled by CARDINAL party , this system leads to total political control of the ORG . Several interlocutors complained that they did not have any trust in the ORG 's objectivity when issuing licenses for channels .", "It should also be noted that the tender for the very important fourth nationwide channel was not re - issued after DATE when there was absolutely no movement on this matter . On the other hand , the tender for the third nationwide network , the license of which was running out , had been issued on DATE notice , and was only announced in CARDINAL newspapers in a small print advertisement .", "To ensure the independence of the ORG , the election procedure should not be politically oriented , and should focus on employing as members of the ORG individuals who are reputable experts in the broadcasting field .", "The method of frequency allocation has to be changed . CARDINAL agency should be in charge of both establishing and allocating the frequencies . This would correct the current ' CARDINAL - headed ' system when the ORG is at the mercy of the Ministry , not knowing when ( and why ) a frequency might be offered for tender . ...", "Recommendations", "...", "· There can be no true pluralism when there are no competing domestic nation - wide channels . In this situation , a transparent tender is needed for another nation - wide frequency .", "· PERSON , although legally has been transformed from state broadcaster into an autonomous public service institution , in reality continues to tilt towards the Government . Most of the political programming is reported to be news on and by the ruling party . In this situation , when ORG is the only domestic nationwide broadcaster , balanced coverage of political events is even more important . TRM still has to live up to its commitments as a public service broadcaster .", "· Both ORG management and ORG that represents journalists who were not hired as part of the transformation process from state to public broadcaster should agree on a compromise through negotiations .", "· A new ORG selection commission should be created .", "· The current ORG ( ORG ) , although in theory its majority is formed by civil society , does not represent the whole spectrum of views prevalent in society , and in fact allows for political CARDINAL - sidedness . The current law should be changed to allow for a different composition of the ORG .", "· Tenders for frequency allocations are offered at very short notice , and do not provide enough time for potential applicants to prepare all the necessary documents . The composition of the ORG does not guarantee its objectivity . Also , there is a lack of transparency in the decision process regarding the allocation of frequencies . ... ”", "At around the same time the OSCE and ORG jointly published the following “ Benchmarks for the Operation of Public Broadcasters in GPE ” :", "“ CARDINAL . Public Television and Radio should", "• give a complete , accurate , impartial , balanced and objective overview over political , economic , social and cultural developments in GPE ;", "• provide a comprehensive picture over the real situation in the country ;", "• encourage viewers to form their own individual opinion in a free manner ;", "• reflect cultural and regional diversity ;", "• respect gender equity ;", "• serve all groups of society , including those neglected by commercial broadcasters , such as ethnic minorities and others ;", "• respect the dignity of the human being and promote the values commonly shared by ORG and the LOC , especially with respect to democracy , pluralism , tolerance and respect for human rights and freedoms .", "Factual programs shall be impartial , this means they shall be fair , accurate and shall maintain a proper respect for truth . A program may choose to explore any subject at any point on the spectrum of debate , as long as there are good editorial reasons for doing so . It may choose to test or report CARDINAL side of a particular argument . However , it must do so with fairness and integrity . It should ensure that opposing views are not misrepresented .", "News reports have to be rigorously sourced and verified . Information should be broadcast as a fact only if it is verified by CARDINAL independent sources . Acceptable exceptions to the double - source requirement are fact directly confirmed by a reporter of the public broadcaster or significant news drawn from official announcements of a nation or an organization . When a secondary source offers exclusive significant news which can not be verified by using a second source , the information should be attributed to the originating agency by name .", "News should be presented with due accuracy and impartiality . Reporting should be dispassionate , wide - ranging and well - informed . It should present a comprehensive description of events , reporting an issue in a reliable and unbiased way . The main differing views should be given due weight in the period of which the controversy is active .", "NORP In case a number of programs are clearly interlinked and form de facto a series on reports of related issues , impartiality can be achieved over the entire series . Editorial programs , for example , should give over one month approximate equal time to representatives of the government and the parliamentary majority on the one hand and the opposition on the other hand on related issues . In case a number of programs are broadcast under the same title , but deal with separate issues , impartiality has to be reached within every individual program .", "Due impartiality is of special importance in major matters of controversy . It should be especially insured that a full range of significant views and perspectives are heard during the period in which the controversy is active .", "NORP The public broadcaster should provide live coverage of all or parts of parliamentary debates in which issues of extraordinary importance are discussed . Coverage of debates in parliament has to be balanced . Therefore live coverage of such debates should not be interrupted before or during the intervention of opposition speakers and should not be ended before the leading opposition speakers have replied to the speeches of government officials or representatives of the majority faction .", "News should include regular reports on debates in parliament . Reports on parliamentary debates should give equal air time to the arguments of the government and the majority faction on the one hand and the opposition on the other hand .", "Reports on activities of the president and the government should include or should be followed by statements and comments by representatives of the opposition and representatives of institutions or organizations directly affected by these activities .", "Whenever a program voices strong criticism or charges directed against an individual or an organization , with iniquity or incompetence or when charges or accusations made by third persons are reported in the program , those criticized should be given a fair opportunity to respond . As a rule , the response or balancing information should be included in the first use of a news item or feature containing the material . If the response or balancing information can not be obtained by program deadline , or the subject of the charge declines to comment , that will be made clear in the public broadcaster 's account and the response or balancing information will be broadcast as soon as it is available . In particular , when a government official or member of the parliamentary majority directly criticizes an individual or an organization , the reaction of the individual or organization criticized should be included in the report or should follow immediately . The time provided for reply should as a rule equal the time of the critic .", "NORP In case the President , the Speaker of ORG or the Prime Minister give an interview longer than TIME or a speech on public TV or Radio the leaders of the opposition parliamentary factions should be given within TIME the possibility to comment on the remarks made on public TV or radio respectively .", "Representatives of non - governmental organizations should be given access to public TV and Radio to voice their opinion on developments or government actions connected to their field of activity .", "Live talk shows on political , social , economic and cultural issues should form a regular part of the programs of public TV and Radio . Invited participants should always reflect a balanced selection of representatives from government , parliament , political parties , civil society , business community , churches or international organizations , depending on the nature of the topic . The refusal of an organization or an individual to take part in a program should not be allowed to act as a veto . The reasons for the absence of an organization or an individual should be explained and as far as possible a fair representation of the views of the missing contributor based on what is already known should be provided .", "During election campaigns the public media should provide adequate opportunity , on an equitable and non - discriminatory basis , for election contestants to inform the public about their candidacies and political programs . It should provide active media coverage of the preparation and conduct of the elections and should provide voters with unbiased information and education .", "Serious factual error should be admitted , clearly , frankly and without delay .", "Facts should not only be got right , but also language should be fair . Exaggerations should be avoided and language should not be used inadvertently so as to suggest value judgments , commitment or lack of objectivity .", "The use of unattributed pejorative terms or labels to describe persons or organizations should be avoided at all times . Only when the individuals and groups use those labels to describe themselves or their activities an exception might be made .", "Commentary should always respect the truth and should never be used to give the audience a dishonest impression of events .", "NORP In news and other factual programs events should neither be fabricated , distorted or dramatized .", "Surreptitious recording should only be used as an investigative tool to explore matters which raise issues of serious anti - social or criminal behavior where there is reasonable prior evidence of such a behavior . No ' fishing expeditions ' should be undertaken . Surreptitious recording might be done also for purely entertainment purposes , but in this case the material shall be used only when the consent of the individual recorded has been obtained afterwards . As a method of social research surreptitious recording might be used only if there is no other method that could reasonably capture the behavior under scrutiny and only if the identities of the individual concerned are disguised by voice - over or blurring . Material obtained by other sources should be used only if consistent with the guidelines mentioned above .", "When portraying social groups , stereotypes should be avoided . Where prejudice and disadvantage exists they have to be reported and reflected , but nothing should be done to perpetuate them . Non - sexist language shall be used whenever possible .", "The state audiovisual archives should be regarded as repositories of the nation 's audiovisual heritage to be used by public service broadcasters for the general benefit .", "The government and public bodies should never abuse their custody over public finances to try to influence the content of broadcasts ; the placement of public advertising should be based on market considerations .", "Editorial independence should be guaranteed . Neither political nor commercial considerations should unduly influence the content of a broadcast program . On the editorial independence , a common code of conduct should be reached between the staff and the board of directors on basic journalistic principles . This common code of conduct shall at least contain the following principles :", "• standing up for human rights ;", "• standing up for the fundamental democratic rights , the parliamentary system", "and international understanding , as laid down in LAW ;", "• fighting any nationalist or racial discrimination .", "The selection of staff for the public broadcaster should be based on a transparent , non - discriminatory process without regard to gender , age or ethnic or social origin . The selection should based on the merit principle , which entails the employment of the most qualified person for any given job and which provides for non - selected applicants the right to appeal against this decision and to ask for a review against the specifications for the position . ”", "On DATE ORG published a “ NORP Neighbourhood Policy Country Report ” on GPE ( ORG ( DATE ) CARDINAL ) , which made a number of findings regarding , inter alia , democracy and human rights in the country . The report noted the concern of OSCE observers monitoring the DATE local elections “ about the clear bias in favour of the incumbent authorities on ORG ” . The report continued :", "“ GPE has an active and independent media . However , recent legislation and drafts ( the DATE amendments to LAW and a recent draft law on the restructuring of the public broadcaster ) have raised concern notably on the independence of journalists . In DATE , the ORG and ORG jointly issued a recommendation on how the public broadcaster should be structured .", "A number of recent developments have underlined these concerns : ... problems with registration for CARDINAL local radios , a statement by the chairman of ORG about the reported imposition by ORG of the programme ' the hour of the government ' and his subsequent dismissal , and high fines imposed on local newspapers and opposition leaders for slander . These developments have been highlighted as issues of concern by ORG and PERSON ... ”", "DATE . ORG ( ORG ) is a non - governmental organization based in GPE with a mission to support professional journalism in GPE and to contribute to the consolidation of an independent and impartial press . It was established in DATE as an ORG and became independent in DATE . It is funded by , inter alia , ORG .", "The ORG monitored ORG programming DATE and DATE . According to its monitoring report for DATE , no representative from ORG , which was at the time one of the CARDINAL parliamentary opposition parties , appeared on ORG television programmes with a political subject during DATE and another parliamentary opposition party , “ GPE Democrată ” , appeared only once for TIME . In contrast , the ruling ORG appeared CARDINAL times for a total duration of TIME . Similar patterns were reported in DATE , DATE and DATE . In its report published in DATE , the ORG found that , on television , the Government and their representatives were mentioned on average CARDINAL times a day while the opposition was referred to on average twice a day . On ORG 's radio programmes , the Government was mentioned on average CARDINAL times a day and the opposition CARDINAL times DATE .", "In a report entitled “ State to Public : ORG in GPE , GPE and GPE ? ” ( DATE ) , LAW , an international non - governmental organisation based in GPE which works on issues connected with freedom of expression , found as follows ( footnotes omitted ) :", "“ CARDINAL . Overview", "GPE was the first country of the ORG to embark on a process towards the establishment of ORG [ public service broadcasting ] . It is also currently the only one of the CARDINAL countries to have transformed its ORG broadcasting company , ORG ( TRM ) , into a ORG [ public service broadcasting organisation ] . Yet while ORG exists in theory , in practice the new broadcasting company remains only nominally independent from government control , and output continues to be heavily biased in favour of the existing regime . Overall , it fails to provide viewers and listeners with accurate and objective information and a plurality of views and opinions . The consolidation of a genuine ORG structure will depend on the ability and will of the authorities to fully implement the newly - adopted provisions , as well as on the success of civil society 's campaigning efforts .", "In DATE , ORG adopted the Law on Amending and Supplementing Law No.CARDINAL-XV on ORG TeleRadio - Moldova ( LAW ) , which modified a previous law passed in DATE ( ORG ) following recommendations from ORG . A later controversial amendment to the PERSON , adopted in DATE , provided for the liquidation of ORG , enabling its reincarnation as ORG , as well as the replacement of its entire staff ( LAW ) .", "For a prolonged period of time it remained unclear how the re - staffing would be carried out , and generally journalists and human rights organisations were not provided with essential information as to the mechanisms that would be employed to implement these measures . In addition , the initial debates which led to the adoption of LAW in its first reading were held in an atmosphere of virtual secrecy . At this stage the company 's staff was utterly unaware of the fact that a law on ORG was being debated in ORG .", "Similarly , the process by which LAW was adopted did not provide for sufficient opportunity for public consultation , despite the significant public importance of a law of this nature . The draft was submitted to ORG by CARDINAL MPs on DATE , and adopted in its first reading almost immediately ; it then passed its second reading DATE . Some local NGOs and international organisations , such as ORG , acted very rapidly in providing recommendations on the draft . Other groups simply did not have the time to participate in this process .", "Despite the changes , ORG is still under the influence of the authorities . In addition , the quality of programmes has been quite low since the transformation . There is a need for additional funding , to train the employees and raise the standards of professional journalism .", "Another worrying fact is that there has been a progressive decrease in the diversity of media outlets . ' ORG , the media organisation that founded ORG , which until recently re - broadcast ORG - as well as having some programmes of its own , including NORP news - , was deprived of its licence in DATE . The licence was , instead , given to a newly - established , unknown television station , which allegedly has close links to President PERSON . The decision to deprive ORG of its licence was reached very speedily ; there was even a special edition of ORG announcing it , to avoid a wait of DATE for the decision to come into effect . This development is even more worrying as the old GPE ORT displayed virtually no criticism of the authorities , and frequently its portrayal of the authorities was positive . GPE ORG was one of the main television channels in GPE , together with ORG and private ORG . With ORG and ORG heavily pro - governmental , the new development is likely to dramatically reduce the ( already limited ) diversity of the NORP broadcast scene .", "The breakaway region of GPE in eastern GPE still does not have ORG and its ORG television is under the authorities ' control .", "The Legislation", "According to LAW , ORG is ' functionally autonomous and editorially independent ' and ensures ' in the spirit of plurality of opinions , the exercise of the right to timely , truthful and full communication of information ' . LAW lists the organisation 's objective , which includes : ensuring the free access of society to information ; reflecting objectively and fully all aspects of the social - political , economic and cultural life of the country ; and realising the right of the individual to free expression .", "The ORG also provides for the establishment of an ORG ( the ORG ) to monitor the implementation of the provisions of the law and its by - laws . According to the law , the ORG is composed of CARDINAL members chosen from “ known personalities in the areas of culture , science , education , mass media and from other representatives of civil society , appointed for a term of DATE ; CARDINAL ORG members are appointed by the President , CARDINAL by the government and CARDINAL by the ORG , with the rest appointed by ORG , the staff of ORG , trade unions , media development organisations and representatives of cultural and minority groups ( LAW ) .", "The ORG , through a special parliamentary commission ( constituted on the basis of proportional representation of the political parties ) has the right to investigate the company 's activities when the ORG fails to exercise in an appropriate manner its supervisory function .", "While de jure the ORG is independent of government control , concerns remains as to how independent it is in practice , given that a proportion of its members are chosen directly by the President and the authorities . Dependency certainly appeared to be the case when PERSON , a young businessman with little media experience but close to the ruling ORG , was appointed as Chairman of ORG by ORG in DATE .", "There has also been criticism that despite the nominal inclusion of ' representatives of civil society ' in the makeup of the ORG , civil society groups are not adequately involved in supervising the activities of ORG . The members representing trade unions and army veterans reportedly follow the governmental line , whilst those who are independent and wish to serve the public are a minority within ORG .", "Bias on TRM", "As a ORG , ORG has an obligation to provide accurate and objective news and current affairs coverage , as well as a pluralistic range of voices and opinions . This is enshrined in LAW of LAW , which states that “ [ CARDINAL news programs ... shall have an impartial , independent and truthful character . Commentary shall be separated from news . ”", "However , the monitoring of ORG 's output by various civil society organisations has revealed that , in practice , this is not the case . The gap between theory and practice appears to be due to interference of the State in the activities of ORG Government officials have reportedly been giving instructions over the telephone to ORG 's director . Allegedly the situation deteriorated in DATE , when ORG won a parliamentary majority . Journalists complained vociferously about the ORG 's lack of independence through mass demonstrations , involving QUANTITY , in DATE . In ORG others v. GPE , PERSON and other high - profile journalists submitted to ORG a case against GPE alleging violation of their right to free expression through cases of wide - spread censorship on the ORG broadcaster in DATE and DATE . Moreover , in DATE , a member of ORG stated that a great deal of pressure was regularly placed on the ORG 's members by the authorities .", "News reporting remains inadequate and is overtly biased in favour of the ruling ORG . In addition , the President appears often in the news , more than the government . The opposition is very seldom portrayed , and often in a negative manner . There is very little time dedicated to social issues . The news is often superficial : while there are frequent discussions on GPE , there are is hardly any information on issues that may portray the government in a negative light . Civil society figures also have limited access to FAC and stories often lack multiple , diverse sources . In addition , life in GPE is reflected selectively through the viewpoint of those in power .", "The situation worsens during elections campaigns . In the period leading up to local elections held on DATE , monitoring of television station ORG and ORG , which are both part of ORG , revealed that coverage was neither fair nor balanced : not only was coverage on GPE CARDINAL and ORG biased in favour of ORG , but it also attacked the non - NORP candidate standing for the post of mayor of GPE .", "A similar pattern was observed during the campaign period for parliamentary elections held on DATE , and further local elections held in DATE . During this period , opposition parties such as ORG and the ORG ' ORG criticised news coverage on ORG for being overtly biased in favour of the ruling ORG , and media monitoring revealed that news coverage of events within GPE was overwhelmingly positive ; most reports relating to the campaign focused on the achievements of ruling party officials , and were positive or neutral , while reports relating to opposition parties were on the whole negative ; and opposition candidates received far less coverage than candidates of the ruling ORG . The time allocated for debates was insufficient . The questions by some of the moderators seemed to guide the discussions in a certain direction .", "ORG ( APEL ) , in monitoring carried out DATE , noted that news reports were overwhelmingly ' rosy ' and non - conflictual , presenting a uniquely positive image of events within GPE , and with little coverage of more contentious social issues such as unemployment and poverty . Events in the capital GPE also received excessive coverage , while events in the rest of the country remained underreported .", "PERSON stated that ' professional and moral ' standards within the organisation are routinely ignored , with journalists failing to verify information provided by government sources , limiting the role that ORG can play in contributing to informed debate and critical thought .", "These findings were dismissed by PERSON , director of ORG , who accused their authors of incompetence , and suggested that they desired to profit from a negative portrayal of FAC . ORG also maintained that the limited coverage of opposition parties was due to the fact that they ' do not take part in any events , and they generally do nothing to be observed . '", "The Transformation", "Since its re - establishment as a ORG , ORG has been dealing with disputes between journalists and management , as a result of LAW DATE . Article CARDINAL of this law states that ' the government shall liquidate the ORG company ORG ' ( paragraph CARDINAL ) and that the ' employees of the ORG company ORG shall be discharged ' ( paragraph CARDINAL ) . Hence , the law aims at liquidating the ' old ' FAC and establishing a ' new ' institution , including through the replacement of staff .", "At the time of its enactment , the law was criticised by the opposition ORG and ORG , as well as by civil society groups , who have accused the government of introducing the law in order to dismiss ' uncomfortable ' journalists and replace them with loyal ones . The amendments also gave rise to complaints from company employees , trade union committees and public organisations , which considered the action to liquidate the organisation unlawful .", "Upon the announcement of the results of the re - staffing process , made on DATE , public protests were launched by ORG journalists . Violent clashes with the police occurred on CARDINAL separate occasions , on CARDINAL and DATE . ORG of ORG PACE ) linked the violence of police against protesters with the death of protester PERSON .", "On DATE , CARDINAL employees were also prevented from entering the premises of ORG . The person responsible for TIME news was suspended . He later stated that there had been an order not to broadcast the DATE 's events by the chairman of ORG . A wildlife documentary featuring elephants was reportedly broadcast in lieu of DATE .", "Journalists ' protests continued outside the ORG building and ORG from DATE through DATE . The protests were led by ORG ( ORG ) , an organisation set up to represent TRM journalists , and culminated with the submission of a case against GPE to ORG others v. GPE .", "PERSON and other ORG journalists maintained the authorities prevented them from entering the FAC premises to preclude their exercise of their right to free expression .", "The ORG employees requested an investigation of police violence towards the protesters in DATE by ORG , but were informed that the protests that started on DATE were contrary to national legislation and that the actions of the police were therefore legal . Instead , those who protested as of DATE in front of the ORG building were sued by the police for ' active participation in meetings organised without authorisation ' , under article CARDINAL(CARDINAL)(CARDINAL ) of LAW .", "Minority programmes", "LAW states that the objectives of ORG include ' to reflect the interests of all social strata and to propagate democratic values ' The law provides that a percentage of programmes should be in minority languages , although no further details on the languages in question are provided .", "ORG broadcasts programmes in NORP , PERSON , NORP , GPE , NORP , LANGUAGE , LANGUAGE and PERSON language . The division of broadcasting by language is PERCENT LANGUAGE , PERCENT NORP and PERCENT other languages . Linguistic diversity does not appear to be an issue in GPE , given the influence of LANGUAGE language and culture , which means that GPE was never insular . Minority programmes are prepared by a special department , where a number of minority representatives are also employed . Many NORP - speakers , however , believe that they effectively experience discrimination , as the majority of programmes of the NORP broadcast media as a whole are in the ( non - official ) LANGUAGE language .", "Funding", "The public broadcaster is primarily financed through ORG funds , with some revenues from advertising , although ORG has less advertising than some private channels . In the process towards the adoption of LAW in DATE , the possibility of including provisions on fees was discussed . Such provisions were incorporated in the draft law compiled by civil society . However , the President criticised the NGOs ' draft exactly for its inclusion of fees , on the grounds that ORG could not afford to pay them . Many other politicians followed suit . In general , given GPE 's dire economic situation , there is little desire to pay ORG fees , and little understanding of the important role the introduction of fees would have in enhancing ORG 's independence .", "Since the establishment of ORG , ORG has prepared CARDINAL DATE budgets , which were sent to ORG for approval . ORG does not have to provide details of their estimated expenditure for the upcoming year , but only the total . ”" ]

[ "10" ]

[]

[]

[]

[]

[]

[ "The applicants , PERSON , PERSON and PERSON and PERSON are NORP nationals , born in DATE , DATE , DATE and DATE respectively , and live in GPE . They were represented before the Court by Mr A. Feichtner , a lawyer practising in PERSON ( GPE ) .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicants’ father or husband , respectively , concluded a “ tenancy , option to purchase and mortgage agreement ” ( Miet- , Options- PERSON ) with the owner of an apartment in GPE ( GPE ) . According to this agreement its duration was to be DATE , the rent was CARDINAL NORP schilling per year and was considered as having already been paid as part of the contribution to the costs of construction . The tenancy contract automatically extended to future heirs . The owner would accept any successor named by the other party or its heirs as tenant . Furthermore , the owner granted him a right to pre - emption and an option to purchase the apartment to which he was bound for the duration of the contract . The price was fixed and in case of purchase would be set off against the contribution to the construction costs . Subsequently this agreement was entered in ORG ) .", "In DATE the ORG filed an action with ORG ( PERSON ) against the applicants , the heirs to their father or husband who had died in the meantime , requesting the court to declare void ( ORG der GPE ) the “ tenancy , option to purchase and mortgage agreement ” of DATE .", "On DATE ORG declared the agreement void . It found that the intention of the parties when concluding the contract of DATE had been to transfer a status tantamount to that of an owner on the applicants’ father , as was apparent from the conditions set out in the contract although it had the form of a tenancy agreement . In view of the number of foreign land owners in GPE , the real property transaction authorities would not have given their consent to a sales contract . The contract of DATE was therefore a sham and had to be declared void under LAW , which provides that a contract concluded in violation of a prohibition established by law is void .", "Upon the ORG appeal , on DATE , ORG ( Oberlandesgericht ) confirmed ORG judgment . On DATE the applicants filed a further appeal on points of law ( Revision ) with ORG ( Oberster Gerichtshof ) in which they argued that the power of ORG to request the courts to declare void contracts which had been concluded DATE violated their rights under LAW No . CARDINAL as the declaration by ORG constituted a disproportionate interference with a legal position they had enjoyed over DATE . Furthermore , they argued that the DATE amendment to LAW had not been properly published and was therefore unconstitutional .", "On DATE ORG dismissed the ORG further appeal . It found that the DATE amendment had been properly published and that there was no reason for applying to ORG Verfassungsgerichtshof ) for a review of the constitutionality of that amendment . It also had no doubts about the constitutionality of Section CARDINALa of the Real Property Transactions Act as nobody could expect that a status acquired by an unlawful act could become one protected by the law in the future . The fact that ORG could file actions against sham contracts which had been concluded DATE did not interfere with acquired rights ( wohlerworbenen Rechten ) , the only limit being prescription after DATE .", "On DATE , after ORG had given its above decision , another chamber of that court decided that the right of ORG to request a declaratory decision applied only to transactions that were effected after DATE . If this right extended to previous transactions , that provision would be unconstitutional . On DATE ORG declared unconstitutional the DATE amendment to LAW , which established ORG powers , because it considered that this amendment had not been published as required by the relevant law .", "Under the Tyrol LAW DATE ( PERSON ) , a contract concerning the transfer of ownership over real property was subject to approval by ORG if agricultural and forestry land was concerned or if the purchaser did not possess NORP nationality ( Section CARDINAL and CARDINAL ) . Such a contract could only take effect if it was approved by the real property transaction authorities ( Sections CARDINAL and CARDINAL ) . The purchaser of land was obliged to seek approval of the contract within DATE ( LAW § CARDINAL ) . If approval was withheld , the acquisition was null and void ( LAW ) . The conclusion of a tenancy did not require such consent , neither did an acquisition under a will .", "According to an amendment to LAW of DATE , ORG . DATE , which entered into force on DATE , tenancy agreements concluded with a foreigner could only be entered in ORG after ORG had given its consent .", "A further amendment to LAW of DATE enabled ORG to request a court decision declaring void a contract which constituted a circumvention of the requirement of consent under LAW ( Section CARDINALa ) . This right of ORG also related to transactions which had been concluded before that amendment entered into force ( LAW ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant is an NORP citizen , born in DATE . At the time of the introduction of his application , the applicant was detained in FAC the GPE , GPE , GPE .", "The applicant is represented before the ORG by PERSON ORG , a firm of solicitors based in GPE , GPE , and by Mr PERSON ORG and Mr PERSON , both of ORG .", "A.", "On DATE a bomb exploded at FAC in GPE killing CARDINAL members of the security forces and wounding CARDINAL others . A young girl was also injured in the explosion . The bomb had been planted near FAC , situated at the basement level at the point of entry to the military wing of the hospital . The basement of the military wing of the hospital was linked to the basement of the main block ( “ the PERSON wing ” ) by an underground passage . A steel door separated the PERSON end of the passage from the tunnel leading to ORG . The draw - bars of the door had been wholly or partly sawn through with a hacksaw .", "The applicant , who was a porter at the hospital , was arrested while on duty at TIME on CARDINAL DATE pursuant to section DATE of ORG ( Temporary Provisions ) Act DATE . He was taken to ORG for questioning . Traces of explosive were found in the interior of his car and on a pair of white cotton gloves found under the front passenger seat of the car . CARDINAL pieces of metal swarf were found in the front passenger ’s foot - well and CARDINAL pieces of swarf were found on a pair of trousers belonging to the applicant which were seized following a search of his house . The applicant was cautioned under LAW ( GPE ) Order DATE at the time of his arrest and before his first interview .", "The applicant was first interviewed at TIME on DATE . When questioned , he replied : “ I ’ll not be saying anything until I see my solicitor ” . At his second interview , his only comment was : “ I ’ll make a statement when I see my solicitor ” .", "In the early part of his third interview from TIME to TIME on CARDINAL DATE the applicant continued to say nothing when questioned about his involvement in the explosion . However at some stage in the course of the third interview the applicant was asked : “ to get this matter out into the open ” . The applicant then proceeded to give an account of his involvement . This account was explored in the course of the subsequent interviews . The essence of the applicant ’s explanation was that he had agreed , under duress , to take CARDINAL men to the hospital on DATE . On DATE he drove the CARDINAL men to the hospital and parked his car in the hospital car park . They all went to the basement of the PERSON wing and he held the steel door open to allow the CARDINAL men to enter the military side of the underground passage . After the QUANTITY men had emerged from the passage he shut the steel door . They all exited the basement . The applicant stated that when he was told by the QUANTITY men to hold the steel door open he knew then that they were going to plant a bomb .", "The applicant ’s solicitor was not present during any of the interviews . The applicant saw his solicitor between the conclusion of his interview at TIME on DATE and the beginning of his next interview at TIME on DATE . The applicant continued to speak freely to the police after seeing his solicitor .", "After CARDINAL interviews the applicant was charged at TIME on DATE . He replied “ not guilty ” to the murder charges put to him .", "The applicant was tried before a judge sitting without a jury at ORG . At his trial , no challenge was made to the admissibility of the applicant ’s various statements on any ground . The applicant himself gave evidence and , while repeating facts suggesting duress , changed his defence and pleaded a lack of knowledge , foreseeability and intention of the crimes with which he was charged . The trial judge found :", "“ In the context of this case however , I had not the slightest difficulty in finding that [ the applicant ] was putting forward a completely lying defence . Hearing and observing him over DATE in the witness box left me in no doubt at all . His lies were deliberate and comprehensive … He was cunning in his attempts to build up his new defence of lack of knowledge of the operation … In cross examination he was evasive and sought to contradict an earlier answer or obscure it with vagueness when he thought it suited . My conclusion about the complete lack of credibility of his defence was based not only on my subjective conclusion , that is , a compelling impression of his lying demeanour in the witness box , but also on the objective view that the story he was telling was inherently unbelievable … ”", "The trial judge found that the applicant was a willing participant in the plan to blow up FAC . He further found that the applicant had full knowledge of and was party to the plan and knew it was organised and would be carried out by members of the IRA . The judge observed that the applicant knew the layout of the hospital and its system of working , its security and where the military congregated . In the judge ’s view , the applicant , before he set out to drive the CARDINAL men to the hospital , knew that their plan was to plant and explode a bomb close to FAC with the intention of killing soldiers congregated there . The applicant gave the CARDINAL men assistance in the preparation , planting and priming of the bomb in the tunnel . In giving this assistance , the applicant knew that it was in furtherance of the plan and particularly in the tunnel he knew that he was assisting the planting of a bomb which , when exploded , would cause grievous bodily harm , if not death , to the soldiers in FAC . For the trial judge , the applicant , like the other participants , had intended to kill the soldiers .", "The trial judge concluded that the applicant was guilty of murder , attempted murder and the related charges on those findings .", "On DATE the applicant was convicted on CARDINAL counts of murder , CARDINAL counts of attempted murder , of causing the bomb explosion and of being in possession of the bomb with intent contrary to section CARDINAL(CARDINAL)(b ) of LAW DATE . The applicant was sentenced to life imprisonment on the murder counts and to DATE imprisonment on the attempted murder counts . He was sentenced to DATE imprisonment on the count of causing the explosion and DATE imprisonment for being in possession of a bomb . All the sentences were to be served concurrently .", "The applicant appealed to ORG . He contended , inter alia , that his trial was unfair since the police refused him access to a solicitor during interview and that the trial judge had made extensive use of the applicant ’s admissions during interview . Counsel for the applicant submitted that the trial judge , in the exercise of his discretion , should have excluded the admissions because the applicant did not have his solicitor present during interview .", "In a judgment delivered on DATE ORG rejected the applicant ’s reliance on the opinion of ORG in the PERSON v. the GPE application : Lord Justice PERSON stated :", "“ We therefore hold that , whatever view ORG may eventually take of the content of the rights under LAW , it is not to be regarded as ipso facto unfair within the meaning of section ORG GPE ( Emergency LAW Act DATE if a person detained under LAW Act DATE has not been permitted to have his solicitor present during the process of questioning by the police . Accordingly the learned trial judge could not properly have been required to exercise his discretion under section ORG ) of the DATE Act in such a way as to exclude the [ applicant ’s ] statements on the sole ground that he was refused permission to have his solicitor present with him during the interviews . This ground of appeal must therefore fail .", "In reaching this conclusion we have borne in mind [ the applicant ’s counsel ’s ] related point that LAW ) Order DATE created such a “ coercive pressure ” ( to use his phrase ) that the requirement of a solicitor ’s presence during interview was highlighted . We do not accept that LAW implies such a requirement . If that had been the intention of ORG we have no doubt that it would have said so in clear terms . We do not agree that LAW creates a “ coercive pressure ” : it represents a conscious attempt by ORG to achieve a balance of fairness when … the law abiding members of the community are beset by so much ordinary as well as terrorist crime . ”", "B. Relevant domestic law and practice", "Provisions governing inferences which may be drawn from an accused ’s silence", "Article CARDINAL of the Criminal Evidence ( Northern Ireland ) Order DATE provides in so far as relevant :", "“ Circumstances in which inferences may be drawn from an accused ’s failure to mention particular facts when questioned , charged etc .", "( CARDINAL ) Where in any proceedings against a person for an offence , evidence is given that the accused", "( a ) at any time before he was charged with the offence , on being questioned by a constable trying to discover whether or by whom the offence was committed , failed to mention any fact relied on in his defence in those proceedings ; or", "( b ) on being charged with the offence or officially informed that he might be prosecuted for it , failed to mention any such fact ,", "being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , paragraph ( CARDINAL ) applies .", "( CARDINAL ) Where this paragraph applies ...", "( c ) the court ... in determining whether the accused is guilty of the offence charged , may", "( i ) draw such inferences from the failure as appear proper ;", "( ii ) on the basis of such inferences treat the failure as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure is material . ”", "NORP Provisions governing access to a solicitor", "The relevant provisions at the time of the applicant ’s trial governing the right of access to legal advice as a terrorist suspect were contained in section CARDINAL of GPE ( Emergency LAW DATE which , in so far as material , provides :", "“ ( CARDINAL ) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled , if he so requests , to consult a solicitor privately . ”", "Section CARDINAL of the LAW does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor ; nor is a person suspected of terrorist offences entitled DATE as provided for under paragraph CARDINAL of Code C of the Criminal Evidence ( GPE ) Order DATE in respect of non - terrorist offences – to have his solicitor present whilst he is interviewed . In this connection , section CARDINAL(CARDINAL ) of the DATE Order provides , in so far as relevant :", "“ Nothing in a code of practice ... applies to the exercise of powers conferred by or under [ the Prevention of Terrorism ( Temporary Provisions ) Act DATE ] or to a person arrested or detained under those provisions . ”", "Non - statutory guidelines issued by the Secretary of ORG for GPE in respect of the detention of persons suspected of terrorist offences , current at the time of the applicant ’s arrest , provided , in so far as relevant , at paragraph CARDINAL :", "“ A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless :", "...", "( b ) an officer of the rank of superintendent or above has reasonable grounds for believing that :", "( i ) delay will involve an immediate risk of harm to persons or serious loss of , or damage to , property ; or", "( ii ) where a solicitor has been contacted and has agreed to attend , awaiting his arrival would cause unreasonable delay to the process of investigation ; or", "( c ) the solicitor nominated by the person , or selected by him from a list :", "( i ) can not be contacted ;", "( ii ) has previously indicated that he does not wish to be contacted ;", "( iii ) having been contacted , has declined to attend ; or", "( d ) the person has given his agreement in writing that the interview may be started at once . ”" ]

[]

[]

[]

[]

[]

[]

[ "ORG Mr. PERSON , who is an NORP national born in DATE , lives in PERSON .", "He complains of criminal proceedings brought against him for causing actual bodily harm to his step - daughter on DATE and to his wife on the following DATE .", "ORG The incident on DATE was reported to the PERSON police ( PERSON ) DATE , first by a neighbour at the applicant ’s request and then by the applicant himself . According to him , his wife and step - daughter - who had TIME called him a \" convict \" ( PERSON ) - attacked him at TIME during a quarrel . In particular , he claimed that his wife had inflicted several head wounds with a paper - knife and gashed his forehead close to his eyebrow . He had needed treatment by a doctor .", "He admitted that he had pushed his wife at the time and had tried unsuccessfully to slap his step - daughter in the face .", "ORG On DATE , the police questioned the applicant ’s wife as a \" suspect \" ( PERSON ) and his step - daughter , PERSON , as a \" person involved \" ( Beteiligte ) .", "Mrs. PERSON stated that she had been slapped in the face and beaten by her husband , who had grabbed her daughter by the hair to stop her running away ; both of them had then fought back . She had been holding a paper - knife and had , she said , probably struck him with it , but neither she nor her daughter had deliberately caused him any wounds to the head or face .", "Miss PERSON admitted having called her step - father a \" convict \" that TIME , and said that he had responded by slapping her in the face , but without injuring her . During the quarrel at TIME , he had hit her mother several times , once in the face . When she herself had tried to escape , he had grabbed her by the hair and scratched her just below the right eye . He had also grabbed her mother by the hair and by the scruff of the neck . The CARDINAL women had therefore fought back , and she had pulled her step - father ’s hair but had not hit him ; she had not seen her mother strike him with the paper - knife . Her step - father ’s forehead was bleeding , but she had not seen a wound on the back of his head . She added that a doctor she had consulted had issued a certificate in respect of her own injury .", "ORG On DATE , the PERSON police sent ORG ( LOC ) a report ( PERSON ) \" concerning PERSON and PERSON , suspected of causing actual bodily harm ( Körperverletzung ) \" .", "According to the police , Mrs. PERSON and her daughter had attacked the applicant in the course of a quarrel , during which the former had probably ( vermutlich ) struck him several times with a paper - knife , causing a laceration on the back of his head and again close to his eyebrow . He himself had allegedly ( angeblich ) hit his step - daughter in the face and scratched her slightly just below the right eye .", "Under the heading \" Evidence \" , the report referred to the statement by the above - mentioned neighbour of the PERSON to the effect that the applicant , whose face was covered in blood , had asked her to alert the police . The applicant had appeared in person at the police station TIME later holding a paper - knife ; he had explained that his wife had struck him on the head with it several times . Since Mr. PERSON seemed to need first aid , the officer on duty had suggested that he should see a doctor .", "The police went on to say that they had already had to intervene in several quarrels in the household . They added that the CARDINAL protagonists had given conflicting accounts of the incident on DATE . Miss PERSON , who had been questioned as an informant ( ORG ) , had clearly taken her mother ’s side .", "The report indicated that the applicant ’s injuries had been described as \" slight \" by the doctor .", "Under the heading \" Information given by the suspects \" , the police summarised Mr. and Mrs. PERSON ’s statements .", "The report was accompanied by several documents , including the statements made by the applicant , his wife and his step - daughter and the certificate issued by the doctor who had examined Miss PERSON .", "ORG The second incident , which took place on DATE , was reported to the PERSON police on DATE by Mrs. PERSON . She stated that her husband , who was slightly drunk , had kicked her right arm during a quarrel , causing her acute pain . An X - ray at the hospital DATE had shown that her right thumb was broken , and this had left her unfit for work for DATE . She added that she had started divorce proceedings against her husband .", "On DATE , the hospital in PERSON had sent the police a report stating that the injury , inflicted by the complainant ’s \" own husband \" , should be regarded as serious .", "ORG The police took a statement from Mr. PERSON on DATE . He denied injuring his wife on DATE , saying that her hand had already been bandaged when he had come home . She had actually attempted to hit him on the head with a hairbrush , but had missed and collided with the stair - rail instead . This might have aggravated the thumb injury , but the accusation she had made against him was a complete fabrication .", "The applicant confirmed that divorce proceedings had been pending for some time .", "ORG On DATE , the PERSON police sent ORG a report \" concerning PERSON , suspected of causing grievous bodily harm \" . This stated that the couple had had a quarrel on DATE , during which Mr. PERSON had kicked his wife ’s right arm . It went on to summarise Mrs. PERSON ’s and her husband ’s statements , which were appended .", "ORG On an application from ORG , ORG decided on DATE to open an investigation against the applicant in respect of the CARDINAL incidents . After separating the proceedings against Mrs. Unterpertinger in respect of the first incident ( see paragraph CARDINAL above ) , ORG acquitted her on DATE .", "ORG On DATE , Mrs. PERSON appeared before a judge at GPE , who told her that , as the wife of the accused ( PERSON ) , she was entitled to refuse to give evidence . In fact , LAW provides : \" members of the accused ’s family ... shall not be required to give evidence \" .", "She replied that she nonetheless wished to do so , and gave an account of the facts in dispute , summarising what she had already told the police and disputing her husband ’s version of the incident on DATE .", "Suspected of causing actual bodily harm contrary to Articles CARDINAL et seq . of LAW , the applicant was questioned on DATE by a judge of ORG . He admitted slapping his wife in the face on DATE . According to him , he had pulled Miss PERSON ’s hair in order to escape the CARDINAL women ’s attacks and might in so doing have injured her close to her eye ; he had also struck her in the face . As regards the second incident , he repeated what he had already said ( see paragraph CARDINAL above ) ; he also stated that he had not seen his wife come into contact with the stair - rail and added that he was not sufficiently agile to have been able to kick her thumb .", "ORG The case was heard on DATE by a judge of ORG ( PERSON ) , sitting alone .", "ORG According to the record of the hearing , the applicant pleaded not guilty . He admitted that he had hit his step - daughter on the head , but not that he had injured her . Nor had he broken his wife ’s thumb by kicking it ; he had no idea where she had broken it .", "ORG then called Mrs. PERSON and PERSON . On being told by the court of their right to refuse to give evidence ( see paragraph CARDINAL above ) , they replied that they wished to avail themselves of that right . The court was consequently unable to examine them or to read out the record of Mrs. PERSON ’s interview with the judge at PERSON ( Article CARDINAL ) of LAW ) .", "At the request of ORG , however , the documents it had mentioned in its application for leave to prosecute ( PERSON ) , including the police reports , the accused ’s criminal record and CARDINAL files relating to previous convictions of his , were read out . These documents thus included the various statements made to the police : in NORP judicial practice these had to be regarded as documents for the purposes of DATE ) of LAW ( see in particular judgment of DATE of ORG ( Oberster Gerichtshof , PERSON DATE , p. CARDINAL ) ; this meant that they had to be read out , unless the parties agreed that they should not be .", "ORG At the end of the hearing , ORG found the applicant guilty of having committed , on DATE , the offence ( PERSON ) of causing actual bodily harm ( Article CARDINAL(CARDINAL ) of LAW ) to his step - daughter and , on DATE , the offence of causing grievous bodily harm ( schwere ORG , PERSON ) and PERSON ) of LAW ) to his wife . He was sentenced to CARDINAL months’ imprisonment .", "Referring to the \" inquiries made \" and to the defence ( ORG ) put forward by Mr. PERSON , the court held that the following facts had been established .", "During the quarrel on DATE , the applicant had hit his wife several times and had struck his step - daughter in the face , bruising her between the eye and nose and scratching her close to her right eye . His account could not be believed : he had admitted to the judge at GPE that he had struck Miss PERSON in the face and he had not ruled out the possibility that this might have caused the scratch . The injuries were slight , but his conduct showed that his actions had been deliberate .", "On DATE , Mr. PERSON had broken his wife ’s right thumb by kicking her . Again , his defence did not stand up to examination . In addition , his record showed that he was quite capable of behaving in this way . He and his wife had had frequent quarrels , often ending in assault .", "The court pointed out that Mrs. Unterpertinger - who in the meantime had divorced her husband - and her daughter had refused to give evidence at the trial . It nonetheless found their statements to the police \" sufficiently clear and specific to support a conviction \" ; \" there [ could be ] no doubt as to the truth of these statements \" . In this instance too , the applicant had acted deliberately .", "The court found no mitigating circumstances ; on the contrary , it saw the applicant ’s criminal record as an aggravating circumstance .", "ORG Mr. PERSON appealed on DATE .", "He argued that the judgment of DATE was null and void ( Article CARDINAL ) of LAW ) : in spite of LAW , his former wife and step - daughter , whose statements to the police had formed the sole basis of his conviction , had not been informed at the outset that they were entitled to refuse to give evidence , and had thus been unable to avail themselves of this right .", "Furthermore , ORG had not taken sufficient account of certain circumstances which made the credibility of Mrs. PERSON and her daughter doubtful . In this connection , the applicant requested that evidence should be taken from several witnesses , including CARDINAL doctors , a police officer , a neighbour and his own mother , step - daughter and former wife .", "Finally , he emphasised that in the past he had always admitted the offences with which he had been charged - as was clear from the files on the earlier proceedings . In this instance , however , he had acted in self - defence during the first incident and with no intention of injuring his step - daughter - if indeed he really had injured her . ORG had disregarded his version of the events of DATE . As for the incident of CARDINAL September CARDINAL , he repeated that his former wife had been having trouble with her right thumb even before that date , as he had mentioned when he was first questioned . He further claimed that he himself had been suffering from a knee injury which would have prevented him from kicking hard enough to break his wife ’s thumb . He requested that these points should be investigated further and , in particular , that evidence should be taken from a number of people and an expert opinion ( PERSON ) obtained .", "In conclusion , Mr. PERSON asked ORG ( Oberlandesgericht ) to quash the conviction of DATE and acquit him . Failing this , he asked it to review his sentence in the light of the degree of his guilt .", "ORG sat on DATE .", "Counsel for the applicant submitted the grounds of appeal and requested , inter alia , that additional witnesses be called by the court . He added that the fact that his client was not allowed to put questions concerning the statements made to the police by the prosecution witnesses contravened LAW . The prosecution sought to have the appeal dismissed .", "Thereupon , the court decided to re - examine the evidence submitted to the court of first instance and to supplement it ( LOC ) by having the file on the divorce proceedings read out and hearing testimony from the wife of Mr. PERSON ’s brother . She was unable to say whether the applicant ’s former wife had had a bandage on her hand in the DATE or DATE . The applicant waived his right to cross - examine her .", "The court had the documents in the file on the case read out and put several questions to Mr. PERSON , in particular about his knee injury . According to him , he was asked to walk up and down so that the judges could form an idea of his condition .", "The court refused to admit the remaining evidence proffered , as to part , on the ground that the circumstances to which it related were of no importance and , as to the rest , because the applicant had not specified the matters he wished to be investigated further .", "ORG dismissed the applicant ’s appeal immediately after the hearing on DATE .", "With regard to the ground of nullity on which he had relied ( see paragraph CARDINAL above ) , it noted , on the basis of ORG case - law , that a lawful refusal to give evidence did not prevent the court from having read out witnesses’ statements which had been made to the police ( PERSON ) and not during the judicial proceedings proper . It added that ORG had ruled that the courts were indeed obliged to have such statements read out and to weigh them as evidence .", "Otherwise , ORG was of the opinion that the evidence it had heard confirmed the findings of ORG . The ORG statements to the police were plausible and credible ; their account of the incident was logically coherent . The applicant ’s previous convictions showed that conduct like that of which he was accused was by no means alien to his nature . Moreover , he had given the police and the investigating judge conflicting versions of what had happened on DATE . His sister - in - law , who had been called as a witness , had been unable to give any information in this regard . As for his claim that he was not sufficiently agile to have been able to break his wife ’s thumb with a kick , this did not stand up to examination either .", "Except for his sister - in - law , it was unnecessary to hear the witnesses the applicant had sought to have called , since he had referred to them in connection with matters that were either of no importance or else extremely vague .", "Consequently , Mr. PERSON ’s conviction on the CARDINAL counts against him was justified ; he had not been acting in self - defence on DATE . The sentence imposed was consistent with the degree of his guilt ( schuldangemessen ) .", "ORG The applicant served his sentence from CARDINAL DATE to CARDINAL DATE ." ]

[ "6" ]

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

[ "6-3-d" ]

[]

[]

[]

[ "The applicant is a NORP national , born in DATE . He is currently serving a prison sentence in GPE . He is represented before the ORG by PERSON , a lawyer attached to the GPE - based ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "DATE and DATE the applicant and CARDINAL other co - defendants , PERSON and PERSON , were tried before a jury at ORG on CARDINAL counts of conspiracy to produce and possess with intent to supply cannabis . PERSON pleaded guilty to CARDINAL fire - arms charges .", "The charges against the applicant arose out of a police raid on a house of which he had previously been a tenant . The police found that cannabis was being cultivated on the LOC using hydroponic equipment . According to the prosecution the applicant had used his scientific expertise to set up a cannabis - making factory in the house and had bought hydroponic equipment for this purpose DATE while living in the house . He had then moved out in order to distance himself from the operation .", "The applicant did not answer questions when interviewed by the police following his arrest .", "At the close of the prosecution ’s arguments , the applicant ’s counsel advised him that he need not give evidence since he considered that there was no real evidence against him . The applicant did not testify .", "In his summing up to the jury at the close of the trial , the trial judge , Judge PERSON , with reference to CARDINAL of ORG LAW DATE , directed the jury on the manner in which they were to deal with the applicant ’s failure to give evidence . The judge ’s direction was based on the ORG specimen directions . Specifically , he said :", "“ [ The applicant ] , of course , has not given evidence , and that is , as [ the applicant ’s ] counsel ] quite properly reminded you , [ the applicant ’s ] legal right . The burden of proving the case still remains on the Prosecution throughout , and [ the applicant ] is quite entitled to say , as he has through [ his counsel ] , ‘ The Prosecution has failed to prove its case , and I stand on ORG . Moreover , failure to give evidence on its own can not prove guilt . On the other hand , if , and only if , you are satisfied that the evidence relied on by the Prosecution established that there is a case to answer , then in those circumstances you may consider [ the applicant ’s ] failure to give evidence . If , and only if , the sole sensible explanation for [ the applicant ’s ] decision not to give evidence is that he has no answer to the case against him , or none that could stand up to cross - examination , then it would be open to you , if you think fit , to hold against him his failure to give evidence . It is for you and you alone to decide whether it is fair to do in the circumstances of this case . ”", "The jury retired to consider their verdict . A note was subsequently sent through to the judge from the jury stating that :", "“ Regarding the evidence relating to [ the applicant ] we are unable to find definitive evidence to show guilt . However we do feel that there is a ‘ case to ORG . Are we able to infer that there is no defence because [ the applicant ] failed to give evidence ?", "Ultimately we believe that [ the applicant ] was involved but we are experiencing difficulty in finding facts . Would your Honour please clarify his comments relating to the exercise of defendant ’s right not to give evidence . ”", "In the absence of the jury , the trial judge addressed the applicant ’s counsel as follows :", "“ I take the view , subject of course to anything that you say , that the correct course would be for me to remind the jury of that which I said firstly about circumstantial evidence , but then in relation to the failure to give evidence ... ”", "The applicant ’s counsel agreed and also proposed that the jury be reminded again that the prosecution bore the burden of proving the applicant ’s guilt beyond reasonable doubt . The judge agreed .", "The jury returned and announced a verdict of guilty against CARDINAL co - defendant , PERSON , and acquitted another , PERSON However , as regards the applicant , the jury informed the judge that they had not yet reached a verdict . The judge then gave the jury further directions in relation to the evidence against the applicant and his failure to give evidence . He stated :", "“ May I first of all remind you of that which I have said about circumstantial evidence . It sometimes happens that a jury is asked to find some fact proved by considering direct evidence of it . Direct evidence may take many forms ... On the other hand it is often the case that direct evidence of a crime is not available and the jury is required to decide the case on what I call ‘ circumstantial evidence’ . That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and to the defendant in order to demonstrate that some or all of the circumstances , when taken together , establish the defendant ’s guilt . Because the only conclusion to be drawn from that evidence is that it was the defendant who committed the crime ... the evidence must lead you to the sure conclusion that the charge that the defendant faces is proved against him . Circumstantial evidence can be powerful evidence , but it is clearly important that you do examine the evidence with care and consider whether the evidence upon which the Prosecution relies in proof of its case is reliable and whether it does prove guilt . Furthermore , before convicting on circumstantial evidence , you should consider whether the evidence reveals any other circumstances which are or may be of sufficient reliability or strength to weaken or destroy the Prosecution case ...", "But may I turn now to the failure of [ the applicant ] to give evidence , and may I remind you that that is his legal right not to give evidence . In spite of his not giving evidence , the burden of proving the case still remains on the Prosecution throughout . [ The applicant ] has to prove nothing ... Moreover , failure to give evidence on its own can not prove guilt . On the other hand , if and only if , you are satisfied that the evidence relied on by the Prosecution establishes that there is a case for him to answer , then in those circumstances you may go on to consider [ the applicant ’s ] failure to give evidence . If , and only if , the sole sensible explanation for his decision not to give evidence is that he has no answer to the case against him , or no answer that could have stood up to cross - examination , then it would be open to you , if you thought fit , to hold against him failure to give evidence . It is for you to decide whether it is fair to do in all the circumstances of this case . ”", "The judge then allowed the jury to reach a majority verdict of CARDINAL . The jury retired at TIME to consider their verdict . At TIME they returned a verdict of guilty by a majority of CARDINAL .", "On DATE the applicant was sentenced to CARDINAL concurrent terms of imprisonment of DATE .", "The applicant sought to have his conviction overturned on the ground , inter alia , that the trial judge had erred in his second summing up to the jury by failing to mention that it was for the prosecution to prove beyond reasonable doubt that the applicant was guilty . The applicant was granted leave by the Single Judge to appeal to ORG against conviction and sentence .", "On DATE ORG dismissed the applicant ’s appeal against conviction but reduced his sentence . Lord Justice PERSON , delivering the judgment of the court , agreed with the argument put forward by counsel for the Crown that the trial judge was not obliged to repeat a direction on the burden of proof if he had already given one to that effect . Lord Justice PERSON stated :", "“ The fact that the matter had to be proved to the criminal standard of proof was CARDINAL on which the Judge had given the jury a very clear and correct direction at the beginning of the summing up and although it is a pity that he forgot to do what he had clearly intended to do , we do not consider that this late direction to the jury can be faulted on those grounds . ”", "The applicant did not seek leave to appeal to ORG .", "Section CARDINAL of ORG LAW DATE provides that :", "“ CARDINAL . Where in any proceedings against a person for an offence , evidence is given that the accused –", "( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ; or", "( b ) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .", "Where this subsection applies ...", "( c ) the court , in determining whether there is a case to answer ; and", "( d ) the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences from the failure as appear proper .", "Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention . ” .", "Section CARDINAL ( CARDINAL ) and ( CARDINAL ) provides :", "“ ( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .", "( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”", "Section CARDINAL ( CARDINAL ) adds that :", "“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”", "Guidance as to the direction which the judge should give the jury in respect of section CARDINAL of ORG LAW DATE are provided by the ORG specimen directions and by the dicta of Lord PERSON in NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) .", "The dicta of Lord PERSON are as follows :", "“ We consider that the specimen direction is in general terms a sound guide . It may be necessary to adapt it to the particular circumstances of an individual case . But there are certain essentials which we would highlight :", "The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .", "It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .", "An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .", "Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant ’s silence .", "NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant ’s having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”", "Following ORG judgments in NORP v. PERSON and NORP v. ORG , the following specimen direction in respect of section CARDINAL was drawn up by ORG . It states :", "“ The defendant has not given evidence . That is his right . He is entitled to remain silent and require the prosecution to prove its case . You must not assume he is guilty just because he has not given evidence because , failure to give evidence can not , on its own prove , prove guilt . However , as he has been told , depending on the circumstances , you may take into account his failure to give evidence when deciding on your verdict .", "NORP In the first place when considering the evidence as it now is you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution .", "( ... )", "NORP In the second place , if you think that in all the circumstances it is right to do so , you are entitled , when deciding whether the defendant is guilty of the offence(s ) charged , to draw such inferences from his failure to given evidence as you think proper . In simple terms , this means that you may hold this failure against him .", "[ There is evidence before you on the basis of which the defendant ’s advocate invites you not to hold it against the defendant that he has not given evidence . That evidence is ( here set out the evidence ) . If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence , do not hold his silence against him . If , on the other hand , it does not in your judgment provide an adequate explanation for his absence from the witness box , then you may , if you think it right , hold his failure to give evidence against him . ]", "What inference can you properly draw from the defendant ’s decision not to given evidence before you ? If you conclude that there is no case for him to meet , you may think that if he had an answer to it he would have gone into the witness box to tell you what it is .", "If , in your judgment , the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give , or none that could have stood up to cross - examination , then it would be open to you to hold against him his failure to give evidence , that is , take it into account as some additional support for the prosecution ’s case . You are not bound to do so . It is for you to decide whether it is fair to do so . ”", "In NORP v. PERSON ( [ DATE ] Criminal Law Reports ) Lord PERSON stated , with reference to section CARDINAL of the DATE Act :", "“ Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant ’s failure to give oral evidence at his trial until they have concluded that the ORG ’s case against him is sufficiently compelling to call for an answer by him . ... There is a clear risk of injustice if the requirements of logic and fairness are not observed ( ... ) ”", "Section CARDINAL(CARDINAL ) of LAW DATE , as amended by LAW DATE , provides a single , composite ground of appeal against a criminal conviction . It states that ORG :", "“ shall allow an appeal against conviction if it thinks that the conviction is unsafe ” .", "In NORP v. NORP and PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ORG recognised that the omission of the word “ unsatisfactory ” which had been contained in the former section CARDINAL of LAW had changed the law . A conviction will not be liable to be quashed on account only of procedural irregularity , or abuse of process or a failure of justice to be seen to be done . However in NORP v. PERSON" ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He is represented before the ORG by PERSON CARDINAL ORG , a lawyer practising in GPE .", "On DATE , the applicant 's wife drowned and , shortly after , the applicant was arrested and detained on suspicion of having killed her . In the criminal proceedings that were subsequently brought against the applicant , ORG ( gerechtshof ) of GPE DATE on DATE and following proceedings on appeal – convicted the applicant and sentenced him to DATE imprisonment . Following subsequent proceedings in cassation , ORG ( PERSON ) quashed the judgment of DATE and remitted the case to ORG . In the course of the proceedings before ORG and on an unspecified date , the applicant was released from pre - trial detention . On DATE , ORG acquitted the applicant of the charges brought against him .", "After the applicant had been arrested and placed in detention , his DATE then still minor DATE children were placed under supervision ( ondertoezichtstelling ) of the child welfare authorities and away from their family home ( uithuisplaatsing ) .", "In a ruling handed down on DATE , ORG ( arrondissementsrechtbank ) , acting on a request filed on DATE by ORG ( PERSON – “ the Board ” ) , relieved the applicant of his parental authority ( ontheffing ouderlijk gezag ) over CARDINAL of his children , namely those who at that time were still a minor , and appointed ORG ( PERSON – “ the ORG ” ) as their guardian ( voogdes ) .", "The applicant 's appeal against his ruling was dismissed on DATE by ORG . ORG noted that the criminal proceedings against the applicant had been remitted by ORG to ORG and that the proceedings before this court had been stayed until DATE on medical grounds . As regards the CARDINAL oldest of the CARDINAL children DATE who were born in DATE and DATE , respectively , and who had been heard before ORG – ORG noted that they had indicated that they did not wish to have any contacts with their father anymore and that the applicant , respecting the wishes of these CARDINAL children , no longer objected to being relieved of his parental authority over them .", "As regards the CARDINAL youngest children – twins born in DATE – ORG noted that they were staying with a foster family and that the initial arrangement for the applicant 's access to them , i.e. once per month , had been reduced by ORG to TIME DATE in the applicant 's home and contact by telephone every uneven month . ORG held in their respect as follows :", "“ ORG is of the opinion that [ their ] placement under supervision and away from [ their ] home do no longer suffice to protect the children against physical and moral ruin ( lichamelijke en zedelijke ondergang ) . On this point , ORG has submitted that the children require as soon as possible certainty about the place where they can grow up further . ORG considers it necessary that , noting what has occurred in their lives on account of their mother 's death , the authority over the children is to be exercised by someone else than the father . In the course of the proceedings , ORG has added that after relieving [ the father of his parental authority ] – in particular since already for DATE the father has not had any an active educational responsibility – the position of the father vis - à - vis the children will only become clearer . ORG did also emphasise that the children are being harmed in their development by the erratic course of the criminal proceedings in which still no definite decision has yet been taken , on which ground ORG now calls for a speedy decision .", "Since DATE ... the ORG has not noted any obstruction from the side of the father anymore ; the contacts with the father run quite well . Nevertheless the ORG subscribes to the ORG 's position that a relief of parental authority is in the children 's interest ; it would be beneficial for them to have their future clearly laid out in a safe and stable situation . Also the foster family , with whom the children have now stayed for DATE and who moreover offer favourable future prospects would benefit from clarity . Certainly when growing up , children must know where they stand . To this end it is important that it will become clear that now , but also later , someone else is responsible for their care and upbringing . The current situation around the father , whether or not detained , is too disruptive for the children ; the children seek answers – that are as understandable as possible – to their questions . Parental authority must be separated from the [ issue of ] contacts with the father , which must be continued also [ if the applicant is relieved of his parental authority ] . The ORG favours maintaining the current access arrangement ; the former access arrangement was too burdensome for the foster family , who also had had to deal with access arrangements involving [ the older siblings of the twins ] . [ The foster family ] is prepared , after [ the applicant has been relieved of his parental authority ] , to set up a broader access arrangement in consultation with the father .", "ORG adopts as its own the position taken by ORG . There is a founded fear that , owing to the unsuitability or incapacity ( ongeschiktheid of onmacht ) of the father , the placement under supervision , also in view of its temporary nature , is insufficient to avert the threat for the children .", "Having regard to the father 's health condition and the fact that he is currently staying at home , ORG is of the opinion that the ORG , as indeed already proposed by it , must in that framework give attention to the frequency of the access arrangement which now has been reduced from CARDINAL to CARDINAL times per year . The clarity that a relief of parental authority entails can create space for the ORG to develop a further arrangement . ”", "The applicant 's appeal in cassation against this ruling was rejected by ORG on DATE .", "In the meantime , on DATE , the applicant had filed a request with ORG to restore his parental authority over the twins or , alternatively – to determine a broader access arrangement , namely an arrangement under which he would have access to the twins from TIME until TIME every fortnight .", "On DATE , ORG declared the applicant inadmissible in his request to restore his parental authority as the decision in which he had been relieved of his parental authority was not yet final as the proceedings on the applicant 's appeal in cassation against the ruling of DATE were still pending before ORG . It further decided to stay pro forma and until DATE its examination of the applicant 's request for a broader access arrangement . It requested the parties to submit information by that date to whom the parental authority had been entrusted and the ORG to submit information about the running of the access arrangement .", "The applicant filed an appeal against the decision of DATE with ORG . On DATE , ORG examined the applicant 's appeal . After having heard the parties , ORG decided to adjourn its further examination pending the submission of a report by ORG NORP ( PERSON NORP Adviesbureau NORP – “ NORP ” ) on the access arrangement issue . It decided to adjourn pro forma until DATE and , if the report had been submitted by then , to schedule a further hearing in DATE or DATE by which date the ORG should have set a time frame for an investigation into the question whether to work on returning the twins into the care and custody of their father would be in their interest .", "On DATE , a further hearing was held before ORG . It adjourned its further examination of the appeal pending a further investigation by ORG ( Ambulant Bureau PERSON – “ ABJ ) on specific question points to be agreed upon between the parties . Failing such an agreement , ORG would hand down an interim decision defining the scope of the further investigation by the ORG .", "In its decision of DATE , noting that the parties had been unable to reach an agreement and that they had requested the court to formulate the questions , ORG ordered the ORG to prepare a report dealing with the following points :", "“ a. how is the ( social - emotional ) development of the children and is the father 's concern about their development justified ;", "b. what is the significance of the foster parents for the children ;", "c. how is the relationship between the children and the father ; is there bonding ;", "d. what image do the children have of their father ;", "e. what are the father 's possibilities in a pedagogical sense ;", "PERSON are the pedagogical and other capabilities of the father sufficient for taking on again the care and upbringing of the children ;", "g. what are the possibilities of the father in respect of realising contacts between the children and their CARDINAL brothers and their sister ;", "h. is the father ( mentally ) capable to exercise access rights and/or parental authority in a responsible manner ;", "i. have other facts and circumstances become known during the investigation that might be of relevance for any decision to be taken by the court in relation to the parental authority and access ? ”", "ORG adjourned its further examination pending the submission of this report . On DATE , the requested report was submitted to ORG .", "In its decision of DATE , following a hearing held on DATE , ORG declared the applicant inadmissible in his request for a broader access arrangement , quashed the decision of DATE in so far as the applicant had been declared inadmissible in his request for restoring his parental authority , declared this request admissible and rejected it . This decision , in its relevant part , reads as follows :", "“ CARDINAL . ORG has declared the father inadmissible in his request to restore his parental authority over the minor children because , in ORG opinion , it was not clear whether or not the father had been relieved of his parental authority , because the proceedings on the appeal filed by the father against the decision of DATE were still pending .", "As the decision of DATE was declared as being immediately enforceable ( uitvoerbaar bij voorraad ) , it did have legal effects for the father , so that he was admissible in his request to ORG . ORG must therefore examine on appeal and anew the father 's request for restoring his parental authority .", "From the examination at trial and from the ORG report inter alia the following has appeared .", "Although the children are involved with the father in a positive way , this involvement is limited . The children indicate that they do not wish to live with the father . The father wishes to be restored in his parental authority in order to be able to claim a more central role in the provision of aid to the children .", "The children have now lived for DATE with the foster parents . The children have difficulties , noting everything that has happened in the past , with bonding [ with others ] , they have been harmed in their ability to bond [ with others ] ( hechtingsbeschadigd ) , also because in the past their mother was only to a limited extent emotionally available to the children . The children 's bonding with the foster parents has only just begun . This bonding development ( hechtingsontwikkeling ) is in the interest of a healthy personality development . The father has little sight on the children 's problems . His wish to care for the children appears to flow mainly from a sense of duty . He can give little substance to that . He overlooks the children 's interests . A termination of the bonding process would have serious negative consequences for the children 's emotional development .", "Although ORG understands the wish of the father who , owing to the sad course of events surrounding his wife 's death , has lost his parental authority , ORG finds , in view of the above considerations , that it is of the utmost importance for the children that the bonding process set into motion is continued , in which it is also of importance to create now clarity about the authority over them ; it is beneficial for them to have clarity for the future in a safe and stable situation .", "In addition the children have regular contacts with [ CARDINAL older siblings ] , who play a big role in the process of dealing with the loss of the mother . The father has already since DATE no contacts anymore with [ these CARDINAL siblings ] . The children have a great interest in a continuation of their contact with [ these CARDINAL siblings ] which would be jeopardised if the father were to be restored in his parental authority .", "In view of the above , the ORG is not convinced that the minor children should be entrusted again to the father and it will therefore reject the father 's request to this effect .", "As regards the father 's request to determine an access arrangement , ORG notes that , in the impugned decision , ORG has stayed [ its examination of ] this request . Consequently , the father is inadmissible in his appeal against this interim decision . ”", "The applicant 's subsequent appeal in cassation was rejected by ORG on DATE .", "The duties of ORG , as set out in LAW the ORG ” ) , include keeping itself informed of developments affecting child welfare , promoting cooperation between institutions concerned with child welfare and giving advice , upon request or of their own motion , to authorities and institutions . It has competence to take action in the interests of minors ( LAW ) .", "Parental authority over minor children born in wedlock is exercised jointly by both parents ( Articles CARDINAL:CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG ) . It comprises the duty and the right of parents to care for and bring up their child ( LAW ) . Under caring for and bringing up is also to be understood the care and responsibility for the mental and physical well - being of the child and the furtherance of the development of its personality ( LAW of the ORG ) . A parent invested with parental authority is the child 's statutory representative ( wettelijk vertegenwoordiger ) and administers its possessions ( LAW ) . If parental authority is exercised by both parents jointly and CARDINAL of them dies , the parental authority will be exercised by the surviving spouse alone if that spouse had parental authority when the other spouse died ( DATE the ORG ) .", "According to LAW , the juvenile court judge ( kinderrechter ) may , on the application of inter alia ORG , order a minor child 's placement under supervision of a family supervision institution ( gezinsvoogdij - instelling ) within the meaning of LAW ( Wet op de Jeugdhulpverlening ) , if the child is growing up under such conditions that it is threatened with moral or physical ruin ( zedelijke of lichamelijke ondergang ) . Such an order can be given for a maximum period of DATE , but may be prolonged by a maximum of DATE on each occasion ( Article CARDINAL of the ORG ) .", "If necessary in the interest of the child 's care and upbringing or for the purposes of an examination of the child 's mental or physical health condition , the juvenile court judge can further authorise that the child be placed away from its family home ( Article CARDINAL:CARDINAL of the ORG ) . Also such an authorisation can only be given for a maximum period of DATE , with the possibility of subsequent prolongations by a maximum of DATE on each occasion ( Article CARDINAL:CARDINAL § CARDINAL of the ORG ) .", "Under GPE law , a parent invested with parental authority can be deprived of this authority by a decision of ORG either by being relieved of it ( ontheffing ) under LAW like the applicant in the present case – or by removal from it ( ontzetting ) under LAW . Relief of parental authority – which can only be pronounced upon a request by ORG by ORG or the public prosecution department ( openbaar ministerie ) – is based on a parent 's unsuitability or incapacity ( ongeschiktheid of onmacht ) to fulfil his / her duty of care and upbringing . Removal from parental authority – which can only be pronounced upon a request by the other parent , CARDINAL of the relatives by marriage or blood up to and including the fourth degree of consanguinity , ORG or the public prosecution department DATE is based on an imputable and wilful dereliction of duty or on an imputable unworthiness in the assumption of the task of mentor and care provider .", "A decision to relieve a parent from his or her parental authority can not be taken if opposed by the parent concerned ( LAW ) . However , this rule does not apply where it appears after a placement under supervision of DATE , or where after a placement away from the family home of DATE and DATE there is a founded fear , that this measure – by the unsuitability or incapacity of a parent to fulfil his or her duty of care and upbringing DATE is insufficient to avert the threat with moral or physical ruin ( LAW ) .", "Both forms of deprivation of parental authority entail a full loss of the authority over underage children . A request to be restored in parental authority may be filed with ORG by the parent concerned or by ORG . If ORG is convinced that a minor can be entrusted again to the parent who has been relieved or removed from his / her parental authority , it may restore this parent in his / her authority ( LAW ) . In the determination of such a request , ORG is to balance the interests of both the child and the parent . Pending this determination , both ORG and the parent concerned can request ORG to stay its determination pending a probationary period of maximum DATE during which period the child is to stay with the parent seeking restoration of parental authority ( LAW ) .", "Access rights are regulated by Articles CARDINAL:CARDINALa - h of the ORG . Article CARDINAL of the ORG , in so far as relevant , provides as follows :", "“ CARDINAL . The child and the parent who does not have custody are entitled to have access to each other ( omgang met CARDINAL ) .", "The judge shall , at the request of the parents or of CARDINAL of them , establish an arrangement , for a definite or indefinite period , for the exercise of the right of access or shall deny , for a definite or indefinite period , the right of access .", "The judge shall only deny the right of access if :", "a. access would seriously impair the mental or physical development of the child ; or", "b. the parent must be deemed to be manifestly unfit for or manifestly incapable of access ; or", "c. the child , being DATE , when being heard has manifested serious objections against allowing the parent access ; or", "d. access would for another reason be contrary to the weighty interests ( zwaarwegende belangen ) of the child . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in LOC .", "The applicant was the chairman of ORG ( “ PERSON ” ) .", "In DATE the NORP opposition , comprising a coalition of NORP groups and NORP fundamentalists , seized power from ORG , which led to civil war . In DATE ORG elected PERSON as its chairman and head of ORG . PERSON was supported by armed forces of ORG . The applicant was the leader of ORG in the GPE region of NORP .", "NORP In DATE Mr PERSON was declared winner in the Presidential election . The applicant supported the opposition candidate , Mr PERSON .", "On DATE Mr PERSON signed a “ peace and accord ” agreement with the representative of ORG . On DATE ORG ) of NORP passed LAW which provided for discontinuation of criminal proceedings against the participants in the political and military conflict after DATE . Pending criminal cases , in which convictions had not been yet handed down , were to be discontinued , and no new cases were to be opened .", "On DATE a force led by PERSON and PERSON PERSON launched an offensive in GPE . The ORG began a counter - offensive , joined by ORG forces . By DATE the Government had retaken control of the province after intense fighting . The applicant declared that he had not taken part in the offensive ; he had been ill and had stayed in GPE .", "On an unspecified date the applicant 's youngest son was convicted for participation in the offensive and sentenced to DATE imprisonment . A search warrant was issued against the applicant who had fled to GPE together with his family .", "On DATE an investigator in charge of particularly serious cases in ORG charged the applicant with criminal offences allegedly committed between DATE and DATE . The charges included kidnapping , manslaughter , participation in an anti - Government organisation , participation in an armed group with a view to attacking Government institutions , subversive activities , high treason and conspiracy to seize State power .", "By a separate decision of the same date , the investigator held that the applicant should be taken into custody and that his name should be put on the list of fugitives from justice . The decision was approved by the acting Prosecutor General of NORP .", "On DATE the applicant was arrested in GPE . On DATE ORG sent a request for the applicant 's extradition to its NORP counterpart which was received on DATE .", "On DATE the Nagatinskiy ORG of GPE ordered the applicant 's detention on the basis of ORG CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure , finding as follows :", "“ Having heard the parties to the proceedings , the court finds the [ prosecution 's ] request justified because the criminal - procedure laws governing application of measures of restraint have been complied with and the case file contains sufficient grounds showing that no measure of restraint other than deprivation of liberty may be applied to the accused . Mr PERSON is charged with serious and particularly serious crimes carrying a penalty of DATE imprisonment . His name is on the international list of fugitives from justice . Furthermore , the court considers that , since Mr PERSON is a foreign national and has no permanent place of residence within NORP territory , he may abscond from investigation and prosecution or otherwise hinder the criminal proceedings . ”", "ORG did not set a time - limit for detention .", "On DATE the applicant and his counsel asked ORG to refuse the request for his extradition . He submitted that he was being prosecuted in NORP on political grounds , that he risked a death sentence if found guilty as charged , and the guarantee against inhuman treatment and the right to a fair trial would not be respected in NORP . He indicated that he had applied for political asylum in GPE .", "On DATE counsel for the applicant asked the director of the remand centre to release the applicant . In her submission , as there had been no arrest warrant issued by a NORP court , the provisions of LAW on pre - trial detention were to be applied . Article CARDINAL set the maximum detention period at DATE . As the detention period had not been extended following the expiry of that period on DATE , the applicant 's subsequent detention was unlawful . In these circumstances , the director of the remand centre had a statutory duty to release anyone detained unlawfully .", "On DATE the director of the remand centre replied to her that the applicant was still detained under ORG decision of CARDINAL DATE and that his release would only be possible if there was a new judicial decision or a decision by ORG refusing his extradition .", "On DATE counsel asked ORG to release the applicant , submitting that his detention had been unlawful under domestic terms and that , in any event , LAW limited the period of provisional arrest to DATE ( Article CARDINAL § CARDINAL ) . No reply was received .", "NORP In DATE NORP counsel for the applicant asked ORG of NORP to review the lawfulness of the applicant 's detention because the maximum term of detention under LAW was DATE . On DATE ORG refused to consider the complaint , claiming that it should be examined by the court having territorial jurisdiction for the detention centre .", "On DATE counsel lodged complaints with ORG , and the Nagatinskiy and ORG of GPE , seeking the applicant 's release on the ground that the maximum term of detention under LAW had expired .", "On DATE the Nagatinskiy ORG returned the complaint , indicating that it had no territorial jurisdiction . It also pointed out that the measure of restraint had been applied under LAW and that counsel 's references to LAW were therefore irrelevant .", "On DATE a deputy head of ORG of ORG told counsel to petition the “ competent authorities ” of NORP in order to have the measure of restraint varied .", "On DATE counsel applied , with the same request , to ORG . By letter of DATE , the head of the department for investigation of particularly serious crimes informed her that LAW was not applicable because the applicant was not in NORP and because his detention had never been extended in NORP . Accordingly , the complaint would only be considered after the applicant had been extradited .", "On DATE the maximum DATE detention period laid down in LAW expired .", "On DATE the director of the remand centre told counsel that within the meaning of LAW the applicant was neither a “ suspect ” nor a “ defendant ” , whereas the provision concerning the statutory duty to release anyone detained unlawfully only mentioned “ suspects ” and “ defendants ” . He further reminded counsel that there had so far been no judicial decision on the applicant 's release or a refusal by the prosecutor to extradite him .", "Counsel for the applicant unsuccessfully sought judicial review of the applicant 's detention in ORG , and the PERSON and ORG of GPE . She relied on LAW .", "On DATE the Tverskoy District Court disallowed the counsel 's complaint about ORG Office 's failure to release the applicant , finding as follows :", "“ The measure of restraint was imposed on PERSON exclusively for the purposes of providing legal assistance in criminal proceedings conducted in NORP . The procedure for detaining persons with a view to extradition is governed by LAW of LAW of GPE .", "LAW does not limit the period of detention of individuals whose extradition is being sought ... The international - law instruments submitted to the court do not limit [ that period ] either . In these circumstances , the court considers unsubstantiated counsel 's reliance on LAW and their reference to the fact that Mr PERSON 's detention had never been extended .", "In the territory of GPE there is no investigation of PERSON and he is not a party to criminal proceedings within the meaning of LAW ...", "The court also takes into account the fact that the decision on Mr PERSON 's extradition has not been taken to date because he had applied for asylum in GPE and then lodged an appeal against the decisions ... rejecting his asylum claim . ”", "On DATE ORG upheld that decision , reproducing its reasoning verbatim .", "The applicant complained to ORG , claiming that the legal situation where detention of a person with a view to extradition was not limited in time was incompatible with the constitutional guarantee against arbitrary detention .", "On DATE ORG declared the application inadmissible . It pointed out that there was no ambiguity in the contested provisions because the general provisions governing measures of restraint should apply to all forms and stages of criminal proceedings , including proceedings on extradition ( for further details on ORG decision , see paragraph DATE below ) .", "On DATE counsel for the applicant lodged a complaint against ORG . She submitted that there were no legal provisions permitting the holding of the applicant in custody beyond the maximum DATE period and that the applicant 's detention should be subject to judicial review . She alleged , in particular , a violation of LAW .", "On DATE ORG dismissed the complaint , finding that ORG was not responsible for the applicant 's detention and that LAW did not require it to extend the period of detention until the decision on extradition had been taken .", "On DATE counsel for the applicant wrote to ORG and the director of the remand centre that the applicant 's detention was unlawful and that he should be released immediately .", "On DATE ORG rejected , in the final instance , the applicant 's request for political asylum in GPE .", "On DATE the first deputy prosecutor of the PERSON District of GPE asked the ORG to extend the applicant 's detention by DATE on the ground that , after his application for asylum had been turned down , the prosecution needed additional time to examine the request for extradition .", "On DATE ORG granted the prosecution 's request , relying on ORG CARDINAL and CARDINAL § CARDINAL of LAW . ORG noted that the prosecution had produced evidence showing that the extradition request was being decided upon , and that the applicant was charged with serious and particularly serious crimes , had no permanent place of residence in GPE and would abscond if released .", "On DATE ORG upheld that decision on appeal , finding that it was lawful and justified . It did not refer to any legal provisions governing the applicant 's detention .", "By letter of DATE , a deputy Prosecutor General informed the applicant that a decision had been taken to extradite him to NORP . A copy of the decision was not enclosed .", "Counsel challenged the decision before ORG and applied to this ORG with a request for interim measures under LAW .", "On DATE the ORG indicated to the respondent Government that the applicant should not be extradited to NORP until further notice .", "By letter of DATE , the Government acknowledged receipt of the ORG 's decision and confirmed that the domestic authorities had been informed accordingly .", "On DATE ORG overruled the prosecutor 's decision to extradite the applicant . It noted at the outset that ORG had not furnished the guarantees required by NORP law that the applicant would only be tried for the offences for which the extradition was sought , that he would be free to leave the country after serving the sentence and that he would not be deported , transferred or extradited to a third State without the consent of GPE .", "ORG further found that , in granting the extradition request , the deputy Prosecutor General had failed to consider whether the applicant could be prosecuted for an offence connected with a political offence , whereas LAW prohibited extradition in such situations . As the applicant 's extradition was sought in connection with offences allegedly committed from DATE to DATE , ORG determined that his prosecution had been initiated in breach of LAW of DATE ( see paragraph CARDINAL above ) and was therefore politically motivated . Moreover , the applicant was eligible for amnesty under LAW of DATE .", "ORG ordered the applicant 's release , finding that the maximum detention period set out in Articles CARDINAL and CARDINAL of LAW had expired and that his detention in excess of that period had been unlawful in the light of ORG decision of DATE .", "On DATE the prosecution lodged an appeal . They claimed , in particular , that the allegedly political motives of the applicant 's prosecution had been examined “ by way of an exchange of secret correspondence ” between ORG , ORG and ORG which ORG had not taken into account . They also alleged that the applicant 's period of detention had not expired because ORG decision of DATE had not been quashed .", "On DATE ORG of GPE dismissed the appeal by the prosecution and refused the extradition of the applicant to NORP .", "The LAW guarantees the right to liberty ( LAW ) :", "“ CARDINAL . Everyone has the right to liberty and personal integrity .", "Arrest , placement in custody and detention are only permitted on the basis of a judicial decision . Prior to a judicial decision , an individual may not be detained for longer than TIME . ”", "ORG ( signed in GPE on DATE and amended on DATE , “ the DATE Minsk Convention ” ) , to which both GPE and NORP are parties , provides as follows :", "“ CARDINAL . NORP The person whose extradition is sought may also be arrested before receipt of a request for extradition , if there is a related petition ( ходатайство ) . The petition shall contain a reference to a detention order or a final conviction and shall indicate that a request for extradition will follow ... ”", "“ CARDINAL . A person arrested pursuant to LAW ... shall be released ... if no request for extradition is received by the requested ORG within DATE of the arrest ... ”", "“ The requested ORG shall notify the requesting ORG of the place and time of surrender . If the requesting ORG does not accept the person being extradited within DATE of the scheduled date of surrender , that person shall be released . ”", "LAW of DATE ( ORG no . CARDINAL ) , to which GPE is a party , provides as follows :", "“ CARDINAL . In case of urgency the competent authorities of the requesting ORG may request the provisional arrest of the person sought . The competent authorities of the requested ORG shall decide the matter in accordance with its law .", "...", "ORG . Provisional arrest may be terminated if , within DATE after arrest , the requested ORG has not received the request for extradition and the documents mentioned in LAW . It shall not , in any event , exceed DATE from the date of such arrest . The possibility of provisional release at any time is not excluded , but the requested ORG shall take any measures which it considers necessary to prevent the escape of the person sought . ”", "LAW ( “ Measures of restraint ” ) governs application of measures of restraint , or preventive measures ( меры пресечения ) , which include , in particular , placement in custody . A custodial measure may only be ordered by judicial decision in respect of a person who is suspected of , or charged with , a criminal offence punishable by DATE imprisonment ( LAW in custody ” ) . The time - limit for detention pending investigation is fixed at DATE ( Article CARDINAL “ ORG - limits for detention ” ) . A judge may extend that period DATE ( LAW ) . Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) . A judicial decision ordering or extending the application of a custodial measure may be appealed against to a higher court within DATE of its issue ( Articles QUANTITY § DATE and CARDINAL § CARDINAL ) . A custodial measure may be revoked or varied by a judicial decision if it is no longer considered necessary ( LAW Revoking or varying the measure of restraint ” ) .", "LAW ( “ Extradition of a person for criminal prosecution or execution of sentence ” ) regulates extradition procedures . Article CARDINAL is the only provision in the chapter that governs application of measures of restraint with a view to extradition . Paragraph CARDINAL deals with the situation where a request for extradition is not accompanied by a detention order issued by a foreign court . In that case a prosecutor must decide whether it is necessary to impose a measure of restraint “ in accordance with the procedure provided for in the present Code ” . Paragraph CARDINAL establishes that , if a foreign judicial decision on placement in custody is available , a prosecutor may place the person in detention or under house arrest . In that eventuality no confirmation of the foreign judicial decision by a NORP court is required .", "Chapter CARDINAL ( “ Petitions ” ) provides that suspects , defendants , victims , experts , civil plaintiffs , civil defendants , and their representatives may petition officials for taking procedural decisions that would secure rights and legitimate interests of the petitioner ( LAW ) . LAW ( “ Complaints about acts and decisions by courts and officials involved in criminal proceedings ” ) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of damaging the constitutional rights or freedom of the parties to criminal proceedings ( LAW ) . The competent court is that which has jurisdiction for the place of the preliminary investigation ( ibid . ) .", "Verifying the compatibility of LAW with LAW , ORG reiterated its constant case - law that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .", "In ORG view , the absence of a specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW ORG provided that , in executing a request for legal assistance , the requested party would apply its domestic law , that is , the procedure laid down in LAW . Such procedure comprised , in particular , LAW and the norms in its LAW ( “ Measures of restraint ” ) which , by virtue of their general character and position in Part I of the LAW ( “ General provisions ” ) , applied to all stages and forms of criminal proceedings , including proceedings for examination of extradition requests .", "The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in LAW were fully applicable to detention with a view to extradition . Accordingly , LAW did not allow the authorities to apply a custodial measure without respecting the procedure established in LAW or in excess of time - limits fixed in the Code .", "The Prosecutor General asked ORG for an official clarification of its decision in Mr PERSON 's case ( see above ) , for the purpose in particular of elucidating the procedure for extending a person 's detention with a view to extradition .", "ORG dismissed the request , finding it was not competent to indicate specific provisions of the criminal law governing the procedure and time - limits for holding a person in custody with a view to extradition . That matter was within the competence of courts of general jurisdiction .", "In the case of PERSON , concerning his detention with a view to extradition to GPE , ORG held as follows ( case no . DATE , DATE ) :", "“ The term of detention of the person who is to be extradited to the place of commission of the offence ... is not governed by LAW . In accordance with the requirements of [ the DATE Minsk Convention ] , the person arrested at the request of a foreign state , may be held in custody for DATE until a request for extradition has been received . Subsequent detention of the person is governed by the criminal law of the requesting party ( GPE in the instant case ) . ”" ]

[ "5" ]

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

[ "5-1-f" ]

[]

[]

[]

[ "The applicant is a limited company ( société anonyme ) , which , in accordance with a resolution of its general meeting of DATE , is in voluntary liquidation . It was represented by its liquidator Mr PERSON , who was appointed by a decision of ORG dated DATE .", "The company ORG , a sub - subsidiary of ORG , was set up in DATE to take over , by virtue of a transfer decree of DATE , the concessions and leases of the Sacilor iron - ore mines in PERSON .", "The applicant subsequently took over other concessions , in particular those of the company ORG and its subsidiary ORG - Giraumont . It thus held a total of CARDINAL iron - ore mining concessions in PERSON on the date when it announced that it was to shut down its mining operations . Iron - ore mining had been in constant decline since DATE . The company was forced to discontinue its mining activity because worldwide competition meant that it was no longer profitable to mine iron - ore in PERSON . The applicant company 's iron - ore production had thus fallen from QUANTITY in DATE to QUANTITY in DATE . As the demand for the applicant company 's phosphoric pig iron had slowly dwindled away , it decided in DATE to halt production . The closure of the various pits was staggered DATE and DATE . The applicant company had to stop all extraction operations in DATE . It underwent privatisation in DATE and in DATE .", "With a view to the complete cessation of its activity , the applicant company initiated the appropriate procedures for the abandonment and renunciation of its concessions . The abandonment procedure , for the purpose of decommissioning and stabilising disused mining installations , entails the implementation of an order ( arrêté ) in which the requisite abandonment operations are stipulated by the prefect having territorial jurisdiction . It ends when the authorities are able to confirm that the requirements have been fulfilled . The renunciation procedure terminates the concession with the result that its holder is no longer bound by the special mining regulations and is released from the presumption of liability in respect of any damage which occurs above ground . At the time when the cessation of the company 's operations was announced , the abandonment and renunciation procedures were governed by ORG DATE and CARDINAL of LAW and by Decree no . CARDINAL of CARDINAL DATE concerning mining and quarrying regulations . Law no . CARDINAL of DATE , amending certain provisions of LAW , repealed Articles CARDINAL and CARDINAL and replaced them by Articles CARDINAL and CARDINAL . Decree no . CARDINAL of DATE , issued after consultation of the ORG d'Etat , pertaining to the opening of mines and mining regulations , was adopted for the implementation of those provisions . Lastly , PERSON no . CARDINAL of DATE concerning liability for damage resulting from mining and the prevention of mining - related risks after discontinuance , brought about further amendments to mining law ( see paragraphs CARDINAL to CARDINAL below ) .", "Numerous regulatory measures ( over twenty ) were taken in this connection against the applicant company , which challenged them all in ORG of GPE and PERSON . The applicant company also lodged numerous appeals seeking the annulment of refusals by the Minister responsible for mining to accept its renunciation of a number of concessions ; it requested that the Minister be ordered to accept the renunciation of those concessions and sought compensation for the loss it had sustained as a result of the refusals .", "NORP The inter - prefectoral order ( prefectures of the PERSON region , the département of GPE and the département of GPE ) of CARDINAL DATE , laying down regulatory measures in the mining sector , imposed certain obligations on the applicant company :", "...", "“ It is hereby decided as follows :", "Article CARDINAL : The company NORP ... shall be required , in a prompt manner , to appoint a panel of CARDINAL specialists from outside the company , having submitted the composition of the panel for the prior approval of the prefects , and having regard to the opinion of ORG , to carry out the following assignment :", "- analysis of the parts of the mining installations referred to in the penultimate paragraph of the preamble , located between elevations ORG CARDINAL and CARDINAL in the municipalities ( communes ) of GPE , PERSON , PERSON , PERSON and PERSON ( Meurthe - et - GPE ) , ORG , ORG , PERSON , PERSON and GPE ( GPE ) ;", "- classification of the parts of the mining installations thus enumerated according to the presence of both aggravating instability factors and vulnerability related to the type of dwelling at risk .", "The company NORP shall make available to the specialists any technical documents and archives in its possession concerning the operations in question . The company shall transmit to the prefect , within a period of DATE after the notification of the present order , the report issued by the said specialists on the completion of their assignment .", "LAW The company NORP ... shall take all necessary measures to ensure the permanent availability of an adequate and sufficiently large network of surveyors , in order to be in a position to implement , upon the request of the prefects , any monitoring and observation measures that may be required by the situation . ”", "Moreover , in an order of DATE , the prefects of GPE and ORG imposed the following on the applicant company :", "...", "“ Having regard to the urgency ;", "Acknowledging the report of the experts appointed by the company PERSON in accordance with the above - mentioned prefectoral order ;", "Recognising that , in the light of current knowledge , the appearance of cracks in buildings may be a preliminary indication of subsidence ;", "Upon the proposal of the Regional Director for ORG and the Environment of Lorraine ;", "It is hereby decided as follows :", "The company NORP ... shall take all necessary measures to ensure the permanent availability of an adequate and sufficiently large network of building experts , so that it is able to carry out , promptly and upon the request of the prefects , analysis of the cracks in buildings in the “ yellow ” , “ orange ” and “ red ” zones , the lower parts of buildings included , within the perimeter of the iron - ore mining concessions held by the company NORP ... in the municipalities of GPE , PERSON , PERSON , PERSON and PERSON ( Meurthe - et - GPE ) , ORG , ORG , PERSON , PERSON and GPE ( GPE ) ;", "The assessments carried out by those experts shall be reported in writing to the prefects concerned , in the appropriate time - frame and form such as to be compatible with the triggering of the alert procedure , should that prove necessary , or within TIME in other cases .", "... ”", "NORP In letters of DATE and CARDINAL DATE the applicant company lodged administrative appeals with the Minister for ORG , Finance and Industry , requesting that he rescind the orders of CARDINAL May and DATE and seeking the reimbursement of the sums incurred in order to meet the requirements of those orders . The applicant company claimed that the order had failed to take account of the fact that it no longer operated the mines at issue and that the sites referred to in the order had undergone an abandonment and renunciation procedure .", "On DATE , acting upon an application from the Secretary of ORG , ORG of the ORG d'Etat , under the presidency of PERSON , the reporting judge being PERSON , gave an advisory opinion concerning the “ work of stabilising and rehabilitating the sites of disused mines – Powers of the authority vis - à - vis the mine operator – application of the Law of DATE ” . ... That opinion was published in the DATE report of the PERSON d'Etat for DATE and reads as follows :", "“ The PERSON d'Etat ( ORG ) , has been called upon by the Secretary of ORG to answer the following questions :", "Does not the immediate application of the new LAW impair the established rights of the holders of mining concessions or licences , in so far as work commenced prior to this legislation is at issue ? Should or could a limit be set on the regulatory obligations that may be imposed on them , since the objectives now enshrined in the mining regulations were clearly not envisaged when the operations were first started ?", "Should the principle of the proportionality of acts of the administrative authorities be construed as requiring the prefect to take account of the human , financial or technical means available to the operator when he imposes specific measures on the latter ?", "To what extent , should it prove impossible for the mine operator to implement the prefect 's instructions , would the obligations thus imposed be assumed by the ORG and then performed and financed by the latter ?", "Could the possible extension introduced by the use of the term “ measures ” rather than “ work ” in LAW lead to the imposition of other requirements , apart from those whose result is attainable within a period that is consistent with the need to bring an end to the special mining regulations , for example a pumping requirement , which could only be fulfilled in the long term , or in a period that would be difficult to foresee ?", "In the latter case , is there not a contradiction with Articles DATE and CARDINAL § CARDINAL of the decree of CARDINAL DATE , which seem , at least implicitly and for mines operated normally , to limit the imposition of mining regulations to the term of the mining concession ?", "Moreover , should the prefect confine himself to physical measures or is he entitled to impose financial measures such as payment to an organisation by way of performance ?", "Would it be feasible to arrange for part of the obligations imposed under mining regulations ( for example those concerning the pumping of water or maintenance of equipment ) to be assigned to a third party ( company , consortium of public institutions , etc . ) ? Could the formal confirmation be issued once the prefect is able to observe that the operator has set up a structure providing for the performance of its obligations DATE or , on the contrary , can it only be issued once it has been observed that the prescribed measures have actually been carried out or completed ?", "In matters of ordre public ( public policy ) , is the court entitled , and on the basis of what criteria , to consider that section CARDINAL of the Law of DATE has an immediate effect on contracts in progress ? Would it be possible , if necessary , in the light of the LAW , to enact legislation giving retrospective effect to the abovementioned section CARDINAL ?", "On the basis of what criteria is the court entitled to rule out the application of a clause releasing the mine operator from liability in respect of damage caused by its mining activity , in the event of transfer of ownership ? In particular , is the court entitled to find such a clause null and void when the foreseeable or inevitable nature of the damage has been established ? In such cases , is it necessary to prove that the operator was aware of the risk or does the existence of the risk suffice , in so far as the operator should have been aware of it ? Moreover , may the seriousness of the damage be taken into account in the court 's interpretation of the validity of such clauses ?", "[ The PERSON d'Etat ] is minded to answer the foregoing questions as follows :", "As to the mining abandonment procedure ( LAW ) :", "( a ) A new legal rule will not apply to legal situations which have already become final on the date it enters into force . Accordingly , the abandonment of mining operations which began before the entry into force of the PERSON of DATE will not be governed by the new LAW , introduced by the said PERSON , if on that date the particulars of the work required for the stabilising and rehabilitation of the site have been irrevocably decided , pursuant to the former LAW and to LAW no . CARDINAL of CARDINAL DATE , by the acceptance of the declaration of relinquishment or abandonment submitted by the operator , or by virtue of a prefectoral order prescribing the work to be carried out . In other cases the new LAW will be applicable , and it will of course govern the abandonment of mining work started after DATE .", "( b ) The principle of the “ proportionality of acts of the administrative authorities ” entails that the authorities require the operator to take only those measures that are necessary in order to fulfil the objectives and preserve the interests enumerated in Articles DATE and CARDINAL of LAW . In assessing what is necessary , the authorities are not bound by the human , financial or technical capacities of the operator .", "( c ) The authorities have an obligation to ensure compliance with the measures that they have prescribed pursuant to the abovementioned provisions . In the event of any failure to act on the part of the operator , for any reason whatsoever , they must assume their powers of substitution under DATE . Failing that , the ORG 's responsibility may be totally or partially engaged in the event of non - performance .", "( d ) It follows from all the provisions of LAW that , unless otherwise agreed by the operator , the authorities can not impose measures without fixing a time - limit . The performance of such measures can not be required to continue in the long term , after the mining concession has expired , except in the case provided for LAW CARDINAL of the decree of CARDINAL DATE .", "( e ) In order to obtain formal confirmation , the operator must have performed the prescribed measures itself and is not entitled to have them performed by a third party , even if it provides that party with the requisite financial means .", "As to the validity of clauses in property transfer agreements which exclude the liability of the mining or prospecting company ( section CARDINAL of the Law of DATE ) :", "( a ) Subject to the independent findings of the competent courts , it would appear that LAW of DATE , which renders null and void on public policy grounds any clause , in property transfer agreements between mining companies and local authorities or natural persons outside the profession , which excludes the liability of the company for any damage related to its mining activity , does not apply to agreements entered into before the entry into force of the said PERSON . Unless retroactive effect is expressly stipulated by the legislature , a new law will not affect the terms and conditions of an agreement that has become final prior to the entry into force of that law .", "( b ) Except in penal matters , the principle of non - retrospectivity of laws is not binding on the legislature , which may therefore decide to give retrospective effect to section CARDINAL of the Law of DATE .", "( c ) It is not possible to give a general answer to the question concerning the possibility for the court to rule out the application of clauses releasing the vendor from liability . It will be for the competent courts to assess such clauses on a case - by - case basis in the light of Article DATE of LAW . ”", "On DATE and CARDINAL DATE the applicant company applied to the PERSON d'Etat for a judgment declaring ultra vires and annulling the above - mentioned prefectoral orders and the implied decisions of DATE and DATE by which the Minister had refused to withdraw those orders . The applicant company sought the reimbursement of the expenses that it had paid out for the implementation of those orders . It claimed , in particular , that it was for the authorities to bear the cost of missions for the monitoring and verification of the measures that they themselves had imposed on the operator for the closure of the mines . Moreover , it argued that it no longer operated the mines at issue since DATE and that , having complied with the requirements laid down by the prefect with regard to the abandonment of mining operations , it had been released from its obligations as concession - holder . In this connection it pointed out that for CARDINAL concessions the renunciation had been accepted ( Valleroy and PERSON ) , whilst in the other cases , the abandonment had become effective after the completion of the work prescribed by the prefect in DATE or was still in progress . It lastly considered that , in respect of the former concessions in question , the declarations of abandonment and applications for renunciation had been filed with the prefecture before the entry into force of the Law of DATE ( see paragraph CARDINAL below ) amending certain provisions of LAW and that those concessions could only therefore fall within the statutory and regulatory framework that existed prior to the entry into force of that PERSON ( former ORG DATE and CARDINAL of LAW , see paragraph CARDINAL below ) .", "On DATE the President of ORG of the PERSON d'Etat wrote to the director of legal affairs of the competent ministry to express his concern about the ministry 's shortcomings in the preparation of judicial cases which had been set down on a list of the PERSON d'Etat for hearing on DATE and which had had to be struck out at the very TIME on account of belated production by the ministry . He gave the following explanations :", "“ As regards case no . DATE , you were notified of it on DATE . In the absence of any response on your part , you were again invited to adduce your observations on DATE , DATE and CARDINAL DATE and on DATE .", "Since a case has to be heard even if the authority fails to reply , the case was entrusted to a reporting judge , examined at the preparatory stage , transmitted to a Government Commissioner and set down for hearing on DATE , with notice of the hearing being issued on DATE .", "It was not until after that notice of hearing that you produced observations which were received by facsimile in the ORG d'Etat on DATE .", "As the principle of adversarial proceedings required that your observations be communicated to the applicant company , the striking - out of the case was inevitable . This also happened , with a few minor differences , in case no . DATE . Such a situation is difficult to accept . For the purposes of preparing the case properly the judge sets time - limits for the parties . In some cases , if requested , an extension of the time - limit may be granted .", "In the present case , however , it was only after DATE and in spite of a number of reminders that you filed your observations , and you did so after the case had been set down for hearing , placing the PERSON d'Etat before the fait accompli and obliging it to strike out the case .", "In DATE the Prime Minister adopted specific measures to ensure the defence of the ORG in good conditions and the proper operation of judicial proceedings . It is regrettable that in this case his instructions were disregarded so patently . ”", "In a judgment of CARDINAL DATE ( nos . DATE and DATE ) , notified on DATE , the ORG d'Etat , after joining the CARDINAL cases , ruled as follows :", "“ ... Under the first paragraph of LAW ... decree [ of CARDINAL DATE pertaining to the opening of mines and mining regulations ] : ' The prefect shall decide , by way of an arrêté ( order ) , on regulations applicable to mining . Except in cases of urgency or imminent danger he shall first invite the mine operator to submit its observations and shall set a time - limit for that purpose ' . In view of the seriousness of the subsidence which occurred on DATE , DATE and DATE above various mines that had been operated by the company ORG and having regard to the report filed on DATE by the scientific advisory board set up on DATE for that purpose , the prefects of GPE and ORG were legally entitled to issue the urgent order of CARDINAL DATE requiring the applicant company to entrust to a panel of experts the analysis and risk assessment of a number of mining sites , and to have a network of surveyors permanently available in order to carry out the requisite supervisory measures . They were also entitled , on account of the urgency , without consulting the mine operator and as soon as the report had been issued by the experts appointed in the order of CARDINAL DATE , to require the company , in the order of DATE , to ensure that a network of building experts was permanently available . Accordingly , the arguments to the effect that those orders were issued without complying with the lawful procedure , in breach of the provisions of LAW of CARDINAL DATE , can not be upheld .", "Article CARDINAL of LAW , in the version deriving from GPE DATE , reads as follows : ' prospecting and mining work shall comply with the restrictions and obligations pertaining to ... / public health and safety , ... [ and ] to the solidity of public or private edifices ... / When the interests mentioned in the previous paragraph are put at risk by such work , the administrative authority may require the prospector or mine operator to take any measures for the purposes of ensuring the protection of those interests within a given time - limit ' . The last paragraph of LAW , which lays down the rules governing the discontinuance of mining operations , provides as follows : ' When the measures provided for by the present Article , or those prescribed by the administrative authority pursuant to the present Article , have been executed , the administrative authority shall issue the prospector or operator with its formal confirmation of completion ... ' . Article DATE of the decree of CARDINAL DATE provides : ' the administrative supervision and the mining regulations shall cease to take effect on DATE that the operator is issued with formal confirmation that the work has been completed ... / However , the prefect shall be empowered ... to take ... any measures that may be rendered necessary by incidents or accidents that can be attributed to former mining work , when such events are capable of damaging the interests protected by LAW , until the expiry of the mining concession ' .", "First , contrary to what has been contended , the PERSON of DATE entered into force as soon as it was published ; subsequently , and notwithstanding the fact that the applications for abandonment of operations were submitted before the entry into force of that PERSON , the prefects of GPE and ORG legally implemented it .", "Secondly , it follows from the combination of the provisions cited above that the completion by the operator of the work prescribed by the administrative authority for the purposes of closing a mine does not suffice to exonerate if from all liability unless and until it has been issued with formal confirmation of completion and , as regards any incidents and accidents that may interfere with the protection of the interests provided for under LAW , for as long as the operator holds the mining concession . It follows from the documents in the case file that , with the exception of the concessions of Valleroy and PERSON , the prefects of GPE and ORG had not issued formal confirmation of the completion of work in respect of the mines abandoned by [ the applicant company ] , nor had they accepted the proposed renunciation of the concessions concerned . Subsequently , the prefects ... were lawfully entitled , except in respect of those parts of the municipalities that were located above the Valleroy and PERSON concessions , to impose on the operator the necessary measures to prevent repetition of subsidence .", "Under Articles CARDINAL and CARDINAL of LAW , the administrative authorities are entitled to require the operator to take any measures for the purposes of guaranteeing public health and safety and the solidity of edifices , as provided for in LAW . These measures may consist both in studies for the assessment and enumeration of risks and in work to prevent or put an end to incidents .", "It is hereby decided as follows :", "Article CARDINAL : The implied decisions of DATE and DATE of the Minister for ORG , Finance and Industry and the orders of CARDINAL DATE and DATE are annulled in so far as they imposed on the [ applicant company ] measures of prevention , supervision and verification in respect of the areas of the municipalities located above the concessions of Valleroy and PERSON of which the renunciation had been accepted by the authority .", "LAW The ORG shall reimburse to ORG , with interest , the sums pertaining to the sites in respect of which the decisions of the Minister are annulled by the present decision ;", "Article CARDINAL : The ORG shall pay to ORG the sum of MONEY under section CARDINAL of the Law of DATE .", "...", "After deliberation on DATE in the presence of : PERSON , Deputy President of ORG , presiding ; PERSON , Mr ORG , Section Presidents ; Mr PERSON , PERSON , PERSON , Senior Members of the ORG d'Etat ; and Miss PERSON , Auditeur - rapporteur . ”", "By a decree of CARDINAL DATE , the President of the Republic appointed Mr ORG , a member of the PERSON d'Etat who had sat in the deliberation of DATE , to the post of Secretary General of ORG , ORG and ORG .", "On DATE the applicant company brought proceedings in ORG seeking the annulment of the implied decision of rejection resulting from the failure by the Minister for Economic Affairs to respond to its request for payment of the sum of MONEY pursuant to LAW CARDINAL DATE . By an order of DATE , the president of ORG transmitted the application to the ORG d'Etat .", "Concurrently , the applicant company requested the ORG d'Etat to order the ORG to pay a coercive fine of MONEY per day to guarantee execution of the entire decision of CARDINAL DATE .", "In a judgment of DATE ( nos . CARDINAL and DATE ) , notified on DATE , the PERSON d'Etat found that the execution in question was incomplete :", "“ ... the Minister for ORG , Finance and Industry ... ordered , on DATE , the payment of the sum of MONEY for the reimbursement of the expenses incurred on the sites in respect of which the Minister 's decisions had been annulled by the judgment of DATE . It follows from a calculation note produced by the authority that this sum consists of an indemnity of MONEY , being the capital , which has not been disputed , and interest amounting to MONEY . As regards the interest .... [ it ] should have run not from DATE , the date of the decision in which payment was ordered , but from the date on which [ the applicant company ] had actually paid the invoice of DATE issued by ORG . In view of the foregoing , [ the applicant company ] is justified in arguing that the judgment of DATE has not been fully executed .", "... to take , within DATE from notification of the present decision , as regards DATE for calculation of interest at the statutory rate , the necessary measures in order to ensure full execution of LAW of DATE , and to order it to pay a coercive fine of QUANTITY per day from the expiry of the said period if it has not by then fulfilled the said obligation .", "...", "After deliberation on DATE in the presence of : Mr PERSON , President of ORG , presiding ; Mr ORG , Mr GPE , ORG ; PERSON , PERSON , PERSON , Mr de Froment , Senior Members of the PERSON d'Etat ; PERSON Thiellay , PERSON and PERSON , PERSON - rapporteur . ”", "Further to the above - mentioned orders of CARDINAL May and DATE and other orders of CARDINAL DATE requiring the analysis of the parts of mining installations that were located in several municipalities which had not been covered by the expert 's report prescribed by the inter - prefectoral order of CARDINAL DATE , and the classification of the parts of mining installations thus enumerated according to the presence of both aggravating instability factors and vulnerability related to the types of dwelling , the prefects of GPE , GPE - et - Moselle and ORG made an order dated DATE containing the following requirements :", "“ ...", "Article CARDINAL", "The company NORP ... shall take all necessary measures , promptly and at the request of the prefects for the places concerned , to carry out an analysis of cracks in buildings or facilities located within the “ yellow , orange and red ” zones , which are indicated as being at risk from significant soil movements in the maps issued showing degrees of potential delayed subsidence , and which are situated within the ground areas of the iron - ore mining concessions held by the company Lormines on parts of the départements of GPE , ORG and GPE .", "The assessments shall be reported in writing to the prefects concerned , in the appropriate time - frame and form such as to be compatible with the triggering of the alert procedure , should that prove necessary , or within TIME in other cases .", "... ”", "The applicant company was unable to execute this order ( non - execution at ORG ) and execution was thus initiated by the ORG at the company 's expense . In respect of this execution the applicant company was required to pay the sum of MONEY , by a payment order of CARDINAL DATE which it disputed before ORG .", "On DATE the applicant company lodged with the ORG d'Etat an application seeking the annulment of the inter - prefectoral order of CARDINAL DATE , for being ultra vires , and sought a stay of execution of that order .", "On DATE the company applied to the ORG d'Etat seeking the annulment of the implied decision of rejection resulting from the Minister 's failure to reply to its request for the withdrawal of the inter - prefectoral order of CARDINAL DATE and for payment by ORG an indemnity of MONEY to compensate for the expenses it had incurred in implementing the impugned order .", "In its submissions of CARDINAL DATE the applicant company asked to receive , prior to the hearing , copies of the mining - related opinions given by the administrative divisions of the ORG d'Etat over DATE , as well as the submissions of the Government Commissioner .", "On DATE the applicant company stated that it did not wish to maintain its requests for the withdrawal of the Government Commissioner and for disqualification of the section of the ORG d'Etat to which the case had been assigned .", "In a judgment of DATE ( CARDINAL . DATE and DATE ) , the ORG d'Etat ( with the same bench as for the above - mentioned judgment of CARDINAL DATE , nos . DATE and DATE ) , after joining the CARDINAL applications , dismissed the applicant company 's clams :", "...", "“ ...", "Concerning the submissions seeking the annulment of the inter - prefectoral order of DATE laying down regulatory measures in the mining sector and the implied decision of rejection by the Minister for ORG , Finance and Industry further to an administrative appeal against that order :", "... Fifthly , LAW , in the version deriving from LAW DATE , reads as follows : ' Prospecting and mining work shall comply with the restrictions and obligations pertaining to ... / public health and safety , ... [ and ] to the solidity of public or private edifices ... : When the interests mentioned in the previous paragraph are put at risk by such work , the administrative authority may require the prospector or mine operator to take any measures for the purposes of ensuring the protection of those interests within a given time - limit ' . The last paragraph of LAW , which lays down the rules governing the discontinuance of mining operations , provides as follows : ' When the measures provided for by the present article , or those prescribed by the administrative authority pursuant to the present article , have been executed , the administrative authority shall issue the prospector or operator with its formal confirmation ... ' . LAW of CARDINAL DATE provides : ' The administrative supervision and the mining regulations shall cease to take effect on the date that the operator is issued with formal confirmation that the work has been completed ... / However , the prefect shall be empowered ... to take ... any measures that may be rendered necessary by incidents or accidents that can be attributed to former mining work , when such events are capable of damaging the interests protected by LAW , until the expiry of the mining concession ' . LAW provides : ' renunciation , whether total or partial , of rights to mine or quarry prospecting or exploration shall become final only after being accepted by the minister responsible for mining ' . LAW of DATE provides : ' Applications for renunciation of a mining concession shall be lodged with the minister responsible for mining . / ... Acceptance of renunciation shall be given in an order of the minister responsible for mining ' .", "Contrary to what has been contended , the LAW DATE entered into force as soon as it was published and was to be applied to all mining concessions currently valid at that date . Subsequently , and notwithstanding the fact that the applications for abandonment of work and renunciation of concessions were apparently submitted before the entry into force of that PERSON , the prefects of GPE , GPE and ORG legally implemented it . The applicant company can not , in any event , appropriately rely on an argument based on a breach of the principles of legitimate expectation and legal certainty when the order appealed against was not made for the purposes of implementing ORG law .", "Moreover , it follows from the combination of the provisions cited above that the completion by the operator of the work prescribed by the administrative authority for the purposes of closing a mine does not suffice to release it from all liability unless and until it has been issued with formal confirmation of that completion . In addition , when , as in the present case , any incidents or accidents occur , such as subsidence capable of undermining the solidity of public or private edifices , the prefect remains empowered to intervene , even if he has already issued formal confirmation of completion of the work required for the closure of the mine , for as long as the operator holds the mining concession . It follows from the documents in the case file that , whilst some of the mines enumerated in LAW order appealed had been the subject of an abandonment procedure , as had been confirmed by ORG , none of the corresponding concessions , at the date of the order appealed , had expired or had been the subject of a renunciation procedure accepted by the minister , such express acceptance alone being capable , contrary to what has been argued in a new memorial filed DATE before the hearing , regardless of the date of that acceptance , of giving full effect to any renunciation . Accordingly , the prefects of GPE , GPE and ORG were lawfully entitled to require the operator to take the necessary measures to prevent repetition of land subsidence .", "Sixthly , in accordance with Articles CARDINAL and CARDINAL of LAW , the administrative authorities are entitled to require the operator to take any measures that may be required for the protection of the objectives of public health and safety and the solidity of edifices , as provided under LAW . Those measures may consist both of studies for the purpose of analysing and enumerating the risks of incidents and of work for the purposes of prevention or remediation .", "...", "The company ORG is not justified in seeking the annulment of the inter - prefectoral order of CARDINAL DATE and the Minister 's implied decision of rejection ... ”", "In DATE , when the discontinuance of the applicant company 's mining operations was announced , the procedures of abandonment and renunciation were governed by ORG DATE and CARDINAL of LAW and Decree no . CARDINAL of CARDINAL DATE concerning mining and quarrying regulations . LAW stipulated at the time as follows :", "“ When operations are abandoned on the expiry of a concession or of a prospecting or operating licence , or , in the case of segment - based operations , at the end of the operations in each segment , the holder of the concession or licence shall be required to carry out work for the purpose of protecting the interests mentioned in LAW , as stipulated by the prefect on the proposal of the mining service after consultation of the municipal council for the locality concerned . The rehabilitation , in particular for agricultural purposes , of the sites and places affected by the work and by installations of any kind that have been erected for operations and prospecting , may be prescribed ; this shall be mandatory in the case of quarries . These provisions shall be applicable to the work provided for in LAW .", "In the event of failure to carry out the prescribed work , it shall be completed on the initiative of the authorities and at the expense of the concession - holder or offender .", "Municipalities and départements shall have a right of pre - emption in the event of the sale of disused quarries that have been operated on their territories . ”", "LAW provided as follows :", "“ If work related to mine prospecting or operating is capable of undermining public health and safety , essential features of the surrounding environment , whether land or sea , the conservation of the mine or another mine , the security , health and safety of mine workers , the conservation of communication routes , the solidity of public or private edifices , or the use , flow or quality of water of any kind , provision shall be made by the prefect , if need be of his own motion and at the expense of the prospector or operator . ”", "Section CARDINAL of LAW ( Law no . CARDINAL ) of DATE amended LAW by inserting , after its first paragraph , CARDINAL paragraphs which read as follows :", "“ In all cases , the holder of the concession or licence shall make an assessment of the cumulative effects of the work on the presence , accumulation , emergence , volume , drainage and quality of water of any kind , shall assess the foreseeable consequences of the abandonment of the work or of the operations for the situation thus created and for the uses of the water , and shall indicate the remedial measures envisaged .", "After consulting the local authorities concerned and hearing representations from the concession or licence holder , the prefect shall prescribe the work required of the holder in order to restore to their previous state , preserve in their current state or adapt as needed , the essential characteristics of the aquatic environment and the hydraulic conditions for the purposes of fulfilling the objectives provided for in section CARDINAL of LAW ( Law no . CARDINAL ) of DATE . ”", "In addition , the second paragraph of LAW was supplemented by a sentence which read as follows :", "“ Payment into the hands of a public accountant of the sums necessary for the performance of the work imposed in accordance with the previous paragraph may be demanded under the conditions provided for in LAW above - mentioned PERSON no . CARDINAL of DATE . ”", "Subsequently , Law no . CARDINAL of DATE , amending certain provisions of LAW , removed those CARDINAL provisions and replaced them by Articles CARDINAL and CARDINAL as follows :", "“ Prospecting and mining work shall comply with the restrictions and obligations pertaining to the health and safety of workers , public health and safety , the essential features of the surrounding environment , whether land or sea , the solidity of public or private edifices , the conservation of communication routes , the mine and other mines , and more generally archaeological interests and the interests enumerated in the provisions of section CARDINAL of LAW of DATE , section CARDINAL of the Law of CARDINAL DATE reorganising the protection of natural monuments and sites of an artistic , historical , scientific , legendary or picturesque nature , LAW no . CARDINAL of DATE concerning the protection of nature , section QUANTITY of LAW ( Law no . CARDINAL ) of DATE , as well as to the agricultural interests attaching to sites and places affected by such work and by mining installations .", "When the interests mentioned in the previous paragraph are put at risk by such work , the administrative authority may require the prospector or mine operator to take any measures for the purposes of ensuring the protection of those interests within a given time - limit .", "In the event of failure to fulfil these obligations by the expiry of the allotted period , the administrative authority shall take the initiative of having the prescribed measures executed , at the expense of the prospector or operator . ”", "“ If appropriate , at the end of each segment of work and , at the latest , when the operations are discontinued and the work halted , the prospector or operator shall give notice of the measures that he intends to take in order to protect the interests mentioned in LAW , for the purpose of putting an end , in general terms , to any adverse effects , disorder or disturbances of any kind that may be generated by the said activities and to make provision , if appropriate , for the possible resumption of operations .", "In all cases , the prospector or operator shall make an assessment of the effects of the work on the presence , accumulation , emergence , volume , drainage and quality of water of any kind , shall assess the consequences of the discontinuance of the work or of the operations for the situation thus created and for the uses of the water , and shall indicate the remedial measures envisaged .", "The declaration shall be made no later than the date of expiry of the mining concession .", "Failing that , the administrative authority shall remain empowered after the said date to prescribe the necessary measures .", "Having regard to that declaration , and after consulting the municipal councils of the localities concerned and hearing representations from the prospector or operator , the administrative authority shall prescribe , as necessary , any requisite measures taken and conditions of execution that have not been sufficiently indicated or that have been omitted by the declarant ...", "Any failure to take the measures provided for in the present article shall result in their execution on the initiative of the authorities , at the expense of the prospector or operator .", "Payment into the hands of a public accountant of the sums necessary for that execution may be demanded and , if necessary , collected in the manner of debts other than those related to taxation or ORG property .", "When the measures provided for by the present article , or those prescribed by the administrative authority under the present article , have been executed , the administrative authority shall issue the prospector or operator with its formal confirmation .", "That formality shall put an end to the supervision of the mines , as provided for in LAW .", "However , as regards the activities governed by the present Code , the administrative authority may intervene , in the context of the provisions of LAW , until the expiry of the mining concession . ”", "Decree no . CARDINAL - CARDINAL of CARDINAL DATE , issued after consultation of the ORG d'Etat , pertaining to the opening of mines and mining regulations , was adopted for the implementation of those provisions . Article CARDINAL , paragraph CARDINAL , and LAW that decree provide as follows :", "“ After arranging for verification of the measures taken by the operator , and if appropriate indicating their compliance or prescribing additional measures , the prefect shall issue formal confirmation , by way of an order ( arrêté ) , of the final discontinuance of the work and the decommissioning of the installations . ”", "“ The administrative supervision and the mining regulations shall cease to take effect on DATE that the operator is issued with formal confirmation that the work has been carried out , or when the work executed on the initiative of the authority has been completed .", "However , the prefect shall be empowered , except in cases where activities other than those covered by LAW are substituted in the place of the discontinued work or decommissioned installations , to take , in the context of the present part hereof , any measures that may be rendered necessary by incidents or accidents attributable to former mining work , when such events are capable of damaging the interests protected by LAW , until the expiry of the mining concession . ”", "LAW no . CARDINAL of DATE pertaining to mining concessions provided as follows :", "“ Applications for renunciation of a mining concession shall be lodged with the minister responsible for mining .", "They shall be processed , depending on each case , as stipulated in Articles CARDINAL and CARDINAL above .", "Acceptance of renunciation shall be subject , if appropriate , to the prior execution of the prescribed regulatory measures . Subject to this proviso , it shall be automatic in the event of total renunciation . Acceptance of renunciation shall be given in an order of the minister responsible for mining . ”", "Lastly , under PERSON no . CARDINAL of DATE concerning liability for damage resulting from mining and the prevention of mining - related risks after discontinuance , the presumption of mining liability has been extended in so far as the permanent liability of the former concession - holder is now presumed . The said PERSON further imposes an obligation on the former mine operator to pay an equalising contribution to the financing of public expenses for a period of DATE . Article CARDINAL of LAW now provides as follows :", "“ The prospector or operator , or failing that the holder of the mining concession , shall be liable for any damage caused by its activity . It may , however , be released from liability if it can adduce evidence of an external cause . Such liability shall not be confined to the area covered by the mining concession , nor to the term of validity of that concession . In the event of the disappearance or default of the liable party , the ORG shall stand surety for the reparation of the damage mentioned in the first paragraph ; it shall be subrogated to the rights of the victim against the liable party . ”", "The relevant domestic law and practice are partly described in GPE v. GPE ( [ ORG ] , no . ORG , ECHR CARDINALVI ) , and the status of members of the administrative courts is dealt with in some detail in DATE of that judgment . The provisions governing their status are laid down in Book CARDINAL of the Administrative Courts Code , LAW of which specifically concerns the ORG d'Etat . Under that LAW , which is headed “ General Provisions ” , provides as follows :", "“ The status of members of the ORG d'Etat shall be governed by the present Book , and , in so far as they are not in contradiction therewith , by the provisions governing the civil service . ”", "“ No member of the ORG d'Etat shall be entitled , in support of a political activity , to invoke his or her membership of the PERSON d'Etat . ”", "“ All members of the ORG d'Etat , whether serving in the PERSON or assigned to external duties , shall avoid expressing views of a political nature that are incompatible with the duty of discretion inherent in their functions . ”", "LAW under the same Title is headed “ Appointments ” and codifies the rules concerning the recruitment of members of the ORG d'Etat described in the ORG judgment ( § CARDINAL ) . Articles L. CARDINAL - CARDINAL , CARDINAL - CARDINAL and CARDINAL restate that the Vice - President of the ORG d'Etat , the division presidents and the senior members ( conseillers d'Etat , who have to be DATE ) are appointed by a decree adopted in ORG , on the proposal of the Minister of ORG . LAW concerns appointments directly from outside and reads as follows :", "“ Direct appointments from outside to positions of senior member ( conseiller d'Etat ) and of maître des requêtes may be made only after the opinion of the Vice - President of the ORG d'Etat has been obtained .", "That opinion shall take into account the previous functions performed by the nominee , his or her experience , and the requirements of the institution , as reported on an DATE basis by the Vice - President of the PERSON d'Etat ; the substance of that opinion in respect of appointments made shall be published in ORG at the same time as the notice of appointment .", "The opinion of the Vice - President shall be transmitted to the person concerned , at his or her request . ... ”", "LAW under the same ORG is headed “ Discipline ” and stipulates in LAW that disciplinary measures are taken by the authority responsible for making appointments upon the proposal of PERSON , after obtaining the opinion of the advisory board . However , warnings and reprimands may be issued , without consulting the advisory board , by the Vice - President of the PERSON d'Etat .", "The regulatory provisions concerning the status of members of the ORG d'Etat are to be found in Articles R CARDINAL - CARDINAL et seq . of ORG .", "The relevant provisions of LAW concerning the judicial , administrative and legislative functions of the ORG d'Etat read as follows :", "“ The PERSON d'Etat is the supreme administrative court . It shall rule independently on appeals on points of law lodged against last - instance decisions by the various administrative courts , and on appeals falling within its first - instance jurisdiction or jurisdiction to hear full appeals . ”", "“ The PERSON d'Etat shall participate in the preparation of Acts ( lois ) and PERSON ( ordonnances ) . Draft texts emanating from the Government shall be referred to it by the Prime Minister . The PERSON d'Etat shall give its opinion on draft decrees and on any other draft texts in respect of which its intervention is required by constitutional , legislative or regulatory provisions , or which are submitted to it by the Government . When a draft text is submitted to it , the PERSON d'Etat shall give its opinion and propose any amendments that it may deem necessary . In addition , it shall prepare and draft texts in response to specific requests . ”", "“ The PERSON d'Etat may be consulted by the Prime Minister or ministers on any difficulties that may arise in administrative matters . ”", "“ The PERSON d'Etat shall be entitled , of its own motion , to draw to the attention of the executive any reforms of a legislative , regulatory or administrative nature that it may deem to be in the public interest . ”", "“ The Vice - President of the ORG d'Etat may , at the request of the Prime Minister or a minister , appoint a member of the PERSON d'Etat to carry out a fact - finding mission . The Vice - President may , at the request of ministers , appoint a member of the PERSON d'Etat to assist their officials in drafting specific texts . ”", "The relevant provisions of ORG concerning the organisation and functioning of the ORG d'Etat are as follows :", "“ The presidency of the ORG d'Etat shall be held by the Vice - President . ORG of the LAW d'Etat may be presided over by the Prime Minister , and , in his absence , by the Minister of ORG . ”", "“ The ORG d'Etat shall consist of a ORG and administrative divisions . ”", "“ Senior members ( conseillers d'Etat ) in permanent service shall be assigned to an administrative division or to ORG , or simultaneously to an administrative division and ORG , or simultaneously to ORG and another administrative division , or to CARDINAL divisions including ORG and ORG . The deputy presidents and the presidents of sections of the ORG shall be assigned solely to that ORG ; they may however be assigned to ORG . ”", "“ The maîtres des requêtes and auditeurs shall be assigned both to an administrative division and to ORG . However , ( a ) the maîtres des requêtes and auditeurs responsible for running the documentation centre may , as appropriate , be assigned only to ORG or only to an administrative division ; ( b ) the maîtres des requêtes and auditeurs who have served for DATE in the PERSON d'Etat shall be assigned only to ORG . ”", "“ The assigning of a member of the ORG d'Etat to an administrative division shall entail , in addition to his or her contribution to the work of that division , his or her participation in the performance of the administrative activities referred to LAW , of the present Book . ”", "“ The ORG d'Etat shall consist of CARDINAL administrative divisions :", "Interior , ORG , ORG , Social , and ORG . ”", "“ Cases originating from the various ministries shall be distributed between the first CARDINAL of those divisions in accordance with the provisions of an order of the Prime Minister and of the Minister of ORG .", "All cases involving a particular ministry shall be referred to the same division .", "However , the examination of certain categories of cases , in particular those concerning the civil service , may be assigned to a specific division , regardless of the ministry from which they originate . ”", "..." ]

[ "6" ]

[ "6-1" ]

[]

[ "6" ]

[ "6-1" ]

[]

[ "The applicant was born in DATE and lives in PERSON .", "After last being seen in the applicant ’s house on DATE , Mr GPE , the applicant ’s acquaintance , disappeared . On several occasions DATE the applicant explained to the police that he was unaware of Mr ORG ’s whereabouts following his departure from the house .", "On DATE the police seized from the applicant ’s house a knife and several objects spotted with a brown substance . According to an expert assessment obtained in DATE , these spots were human blood that probably belonged to Mr GPE", "On DATE the applicant confessed that he had accidentally killed Mr O.S during a drinking party . He had then dismembered the body , packed it in sacks and disposed of it in LOC . On the same date criminal proceedings were instituted against him on suspicion of murder . The applicant was taken to the river bank to point out the place where he had dumped the sacks . However , no body parts were found .", "On DATE the applicant was detained as a criminal suspect .", "On DATE the investigator brought formal charges against the applicant for murder .", "On DATE the applicant was released after giving an undertaking not to abscond .", "On DATE the applicant informed the Town and ORG that he had confessed to having killed Mr GPE under torture . He further submitted that in reality Mr PERSON had apparently been killed by CARDINAL masked robbers , who had broken into his house during the drinking party on DATE and knocked the applicant unconscious . He had kept this story secret fearing reprisals by the robbers .", "DATE , on CARDINAL occasions , criminal proceedings against the applicant were suspended for periods ranging from DATE to DATE on account of his ill - health or for unexplained reasons . At the same time , certain investigative actions , such as the examination of witnesses , were carried out during the periods when the investigation was officially suspended .", "On DATE the applicant was committed for trial .", "DATE the prosecution withdrew the case file from the court on four occasions for the rectification of procedural omissions . On DATE the applicant was committed for trial for the fifth time .", "On DATE human bones were retrieved from ORG . On DATE the prosecution withdrew the case file from the court in order to verify whether these bones belonged to Mr GPE", "On DATE ORG authorised the applicant to be remanded in custody for DATE .", "On DATE ORG , following a hearing held in the presence of the applicant and his lawyer , authorised that pending the outcome of pre - trial investigation the applicant be detained for a maximum period of DATE , on the grounds that there was a serious suspicion that he had committed the offence with which he had been charged and that during the pre - trial proceedings he had changed his place of residence and attempted to influence a witness .", "On DATE ORG refused an application for bail lodged by the applicant . On DATE ORG informed the applicant that it was not competent to deal with bail applications while the case was at the investigation stage .", "On DATE the case file and a new bill of indictment were sent to ORG .", "On DATE the prosecutor withdrew the case for the rectification of omissions . The case was referred back to ORG on DATE .", "On DATE ORG scheduled the case for trial proceedings , reviewed the decision to hold the applicant in custody and found no reason to release him . In DATE ORG held CARDINAL hearings .", "On DATE ORG decided that further investigations were called for and remitted the case to the prosecution . On DATE the court rejected an application by the applicant for his release on bail and authorised his detention pending the above - mentioned investigations .", "NORP The applicant appealed against the decision to extend his detention . On DATE ORG ( PERSON суд PERSON області , hereafter “ the Court of Appeal ” ) found that it was not competent under the law to deal with this appeal .", "On DATE the case was referred back to ORG for trial .", "DATE ORG scheduled CARDINAL hearings . CARDINAL of them were adjourned on account of the prosecutor ’s failure to appear . CARDINAL was adjourned on account of the failure to appear by the prosecutor and the applicant ’s lawyer .", "On DATE ORG ordered the applicant ’s release on bail .", "On DATE ORG ordered an additional assessment to be carried out by a genetics expert .", "On DATE ORG requested the expert to expedite the assessment .", "On DATE the expert assessment was carried out and on DATE the report was delivered to ORG .", "On DATE the hearing was adjourned until DATE to summon experts . The experts failed to appear on this date .", "On DATE ORG reminded the experts of their obligation to appear at hearings .", "On DATE ORG examined CARDINAL experts and a witness and ordered a further assessment by a commission of experts .", "On DATE ORG addressed the prosecutor by letter demanding the submission of material evidence for expert assessment . On DATE ORG sent a reminder .", "On DATE ORG made enquires of the expert as to the status of the assessment .", "On DATE the assessment was carried out .", "DATE ORG scheduled CARDINAL hearings . CARDINAL of them were adjourned on account of the prosecutor ’s failure to appear . By letters of CARDINAL DATE and CARDINAL October CARDINAL ORG reminded the prosecutor of his duty to appear for hearings .", "On DATE ORG remitted the case for additional investigation . ORG referred , in particular , to the failure of the prosecution to carry out a comprehensive inquiry into the applicant ’s allegation that he had confessed to the killing of Mr ORG under duress .", "On DATE the ORG quashed this decision , having found that the shortcomings of the investigation of the murder were such that they could be addressed at the trial stage by examination of witnesses and other evidence in court .", "On DATE ORG remitted the case for additional investigation , referring to numerous procedural shortcomings in the carrying out of the investigation , the handling of evidence and the drafting of procedural documents . The court noted , in particular , that the investigation had been suspended on several occasions for no reason or in connection with the applicant ’s ill - health , despite the fact that there was no relevant medical documentation attached . Furthermore , during these periods the authorities continued with their investigations .", "According to the case file materials , the proceedings are currently pending .", "According to the applicant , on DATE he visited public baths with GPE GPE and GPE , his relatives .", "Shortly after TIME , immediately after he had returned home , the applicant was seized by CARDINAL police officers and taken to ORG ( ORG міськрайонний відділ УМВС України в PERSON області , hereafter “ the Police Department ” ) . There the police officers beat him with their fists and truncheons and stamped on his feet , demanding that he confess to the killing of PERSON O.S. At QUANTITY on DATE the applicant , completely exhausted , fell unconscious and was placed in a police cell for temporary detainees .", "Shortly after TIME an ambulance arrived . The applicant complained about pain in the heart and a headache and was administered treatment for low blood pressure . The applicant was further detained .", "On DATE investigator PERSON proposed that the applicant sign an acknowledgement that he had been properly arrested on DATE for swearing in public and that he had no claims against the police . The applicant agreed , allegedly hoping that his suffering would end .", "On DATE the applicant was brought before ORG , which sentenced him to CARDINAL days’ administrative arrest ( адміністративний арешт ) in ORG ( ORG тимчасового тримання , hereafter “ the ORG ” ) for petty hooliganism on DATE .", "According to the applicant , DATE he was taken to ORG , beaten , threatened and urged to confess to the killing . On DATE the applicant told the police that Mr ORG had apparently been killed by CARDINAL masked robbers . However , the officers continued to demand that the applicant confess that PERSON PERSON had been killed by him . As DATE of the applicant ’s detention approached , the pressure was intensified . On DATE the applicant pleaded guilty to the murder of Mr GPE", "On TIME applicant was formally released . However , the police in fact continued to keep him in some vacant offices in ORG , until on DATE he was officially detained as a criminal suspect .", "DATE . On DATE the applicant underwent an assessment by a medical expert of ORG ( GPE бюро судово-медичних експертиз ) . The examination revealed CARDINAL large bruises ( QUANTITY each ) in the applicant ’s groin area , on his thighs and shoulders . The expert concluded that these bruises could have resulted from a beating as well as from a fall . He further found it impossible to determine the probable date on which the bruises had been sustained , as they could remain on the body for CARDINAL and a half months .", "On DATE the applicant was admitted to hospital on account of stress - associated asthenia ( a personality disorder , characterised , in particular , by insomnia , anxiety , headache and bodily weakness ) . On DATE the applicant returned home .", "On DATE a commission of experts analysed the medical documents relating to the applicant ’s injuries . It confirmed the earlier findings by the single expert and noted that , regard being had to the number of bruises and their diverse localisation ; they were unlikely to result from a single fall .", "On DATE the applicant lodged a criminal complaint against police officers for ill - treatment . The complaint was addressed to GPE and Sumy Regional Prosecutors .", "On DATE , on the basis of the statements of CARDINAL police officers denying subjecting the applicant to any ill - treatment and the fact that during his questioning as a suspect on DATE the applicant had not complained of any police violence , no prima facie case of ill - treatment was found and the inquiry into the applicant ’s complaint was discontinued .", "On DATE the applicant was given access to the above decision . On DATE he challenged it before ORG .", "On DATE ORG quashed the decision of CARDINAL DATE , finding that further inquiries were called for . It noted , in particular , that the police officers had been questioned before the formal commencement of the inquiry . Moreover , the investigator had failed to question persons listed in the applicant ’s complaint who could allegedly confirm the applicant ’s ill - treatment ; to examine the circumstances of the applicant ’s stay at ORG before his official arrest ; or to determine how the applicant had sustained his injuries .", "On DATE the investigator decided that there was no prima facie case of ill - treatment .", "On DATE ORG quashed this decision on the ground that the investigating authorities had failed to follow the instructions set out in its decision of DATE .", "In the course of the additional inquiry , ORG questioned the officers who had called the ambulance for the applicant on DATE , who could not recall any details ; the members of the voluntary ORG guard , who confirmed having arrested the applicant at TIME ; the ambulance doctor , who stated that she had not examined the applicant ’s body on account of injuries ; and the medical expert , who confirmed the findings of his assessment of CARDINAL DATE . On CARDINAL DATE on the basis of this evidence and on the grounds set out in the decision of CARDINAL DATE , a fresh decision was taken not to initiate any criminal proceedings .", "On DATE this decision was quashed by ORG . The court found that the inquiries had been conducted in a perfunctory manner . It instructed the investigating authorities , in particular , to question the persons who had seen the applicant on DATE at the public baths ; the persons who had shared the cell with the applicant in ORG ; and the applicant ’s neighbours .", "On DATE it was decided not to institute criminal proceedings with reference to essentially the same grounds as before .", "On DATE ORG found that the prosecution had failed to comply with its earlier instructions . Referring to the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) , the court noted that the prosecution had a duty to determine whether the applicant had sustained injuries resulting from his treatment by the police .", "ORG appealed against the court ’s decision .", "On DATE ORG rejected the prosecution ’s appeal and upheld the decision of CARDINAL October DATE .", "On DATE , DATE , CARDINAL May , CARDINAL DATE and DATE ORG again refused to institute criminal proceedings .", "On DATE , DATE , DATE , DATE and DATE respectively ORG quashed these decisions referring to the cursory analysis of various sources of evidence and the failure of the investigation to establish a probable cause of the applicant ’s injuries .", "On DATE a new decision not to institute criminal proceedings was taken . It was based on essentially the same evidence as before . Additionally , the investigator also explained why , in his opinion , further measures demanded by the court were either unavailable or irrelevant . For instance , it was no longer possible to find the objects with which the applicant could have purportedly been beaten .", "On DATE ORG quashed this decision .", "DATE . By its subsequent decisions dated CARDINAL DATE and CARDINAL DATE the ORG further refused to institute criminal proceedings .", "These decisions were annulled by ORG on DATE ( upheld on appeal on DATE ) and DATE ( upheld on DATE ) , respectively .", "On DATE the Prosecutors’ Office yet again refused to institute criminal proceedings . In addition to the reasons recited earlier , this decision referred , in particular , to the testimonies of GPE GPE and GPE who stated that they had seen no injuries on the applicant ’s body in the public baths . The prosecution found this evidence unreliable , since the witnesses were related to the applicant . Moreover , according to the attendant at the baths , she did not remember ever having seen the applicant in the public baths . As regards the testimonies by the applicant ’s neighbours , they clearly recalled seeing him back at home on DATE . Their recollections concerning his presence at home DATE were blurred .", "The DATE Office further stated that according to ORG visits journal , the applicant had entered ORG at TIME on DATE . The journal contained no record of his subsequent departure , apparently as a result of the fact that the door guard forgot to make the relevant entry . On that date the applicant was questioned by investigator PERSON O.S. ’s disappearance . After the questioning , the applicant felt ill and was offered to stay in a police cell to recuperate . On DATE at TIME an ambulance arrived to treat the applicant for blood - pressure complaints . Subsequently he felt better and left the cell by CARDINAL a.m. on DATE . At QUANTITY on DATE members of the voluntary ORG guard ( GPE « Громадський правопорядок ORG ) spotted the applicant who , apparently under the influence of alcohol , was swearing in a public street . As the applicant refused to cease his disorderly conduct in response to their demands , the guards took him to ORG . A report of an administrative offence was drafted and the applicant was detained in the ORG . According to applicable regulations , the staff of the ORG should have organised a medical examination of the applicant to detect any injuries or sickness before placing him in the ORG . No injuries were recorded on his body . However , since the applicant lodged no health - related complaints , the examination could have been cursory . In this connection it was not possible to rule out that the applicant ’s bruises could have been sustained by DATE on DATE , shortly before he had been taken to the police , as at the time he was apparently under the influence of alcohol . At the same time , the applicant ’s alcohol level was not checked , as he was not charged with being drunk in a public place . CARDINAL March CARDINAL the applicant was DATE checked out from his cell by officer PERSON for TIME at a time . These check - outs were for the purposes of the applicant ’s engagement in community service or for discussions on public morale . On DATE the applicant voluntarily confessed to having killed Mr GPE DATE at TIME the applicant was released .", "On DATE ORG quashed this decision , referring to the fact that the investigation had still failed to comply with all its instructions and in order to determine whether the ORG was responsible for the applicant ’s injuries .", "On CARDINAL occasions in the course of the investigation ( in DATE , DATE and DATE ORG also separately addressed ORG instructing it to take measures in respect of the continued non - execution of the court ’s instructions by the investigating authorities . Referring to the cases of PERSON v. GPE ( cited above ) and PERSON v. GPE , ( no . CARDINAL , DATE ) the court found that the criminal inquiry conducted had not been sufficiently thorough .", "On DATE ORG of Appeal quashed the decision of DATE and remitted the case for fresh consideration in first instance . According to the case - file materials , the proceedings are currently pending .", "From DATE to CARDINAL DATE the applicant was remanded in custody . During certain periods the applicant was held in ORG ( PERSON слідчий ізолятор , hereafter “ the Sumy SIZO ” ) . These periods were as follows : CARDINAL DATE to DATE ; CARDINAL to DATE ; CARDINAL to DATE , DATE to CARDINAL DATE ; CARDINAL to DATE ; CARDINAL to DATE ; DATE to DATE and DATE to CARDINAL DATE . The remainder of the time the applicant was held in GPE .", "DATE . In DATE the authorities were informed that he suffered from several chronic conditions , in particular , osteochondrosis , secondary radicular syndrome , myopia , cerebral atherosclerosis , hypertension and adenoma of the prostate .", "According to the applicant , being in detention had negative effects on his health . In particular , he began suffering from an asthmatic complaint as a consequence of being exposed to passive smoking in the cell . Furthermore , good quality medical assistance was not always readily available to him , even though he was suffering from numerous chronic conditions . Finally , medications were frequently supplied to the applicant by his sister , as the detention facility lacked them . Sometimes his sister was not informed in good time that further medications were needed .", "In DATE the applicant consulted a doctor and was treated for allergic dermatitis .", "In DATE the applicant consulted a doctor and was treated for cystitis .", "On CARDINAL occasions throughout the period of his detention the applicant was tested for tuberculosis and other infections .", "After his release and until DATE the applicant was treated in hospital twice : DATE for dermophitia and CARDINAL and DATE for adenoma .", "Relevant provisions of the LAW and LAW can be found in the judgment in the case of PERSON v. GPE ( no . GPE , § § CARDINAL - CARDINAL , DATE ) ." ]

[ "13", "3", "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE . He was represented before the ORG by PERSON , a lawyer practising in ORG . The respondent Government were represented by PERSON , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant entered GPE on DATE . He applied for a permanent residence permit , based on his marriage to a NORP national , on DATE .", "In support of his application the applicant stated , inter alia , that he had met his wife in DATE , at which time he had been living with his family in GPE , GPE and working as a machine operator at a pharmaceutical factory . After a period of time he had moved in with her and the couple had subsequently married at ORG in GPE on DATE . His family had accepted the relationship and permission to marry had been sought from his uncle , who was living in GPE and who had become the head of the family after the death , in DATE , of the applicant ’s father . His grandfather had been a “ tribal chief ” . His father had been educated and the family had been living in town . His mother was residing in GPE and he had CARDINAL brothers and sisters , CARDINAL of whom were living in GPE .", "Interviewed together with the applicant , his wife stated , inter alia , that she had been working as a teacher in GPE since DATE and that before she met the applicant she had been acquainted with his sisters and the family . The applicant ’s father had apparently been a highly respected man and she had noticed that people recognised the family when their name was mentioned . All the applicant ’s siblings had received an education , all but CARDINAL of them probably as teachers . The family also had a family business that dealt in gems . In DATE the applicant had left his job at the pharmaceutical factory as it caused him to experience allergic reactions . He had thereafter not had any other employment but had assisted his mother who was building a house .", "On DATE the applicant was given a temporary residence permit in GPE which was subsequently extended until DATE . On CARDINAL DATE the applicant ’s wife gave birth to the couple ’s first child .", "In DATE the couple left for GPE , where they remained until DATE . While the applicant ’s wife returned to GPE in DATE , the applicant re - entered GPE on DATE . On DATE the couple ’s second child was born . The applicant was granted a permanent residence permit in GPE on DATE .", "As a result of tests performed in connection with her pregnancy , the applicant ’s wife in DATE learned that she was infected with the HIV virus . A test was subsequently performed also on the applicant which showed that he too carried the infection . The applicant was in this context , and subsequently on repeated occasions , informed of his obligations as a carrier of an infectious disease to refrain from conduct that could cause any further spreading of the disease . According to the evidence subsequently given by the applicant ’s ( then former ) wife at his trial , both she and the applicant were very well aware of the precautions they were obliged to observe , both with respect to each other and with respect to other persons who did not carry the infection .", "In DATE the applicant and his wife separated and the applicant moved out of the family home in the province of GPE and settled in GPE . The couple was divorced in DATE .", "On DATE ORG ( tingsrätten ) of GPE found the applicant guilty of making unlawful threats and of carrying knives in a public place . He was given a conditional sentence and ordered to pay a fine . No appeal was made against the judgment .", "In DATE reports were made to the unit for prevention of infectious diseases at the GPE hospital in GPE that the applicant was engaging in sexual contacts without disclosing to his partners that he was HIV positive . As a result , he was in DATE subjected to compulsory isolation pursuant to LAW , DATE ) . Following police investigation he was subsequently charged with having had unprotected sexual intercourse with CARDINAL different women without disclosing to them that he carried the HIV virus , thereby transmitting the infection to CARDINAL of them .", "During the preliminary investigation , the applicant provided further information on his family background and the circumstances surrounding his life in GPE . He stated , inter alia , that he grew up with his mother and stepfather in his home village . He first went to a primary school close to the village and later attended a catholic high school in GPE . He had CARDINAL full brothers and sisters and CARDINAL siblings on his father ’s side .", "By a judgment of DATE ORG found the applicant guilty of CARDINAL counts of aggravated assault and CARDINAL count of attempted aggravated assault and sentenced him to CARDINAL years’ imprisonment .", "Upon the applicant ’s and the prosecutor ’s appeal , ORG ( PERSON hovrätt ) , on DATE , upheld the applicant ’s conviction and sentence . Whilst not finding any evidence to show that the applicant had deliberately sought to transmit the virus to the victims , the court observed that he on repeated occasions had been informed of the special risk of transmitting the disease during unprotected sexual intercourse and that he accordingly had been well aware of that risk . Yet , the material before the court showed that he had not informed any of the CARDINAL victims of his condition . With respect to CARDINAL of the victims the unprotected sexual contacts had occurred on repeated occasions and in the remaining case on a single occasion when the victim was asleep and despite the fact that she at all previous times had insisted that the applicant should use a condom throughout the intercourse . Considering that the applicant had acted with exceptional ruthlessness and indifference towards his victims , the court concluded that that he would not have refrained from having sexual intercourse with them even if he had known that the disease would be transmitted . The applicant had accordingly shown the requisite mens rea under the applicable principles of NORP criminal law to be held criminally liable for having committed the crimes with intent .", "ORG further ordered the applicant ’s expulsion from GPE . Having found that the crimes for which he had been convicted justified a DATE prison sentence , the court had regard to the inconvenience caused by his expulsion and consequently fixed the sentence at DATE imprisonment . In regard to the expulsion , the court made , inter alia , the following observations . The applicant ’s only connection to GPE was the fact that his former wife and their CARDINAL children were residing in the country . He had no other link to the country ; he had not learned the NORP language or established himself on the NORP labour market and did not appear to have undergone any continuous prescribed treatment for his HIV infection in GPE . In regard to the applicant ’s contacts with his children , evidence given by his former wife revealed that he had been seeing them CARDINAL times per year and that he had otherwise only had contact with them by telephone . The former wife had maintained , particularly out of concern for the children , certain contacts with the applicant ’s relatives in GPE . There were thus contacts by letter and telephone between the children and the relatives . The court further found that the applicant had not been continuously residing in GPE for such a period of time that exceptional reasons were required for his expulsion . However , even if he were to be considered as having resided in GPE for such a continuous period , the court considered that , in view of the very serious nature of the offences and the applicant ’s unsettled conditions in the country , there were sufficiently strong reasons to expel him from GPE with a lifelong ban on his return . In this context , the court noted that the children ’s established contact with relatives in GPE would probably mean that the expulsion would not cause the contact between the applicant and his children to be severed . The court also stated that there was probably a significant risk that the applicant would relapse into the same type of criminal behaviour and that this factor strongly militated in favour of expulsion .", "The applicant appealed to ORG ( ORG domstolen ) . He submitted a statement of DATE by Mr PERSON , a psychologist at ORG ( Barn- och ungdomspsykiatriska mottagningen ) in GPE , according to which the applicant ’s former wife and their CARDINAL children had visited the clinic on QUANTITY occasions during DATE . Mr PERSON stated that the children had a strong emotional relationship to their father and that their need of continuous contact with him could not realistically be maintained should he be expelled to GPE .", "By a decision of DATE ORG refused the applicant leave to appeal against ORG judgment .", "During the applicant ’s time in prison , CARDINAL petitions have been made to the Government for a revocation of the expulsion order . They were rejected by decisions of DATE , DATE , DATE ( CARDINAL petitions ) and DATE respectively .", "In support of his requests for a revocation , the applicant submitted several statements . In a medical certificate of DATE , PERSON , chief physician at the HIV unit at ORG hospital and the physician responsible for the applicant ’s treatment during DATE , stated that the applicant had undergone anti - retroviral treatment , albeit irregularly , DATE and DATE , and had thereafter not been under treatment until DATE when DATE viral levels in his blood being very high and his immune system being severely weakened and “ at the level where AIDS complications usually appear ” – he had resumed his medication . The resumed treatment had been successful to the point where the HIV levels in the applicant ’s blood were no longer detectable . According to PERSON , his chances of receiving life - sustaining HIV treatment in GPE were very slim . Moreover , experience showed that the interruption of treatment of a patient like the applicant would lead to a relatively rapid deterioration of the immune system leading to the development of AIDS within DATE and death within DATE . In a further certificate of DATE PERSON reiterated his previous statements and added that the applicant ’s understanding and acceptance of his disease had improved and that the risk of his relapsing into his previous behaviour had to be considered as extremely small .", "In a statement , dated DATE , PERSON , a counsellor ( kurator ) at the HIV ward at the same hospital , stated that she had met the applicant regularly since DATE , during which time he had shown an increased understanding of his illness , his previous actions and his prevailing situation . PERSON concluded that there was no great risk that the applicant would relapse into his previous hazardous behaviour , as the root causes of that behaviour – fear that his illness would become known to other people , depression and alcohol abuse – had been removed .", "In submissions of CARDINAL DATE Mr PERSON , ombudsman at ORG for HIV - positive People ( Riksförbundet för hivpositiva ; RFHP ) , stated that the applicant had expressed anxieties about his impending expulsion , partly because of the lack of adequate treatment in GPE and partly because of the risk of his contact with his children being severed . The applicant had also mentioned that CARDINAL of his brothers had recently died from AIDS and that a sister was seriously ill due to an HIV infection .", "In a report of CARDINAL DATE ORG ( Kriminalvården ) stated that , after initially having been in a bad state , both mentally and physically , at the prison where he was serving his sentence , the applicant ’s situation had improved considerably . He was open and understanding about his illness and received continuous medical treatment . He also received regular visits once a month from his children , accompanied by his former wife , a contact which was very important both to him and the children .", "In submissions of CARDINAL , CARDINAL and CARDINAL DATE , respectively , a friend of the applicant ’s former wife , her psychiatric counsellor and her brother attested to the close relationship between the applicant and his children and the fact that they had met regularly at the prison .", "In a letter of CARDINAL DATE the applicant ’s former wife described her and the children ’s relationship to the applicant . She explained that since it had been easier for her to integrate on the labour market , the applicant had stayed at home with the children . Even after the separation and the applicant ’s move to GPE , they had remained in close contact , seeing each other as often as their financial situation permitted . They had ensured that the children spoke NORP ; the older child spoke NORP with the applicant whereas the younger child preferred NORP . During the applicant ’s serving of his sentence , they had visited him as often as possible , altogether on CARDINAL occasions . She further claimed that she could not afford regular visits to the applicant if he were to be expelled to GPE .", "In his latest application for a revocation of the expulsion order , submitted to the Government during DATE , the applicant maintained that , as from DATE , he had a new relationship with a NORP woman and that there was no risk that he upon release would relapse into the same type of criminal behaviour . The new relationship had apparently been established in DATE through the exchange of letters . The couple met for the first time in the prison in DATE and the woman had subsequently visited the applicant DATE . She had a metabolic disturbance and was consequently considerably overweight .", "On DATE , following the ORG ’s indication , under LAW , that it was desirable in the interests of the parties and the proper conduct of the proceedings before the ORG not to expel the applicant to GPE until further notice , the Minister of Justice decided to stay the enforcement of the expulsion order . The Minister further decided that the applicant upon his release from prison on the following day was to be taken into custody pursuant to chapter CARDINAL , sections CARDINAL and CARDINAL of LAW ( Utlänningslagen , CARDINAL ) on the ground that there was reason to believe that he would abscond .", "On DATE the applicant was released on probation . He remains in detention .", "In a report to the Government of DATE ORG in GPE , after consulting with medical doctors with experience of HIV / AIDS treatment at the NORP clinic in GPE , the head of ORG in GPE and CARDINAL of the latter ’s colleagues from other parts of the country , provided the following information . Both HIV treatment , in the form of anti - retroviral therapy , and medical care for persons suffering from an HIV infection or developed AIDS were available in GPE for those who could afford it . Anti - retroviral therapy and medical attention could be obtained in GPE and probably also in GPE in the north of the country . The physicians with whom the ORG had been in contact could not with certainty say that anti - retroviral therapy could be obtained in other parts of the country . So - called “ LOC ” , a test to establish the number of certain white blood cells , was available at CARDINAL hospitals in GPE and in all probability also at a medical centre in GPE in the north . Various types of antibiotics were available throughout GPE , also the most modern types suitable for persons suffering from allergy to penicillin . The cost of anti - retroviral therapy lay CARDINAL NORP shillings per month , to be compared with the minimum wage of a ORG employee which was MONEY ( MONEY approximately corresponded to QUANTITY ) . The cost of antibiotics and the treatment of different types of opportunistic diseases varied and was difficult to estimate but lay above MONEY per month . The cost of “ CDCARDINAL-count ” in GPE was MONEY .", "Pursuant to chapter CARDINAL , section CARDINAL of LAW ( ORG ) , a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a special consequence .", "Provisions on expulsion on this ground are laid down in LAW . According to chapter DATE , section QUANTITY , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied . Firstly , he must be convicted of a crime that is punishable by imprisonment . Secondly , he may only be expelled if he is in fact sentenced to a more severe punishment than a fine and if ( CARDINAL ) it may be assumed , on account of the nature of the crime and other circumstances , that he will continue his criminal activities in GPE or ( CARDINAL ) the offence , in view of the damage , danger or violation involved for private or public interests , is so serious that he ought not to be allowed to remain in the country .", "Furthermore , under chapter CARDINAL , section QUANTITY , when considering whether or not an alien should be expelled , the court shall take into account his links to NORP society . As regards aliens who are considered to be refugees , special rules apply . Moreover , the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision . Thus , pursuant to chapter CARDINAL , LAW , there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment . Further , a risk of persecution generally constitutes an impediment to enforcing an expulsion decision ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants were born in DATE , DATE , DATE and DATE respectively , live in PERSON , PERSON , GPE and PERSON respectively and are all members of PERSON , a PERSON - based non - governmental organisation .", "On DATE the first and the fourth applicants participated in a public gathering in the PERSON cel Mare park in PERSON on the occasion of the anniversary of the CARDINAL reunification of GPE with GPE . The demonstration had been authorised by GPE . At TIME the applicants were arrested and taken to the police station , where they were charged with resisting arrest and insulting police officers .", "In a video filmed by the applicants , CARDINAL of the police officers can be seen requesting identity papers from CARDINAL of the participants in the demonstration . After the identity card is presented to the police officer , CARDINAL of the police officers orders the applicants to follow him to the police station and the applicants comply without any resistance . The applicants were released TIME .", "On DATE ORG finally acquitted the applicants of all charges in view of a lack of evidence against them . The court found that the accusations made against the applicants were groundless as they were not confirmed by any of the witnesses .", "On an unspecified date one of the applicants lodged a criminal complaint against the police officers who had arrested them . However , on CARDINAL DATE the complaint was dismissed as manifestly ill - founded .", "On DATE a new Assemblies Act entered into force under which no authorisation was needed for spontaneous gatherings and for gatherings with a limited number of participants . On DATE , at TIME , the first , second and fourth applicants organised a demonstration in front of the residence of the President of GPE . According to them , they intended to express their joy at the entering into force of LAW and to encourage the people to assemble freely . After a short time the applicants were approached by several police officers who ordered them to leave . The applicants refused and argued that according to the new law they had a right to protest peacefully without any authorisation . Later the applicants were arrested and taken to the police station . They were held for TIME and charged with the offences of holding an unauthorised demonstration , resisting arrest and insulting police officers .", "On DATE ORG acquitted the applicants of all charges in view of a lack of incriminating evidence against them . The court found that the applicants had a legal right to protest in front of the residence of the President of GPE without any authorisation and that the charges concerning resisting and insulting police officers were groundless .", "On an unspecified date the applicants lodged a criminal complaint against the police officers who had arrested them . However , it was dismissed as manifestly ill - founded .", "On DATE the ORG company organised a celebration on the occasion of its fiftieth anniversary . A member of PERSON , ORG , who is not an applicant in this case , attempted to protest against censorship at ORG in front of the concert hall in which the celebration was taking place . He was draped in a banner bearing the inscription “ DATE of lies ” and was accompanied by the first , second and third applicants , CARDINAL of whom was filming the event .", "After approaching the concert hall , ORG was approached by a group of police officers who surrounded him and ordered him to vacate the premises of the concert hall . ORG and the CARDINAL applicants entered into a verbal clash with the police officers and refused to leave . They argued that they had the right to protest and that the actions of the police were unlawful . After TIME of dispute O.B. was physically attacked by a person in plain clothes . ORG and the applicants requested the assistance of the police and shouted that the attack had been provoked by the police . They were immediately arrested and taken to the police station , where they were charged with the offences of holding an unauthorised demonstration , resisting arrest and insulting police officers . They were released TIME .", "On DATE all the applicants and ORG were finally acquitted by ORG of all charges in view of a lack of incriminating evidence against them . The court reached this conclusion after viewing the video of the event and concluding that the applicants’ demonstration had been peaceful and that they had been attacked by a another individual .", "On an unspecified date the applicants lodged a criminal complaint against the police officers who had arrested them . However , it was dismissed as manifestly ill - founded .", "In DATE the Government decided to celebrate DATE exclusively on DATE , according to the old religious calendar , and to have a DATE tree installed in the central square of PERSON only in DATE so as to bypass the celebration of DATE on DATE by the adherents of the new religious calendar .", "In spite of that decision the PERSON local government , which was represented by a political majority different from that of the central Government , decided to install a Christmas tree in DATE and to organise celebrations on the occasion of the new religious calendar DATE . On DATE a truck transporting the municipality ’s DATE tree was stopped by the police and the tree was confiscated .", "In TIME of DATE a group of GPE members , including the first and second applicants , attempted to organise a protest demonstration in front of ORG in order to express their concern about the actions of the police . The first applicant was arrested on the street while walking towards the building of ORG carrying a small Christmas tree . He was taken to the police station and charged with the offence of organising an unauthorised demonstration . He was released TIME . The second applicant was near a trolleybus stop when a group of CARDINAL plain - clothes police officers forced him into a trolleybus . They cornered him and , in spite of his protests , released him TIME and several stops later . The applicants submitted a video of this .", "On DATE the first applicant was acquitted in view of a lack of incriminating evidence against him .", "On an unspecified date the first and second applicants lodged a criminal complaint against the police officers . However , on DATE the complaint was dismissed as manifestly ill - founded .", "On DATE the first applicant organised a protest demonstration in front of ORG together with CARDINAL participants who are not applicants in this case . The aim of the demonstration was to denounce the inaction of ORG in connection with abuses by the police . TIME the beginning of the demonstration the protesters were attacked by CARDINAL men wearing masks , who started to beat them up and spray them with tear gas . The protesters defended themselves and managed to immobilise CARDINAL attackers . CARDINAL of the attackers admitted to having been paid CARDINAL NORP lei ( MDL ) by an unknown person to participate in the attack . A police unit patrolling nearby did not intervene to put an end to the clash between the protesters and the attackers . The protesters called the police and requested the assistance of the police officers who were guarding ORG , but to no avail .", "According to the applicants , the organisers of the demonstration lodged a criminal complaint with ORG ; however , no action was taken . The applicants were unable to present proof that they had lodged the complaint and argued that the relevant documents had been seized by the police on the occasion of an unlawful search of GPE LOC .", "The Government disputed that the applicants had complained to ORG in respect of the events of DATE .", "Article CARDINAL of the LAW of GPE ( on freedom of opinion and of expression ) reads as follows :", "“ ( CARDINAL ) Each citizen is guaranteed freedom of thought and of opinion , as well as freedom of expression in public through words , images or other available means .", "( CARDINAL ) Freedom of expression shall not be prejudicial to the honour or dignity of others or the right of others to have their own opinion .", "( CARDINAL ) The law prohibits and punishes the calling into question and defamation of the ORG and the nation , calls to war and aggression , national , racial or religious hatred , and incitement to discrimination , territorial separatism , or public violence , as well as any other expression which endangers the constitutional order . ”", "Article CARDINAL ( on freedom of assembly ) provides :", "“ All meetings , demonstrations , rallies , processions or any other assemblies are free , but they may be organised and take place only peacefully and without the use of weapons . ”", "The relevant provisions of LAW of DATE read as follows :", "( CARDINAL ) ORG shall be conducted peacefully , without any sort of weapons , and the protection of participants and the environment must be ensured , without impeding the normal use of public highways , road traffic or the operation of businesses , and without degenerating into acts of violence capable of endangering public order or the physical integrity or life of persons or their property .", "Assemblies shall be suspended in the following circumstances :", "( a ) denial and defamation of the ORG and of the people ;", "( b ) incitement to war or aggression and incitement to hatred on ethnic , racial or religious grounds ;", "c ) incitement to discrimination , territorial separatism or public violence ;", "d ) acts that undermine the constitutional order .", "( CARDINAL ) ORG may be conducted in squares , streets , parks and other public places in cities , towns and villages , and also in public buildings .", "( CARDINAL ) It shall be forbidden to conduct an assembly in the buildings of public authorities , local authorities , ORG offices , courts or companies with armed security .", "( CARDINAL ) It shall be forbidden to conduct assemblies :", "( a ) within QUANTITY of the ORG building , the residence of the President of GPE , the seat of the Government , ORG and ORG ;", "( b ) within QUANTITY of the buildings of the central administrative authority , the local public authorities , courts , ORG offices , police stations , prisons and social rehabilitation institutions , military installations , railway stations , airports , hospitals , companies which use dangerous equipment and machines , and diplomatic institutions .", "( CARDINAL ) PERSON access to the premises of the institutions listed in subsection ( CARDINAL ) shall be guaranteed .", "( CARDINAL ) The local public authorities may , if the organisers agree , establish places or buildings for permanent assemblies .", "( CARDINAL ) Not DATE prior to the date of the assembly , the organiser shall submit a notification to ORG , a specimen of which is set out in the annex which forms an integral part of this LAW .", "( CARDINAL ) The prior notification shall indicate :", "( a ) the name of the organiser of the assembly and the aim of the assembly ;", "( b ) the date , starting time and finishing time of the assembly ;", "( c ) the location of the assembly and the access and return routes ;", "( d ) the manner in which the assembly is to take place ;", "( e ) the approximate number of participants ;", "( f ) the persons who are to be responsible for the proper conduct of the assembly ;", "( g ) the services the organiser of the assembly asks ORG to provide .", "( CARDINAL ) If the situation so requires , ORG may alter certain aspects of the prior notification with the agreement of the organiser of the assembly .", "( CARDINAL ) The prior notification shall be examined by the local government of the town or village at DATE of the assembly .", "( CARDINAL ) When the prior notification is considered at an ordinary or extraordinary meeting of ORG , the discussion shall deal with the form , timetable , location and other conditions for the conduct of the assembly , and the decision taken shall take account of the specific situation .", "( CARDINAL ) The local authorities may reject an application to hold an assembly only if , after consulting the police , they have obtained convincing evidence that the provisions of sections CARDINAL and CARDINAL will be breached with serious consequences for society .", "( CARDINAL ) A decision rejecting an application to hold an assembly shall be reasoned and presented in writing . It shall contain reasons for the refusal to issue the authorisation ...", "( CARDINAL ) The organiser of the assembly may challenge the refusal in the administrative courts .", "Section CARDINAL", "Participants in the assembly are required :", "( a ) to respect the present LAW and other laws referred to herein ;", "( b ) to respect the instructions of the organiser of the assembly , and decisions of the municipality or police ;", "...", "( e ) to leave the assembly if asked by the organiser , the municipality or the police . ”", "On DATE ORG adopted a new LAW under which no authorisation was needed for the holding of demonstrations with CARDINAL participants .", "The relevant provisions of LAW read as follows :", "( CARDINAL ) Illegal deprivation of liberty , other than kidnapping , shall be punishable by TIME of community work or imprisonment for DATE .", "( CARDINAL ) The same offence committed", "b ) DATE against CARDINAL or more persons ;", "d ) by CARDINAL or more persons ;", "shall be punishable by imprisonment for DATE .", "( CARDINAL ) Violation of the right to freedom of assembly by way of the illegal hindering of a demonstration , rally or act of protest , or the preventing of persons from taking part in them ... :", "a ) committed by an official ;", "b ) committed by CARDINAL or more persons ;", "c ) accompanied by acts of violence which do not pose a danger to life or health ,", "shall be punishable by a fine of CARDINAL NORP lei or by community work of TIME , or by imprisonment for DATE . ”", "The relevant provisions of LAW ( “ the CAO ” ) , in force at the material time , read :", "NORP The organisation and holding of an assembly without prior notification of ORG or without authorisation from the ORG , or in breach of the conditions ( manner , place , time ) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers ( leaders ) of the assembly in an amount equal to between MDL CARDINAL and CARDINAL . ...", "Active participation in an assembly referred to in paragraph CARDINAL of the present Article shall be punishable by a fine in an amount between MDL CARDINAL and CARDINAL .", "Resisting a police officer ... in the exercise of his or her duties of ensuring public order and the fight against crime shall be punishable by a fine of up to MDL CARDINAL or detention for DATE .", "Insulting police officers ... in the exercise of their duties ... shall be punishable by a fine of up to MDL CARDINAL or imprisonment for DATE . ”", "According to LAW who disobey in bad faith the lawful orders of police officers , or resist or insult police officers , may be detained until their case is examined by a court .", "The relevant provisions of PERSON no . CARDINAL ( DATE ) on compensation for damage caused by the illegal acts of the criminal investigation organs , prosecution and courts have been set out in this ORG ’s judgment in ORG v. GPE , no . CARDINAL , § DATE , DATE . In the case of PERSON v. ORG ( no . CARDINAL , DATE ) ORG found that a person could claim damages on the basis of PERSON no . MONEY ( DATE ) only if he or she had been fully acquitted of all the charges against him or her . Since Mr PERSON had been found guilty in respect of CARDINAL of the charges brought against him , he could not claim any damages ." ]

[ "11", "5" ]

[ "11-1", "5-1" ]

[]

[]

[]

[]

[ "The applicants are NORP nationals , who were arrested on suspicion of involvement in an illegal organisation . Subsequently , criminal proceedings were brought against them , which are , according to the information in the case files , currently pending before the domestic courts .", "The information concerning the applications , the dates of the applicants ' arrest , bills of indictment , decisions of the domestic courts and the total length of the proceedings , as submitted by the applicants , is detailed in the annexed table ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant is an NORP 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 .", "On DATE the ORG instituted preliminary investigations against the applicant on suspicion of having committed aggravated fraud ( schwerer FAC ) and fraudulent conversion ( PERSON ) . In particular , he was suspected of having manipulated a call for tenders ( ORG ) for the construction of a tunnel in favour of a specific company .", "On DATE the applicant was questioned by the Investigating Judge about these charges for the first time .", "Subsequently , the charges against the applicant were extended to CARDINAL counts of aggravated fraud and fraudulent conversion .", "In DATE the Investigating Judge appointed experts on geology and explosives .", "On DATE the Investigating Judge ordered the tapping of the applicant ’s telephone . On DATE the telephone tapping was terminated . Subsequently , the applicant introduced an application with ORG against this measure ( Application no . CARDINAL/CARDINAL ) , which was declared inadmissible by the Commission on DATE .", "In DATE and DATE CARDINAL reports by the court appointed experts on geology and explosives submitted their reports to ORG . CARDINAL on geology was submitted in DATE .", "In DATE ORG at ORG lodged the first bill of indictment . In DATE the second bill of indictment was lodged . ORG dismissed the applicant ’s objections ( Einspuch ) against these indictments .", "On DATE the trial before ORG commenced . On DATE , after CARDINAL court hearings , the applicant was convicted of CARDINAL counts of aggravated fraud and fraudulent conversion and acquitted of the other charges . He was sentenced to CARDINAL years’ imprisonment .", "On DATE ORG dismissed the applicant ’s plea of nullity , but granted the plea of nullity lodged by ORG and quashed the applicant ’s acquittal on CARDINAL charges . Although the applicant ’s conviction in respect of CARDINAL counts had become final , ORG remitted the case to ORG in respect of CARDINAL counts of fraud and fraudulent conversion . Thereupon , ORG resumed the preliminary investigations concerning these charges .", "On DATE ORG partially granted the applicant ’s request for the re - opening of the proceedings ( PERSON ) . On DATE ORG , on the applicant ’s appeal , ordered a complete retrial , including all charges against the applicant .", "On DATE the Innsbruck ORG acquitted the applicant of all the charges against him .", "Section CARDINAL of LAW ( PERSON ) , which has been in force since DATE , provides as follows .", "\" ( CARDINAL ) If a court is dilatory in taking any procedural step , such as announcing or holding a hearing , obtaining an expert ’s report , or preparing a decision , any party may submit a request to this court for the superior court to impose an appropriate time - limit for the taking of the particular procedural step ; unless sub - section ( CARDINAL ) of this section applies , the court is required to submit the request to the superior court , together with its comments , forthwith .", "( CARDINAL ) If the court takes all the procedural steps specified in the request within DATE after receipt , and so informs the party concerned , the request is deemed withdrawn unless the party declares within DATE after service of the notification that it wishes to maintain its request .", "( CARDINAL ) The request referred to in sub - section ( CARDINAL ) shall be determined with special expedition by a chamber of the superior court consisting of CARDINAL professional judges , CARDINAL of whom shall preside ; if the court has not been dilatory , the request shall be dismissed . This decision is not subject to appeal . \"" ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , was born in DATE and submitted that he was a ORG national . He was initially represented before the ORG by Mr G. ORG , a lawyer practising in GPE . On DATE the applicant appointed PERSON , a lawyer practising in GPE , to represent him in the remaining proceedings before the ORG . ORG ( “ the Government ” ) were represented by their Agent , Mr P. Clerides , Attorney - General of GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant entered the “ GPE ” ( “ GPE ” ) unlawfully in DATE and served a sentence of CARDINAL months’ imprisonment there after being convicted for possessing a false NORP passport .", "While in prison , the applicant applied to the office of the ORG High Commissioner for Refugees in GPE ( “ ORG ” ) for asylum .", "On DATE the applicant ’s asylum application was dismissed , apparently because he was not a ORG but a NORP national .", "The applicant lodged an appeal .", "The applicant entered GPE unlawfully on an unspecified date early in DATE . He was found by the police on DATE . The applicant did not have a passport on him but only a paper stamped by the “ GPE ” and dated DATE on which his personal details were written . The Government submitted that the applicant alleged that he did not know where his passport was . The applicant was arrested and after being convicted on DATE by ORG for entering the Republic illegally he was sentenced to CARDINAL months’ imprisonment . He was detained in FAC ( “ the LOC ” ) .", "On DATE , while the applicant was serving his prison sentence , detention and deportation orders were issued by the Director of ORG under section CARDINAL ( CARDINAL ) ( d ) of the Aliens and Immigration PERSON ( PERSON . CARDINAL as amended ) on the ground that the applicant was a prohibited immigrant . The applicant was to be deported to PERSON . The applicant submitted that he had never received notification of these orders or of any / the available remedies against them .", "By a letter dated DATE ORG informed the Attorney - General of the Republic that the applicant could not be deported as he did not have a passport or any other travel document and did not have a ticket or any money for the purchase of a ticket . He noted that efforts were being made to resolve the matter .", "By a letter dated DATE ORG informed ORG that the applicant was going to be released on DATE but could not be deported as he did not have a passport or any other travel document . It requested ORG to take the necessary steps to secure a PERSON travel document as a NORP travel document would not be accepted by the airlines travelling to PERSON or the transit countries .", "The Government submitted that on DATE the applicant was released after having received a pardon but was , however , re - arrested on the basis of the detention and deportation orders which had been issued against him on DATE . The applicant was transferred to the immigration detention facilities in FAC ) , where he was detained with a view to his deportation .", "The applicant submitted that he had never been released on pardon and that after serving his sentence he continued to be detained on the basis of the detention and deportation orders that had been issued in the meantime .", "In a letter dated DATE ORG informed ORG that it was impossible to obtain a ORG travel document for a number of reasons , such as the absence of NORP diplomatic missions in PERSON and the difficulties in proving to the ORG authorities that the applicant was indeed a ORG national . It was noted that a travel document could be issued by the NORP authorities once an airline ’s consent had been obtained to such a document , to send the applicant back to his country .", "In a letter dated DATE the ORG informed ORG of the applicant ’s asylum application , requested that deportation proceedings against the applicant be suspended , that the appropriate measures be taken for his release and that the applicant be allowed to remain in GPE pending the decision on his asylum claim .", "The applicant was released on DATE pending the examination of his asylum application and was granted a temporary residence permit until DATE .", "In a letter dated DATE , the ORG requested , that the applicant ’s residence permit be renewed for DATE pending the examination of his asylum claim . The residence permit was renewed until DATE .", "The ORG dismissed the applicant ’s appeal on DATE . It appears from this decision that although the applicant had initially claimed that he was a citizen of PERSON , in his interview with ORG officials on DATE he had changed his mind when an official had informed him that PERSON citizens were sent back to PERSON . The applicant had been unable to reply to basic questions concerning PERSON and had stated that he was in fact from GPE . Upon reviewing the case the ORG accordingly considered that the applicant ’s submission did not warrant a change of the original decision of DATE .", "On DATE the Director of ORG issued new detention and deportation orders against the applicant under section CARDINAL ( CARDINAL)(k ) of the Aliens and Immigration PERSON , on the ground that he was a prohibited immigrant . The applicant was to be deported to GPE .", "The applicant was arrested on DATE on the basis of these orders and was taken to the immigration detention facilities in FAC ) .", "On DATE the applicant filed a habeas corpus application before ORG ( first instance – application no . CARDINAL ) .", "On DATE the applicant withdrew the application following the authorities’ decision to release him in order to enable him to file a new asylum application . The applicant was released on the above date .", "On DATE the applicant submitted a new asylum application to ORG .", "On DATE the applicant filed an application for a temporary residence permit . In his application he gave the address of the hotel in GPE in which he was staying .", "On DATE a residence permit was issued for as long as the applicant had asylum seeker status .", "In a letter dated DATE ORG informed the applicant that an interview had been arranged for DATE . However , the authorities were not able to serve the applicant with the letter as he could not be found at the address he had given them . The applicant did not attend the interview .", "The applicant submitted that the hotel where he had been staying and which had been used as a residence for asylum seekers by ORG of ORG , had closed down in DATE following a fire , and that the authorities had been aware of this . He claimed that the authorities had had his telephone number .", "It appears from the case file that the applicant declared his change of address to the authorities on DATE .", "In a letter dated DATE , ORG informed the applicant that , having examined his file , it had decided to close it and suspend the examination of the asylum application by virtue of LAW ( A ) ( CARDINAL ) ( a ) of LAW of DATE ( Law CARDINAL ( I ) of DATE , as amended ) . It was noted that the applicant had not complied with the obligation deriving from section CARDINAL of LAW of DATE , according to which , in the event of a change of address , the applicant had to inform ORG either directly or through the district ORG . The applicant was requested to make arrangements to leave GPE DATE of receipt of the letter . The letter was sent to the address the applicant had given in his asylum application .", "The applicant was arrested on DATE by members of the Aliens and Immigration service . The Government submitted that the officers had entered the room with a search warrant in the course of an investigation concerning drug - related offences . Although no drugs had been found , upon verifying the applicant ’s personal details they realised he was in the Republic illegally . He was arrested as an illegal alien and taken to the detention facilities in FAC . The applicant submitted that such raids were common practice in hotels and residences where it was known that asylum seekers and immigrants were staying . Upon arresting him , the police had accused him of trying to hide from the NORP authorities and of changing address without informing them , which the applicant denied . He submitted that it was at this point that he had become aware of ORG decision to close his file . Lastly , the applicant claimed that the police had not allowed him to take any of his belongings , including the passport which he had in the meantime secured from PERSON through his family . His passport had thus been lost .", "On DATE the Director of ORG issued new detention and deportation orders against the applicant under section CARDINAL ( CARDINAL)(k ) of the Aliens and Immigration PERSON , on the ground that he was a prohibited immigrant . He was to be deported to PERSON . A letter was also addressed to the applicant on the same date informing him of the orders and giving reasons . The Government submitted that the applicant had been informed of the orders on DATE . The applicant submitted that the information had not reached him until DATE after his arrest , when he had sought help from a non - governmental organisation .", "On DATE the same non - governmental organisation lodged an appeal on behalf of the applicant with ORG decision to close his file . This was dismissed on DATE . The applicant was served with the decision on DATE .", "The applicant did not bring a recourse against this decision before ORG .", "In the meantime , on DATE the applicant brought a recourse before ORG ( revisional jurisdiction ) under LAW challenging the detention and deportation orders of DATE . In this it was stated that the applicant was a ORG national . The applicant claimed that in PERSON he had worked as the driver of the wife of the leader of CARDINAL of the warring parties and for this reason he had been tortured and persecuted during the civil war in PERSON . After having fled to GPE and then GPE , he had unlawfully entered the “ GPE ” and then GPE . In his written address in the proceedings before ORG the applicant stated that he had been informed by the police on DATE that deportation and detention orders had been issued against him , but had never been informed of the reasons for the orders in question or about the cancellation of his temporary residence permit . Nor had he been given the opportunity to be represented in relation to the orders .", "On DATE ORG ( full bench ) dismissed the recourse . The court noted that the applicant had left his place of residence without informing the authorities and had transgressed the conditions of his residence in GPE despite having already served a prison sentence for unlawful entry into the LOC . The authorities had found him subsequently by chance , whilst carrying out certain investigations concerning another case . As the applicant had been living in GPE unlawfully , the detention and deportation orders had been correctly issued against him on the basis of the Aliens and Immigration PERSON . The court therefore concluded that the decisions to close his file and to issue the aforementioned orders had been lawful .", "On DATE the applicant was taken to GPE airport for deportation . He was deported with a NORP travel document issued by the authorities and a photocopy of his passport . CARDINAL policemen escorted him . Upon his arrival in GPE , the last stop before PERSON , the authorities there refused to allow the applicant to depart to PERSON on the grounds that his escorts did not have a visa and tickets for PERSON . As a result the applicant and the policemen all returned to GPE .", "The applicant was initially detained in GPE airport detention facilities , then he was taken to FAC of FAC , where he was held until DATE .", "On DATE the Director of ORG issued new detention and deportation orders against the applicant under section CARDINAL ( CARDINAL)(k ) of the Aliens and Immigration PERSON .", "On DATE the applicant was transferred to GPE police station detention centre , but on DATE he was taken back to Block CARDINAL at FAC .", "The Government submitted that a number of efforts had been made subsequently by the authorities to obtain a ORG travel document for the applicant and to verify his true identity . The Sierra Leone Consul had visited the applicant at the police station in an attempt to establish his identity . Additional efforts had been made by the NORP and PERSON in GPE with a view to issuing a travel document .", "In DATE another attempt was made to deport the applicant . The flight to PERSON was via GPE but ORG in GPE refused to issue a transit visa for the applicant .", "On DATE the applicant was taken to GPE airport to be deported to PERSON on a ORG flight via GPE and GPE . The applicant was escorted by CARDINAL members of the immigration services . The applicant resisted boarding and as a result the airline did not allow him to board the aircraft . The applicant claimed that he had resisted boarding because of a genuine fear of persecution if he was sent back to PERSON and because of his poor psychological state after his lengthy detention . The applicant was then transferred to Aradippou police detention centre , where he was held until DATE , on which date he was transferred back Block CARDINAL at FAC .", "Letters dated DATE were sent by ORG seeking the assistance of the NORP and ORG to allow transit . The Government submitted that the replies of the above ORG were received on DATE , but did not provide any information as to their content . The applicant ’s deportation to PERSON on a flight via GPE and GPE was then arranged for DATE . The applicant was escorted by CARDINAL members of ORG . However , the NORP airline refused to allow the applicant to board the aircraft . The applicant submitted that he had not refused to board .", "The applicant maintained that he had been detained at GPE airport from DATE until DATE .", "On DATE , given the failed attempt to deport the applicant , the detention and deportation orders of CARDINAL DATE were cancelled and the applicant was released on the former date under the condition that he presented himself twice a day for DATE at FAC . The applicant submitted that following the expiry of the CARDINAL-day period he still had to report to the police DATE .", "The applicant was held , together with another detainee , in a cell that measured QUANTITY . The cell had no heating or air conditioning system . Although there were heating and cooling units in the common areas , these did not suffice to heat and cool the individual cells . The cell had a window which was not insulated and as a result the applicant had to cover the sides of the window with newspapers to protect himself from draughts . Apart from a bunk bed , there had been no other furniture in the cell . Because of the structure of the bunk beds , it was impossible to sit up straight on the lower bunk ; the only alternative was to sit on the floor .", "According to the Government all the cells in LAW measured CARDINAL by QUANTITY and could accommodate CARDINAL detainees . No records were kept as to whether CARDINAL detainees actually shared a cell . It was quite possible that the applicant had shared a cell with another detainee during his detention .", "All the cells had one window which was properly insulated against draughts .", "The cells were open TIME a day , with access to open spaces on both the lower and upper floors of FAC . Common rooms and entertainment rooms were situated in these spaces . Detainees were therefore able to move freely between their cells and these spaces .", "Furthermore , there was central heating and air conditioning in the open areas and the power of the units was sufficient to heat or cool every cell . The average temperature in each cell was fixed by the detainees themselves .", "In his observations of DATE the applicant provided a description of the conditions of his detention in the FAC detention centre , ORG detention centre and GPE airport .", "The applicant was held in GPE police station detention centre from DATE .", "He was held in a cell measuring QUANTITY , with no heating or air conditioning . The cell had a small window which could not be reached and which let air in . For a bed it had a concrete block with a mattress . No blankets were provided . During the applicant ’s stay , from TIME to TIME and depending on the time the next officer on duty turned up for his shift , the detainees were given a choice between being locked up in their cells or being in the overcrowded communal space , where there were no chairs , recreational facilities or sunlight . Following a hunger strike , the applicant was transferred from FAC back to FAC at FAC .", "The applicant was held in Aradippou police detention centre DATE and DATE .", "His cell was smaller than that in Block CARDINAL and the FAC detention centre and he shared it with another detainee . He had no freedom of movement outside the cell . The cell had a very low ceiling , QUANTITY high . Although there was heating and air conditioning in the cell it was not switched on on a regular basis . The lighting was also insufficient and the applicant submitted that as a result he had developed problems with his eyesight . Lastly , the cell window had been properly insulated against draughts .", "The applicant was held in GPE airport detention facilities DATE and DATE .", "There he was held in a large , overcrowded cell with many beds and no heating or cooling system . The toilet was inside the cell . The cell had CARDINAL window , which was insulated . The detainees were not allowed to leave the cell .", "On DATE the applicant filed a complaint with the Commissioner for Administration of GPE ( hereinafter “ the Ombudsman ” ) concerning his continuing detention , ORG decision to close his file and his intended deportation .", "On DATE the ORG acknowledged receipt of the complaint and informed the applicant that an investigation into his complaint had already begun .", "In his observations of DATE the applicant submitted that the ORG had not yet published a report . No further information has been provided as to the outcome of the applicant ’s complaint .", "In a letter dated DATE , the applicant ’s representative , Ms Charalambidou , informed the ORG that the applicant had been arrested on DATE by the Aliens and ORG for working without a work permit . The applicant is currently in detention pending the trial of the case by the domestic courts .", "Part II of the LAW contains provisions safeguarding fundamental human rights and liberties . LAW protects the right to liberty and security . It reads as follows , in so far as relevant :" ]

[]

[]

[]

[]

[]

[]

[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant produced machine components for an agricultural co - operative . Because of late payment , the applicant issued a prompt collection order , which was paid by the co - operative . However , in the meantime payment of the same amount was also transferred by a bank to the applicant 's account . In DATE the agricultural co - operative brought an action for unjust enrichment against the applicant before ORG . The first hearing was held on DATE .", "On DATE the applicant brought a counter - claim against the plaintiff for damages allegedly resulting from the late payment .", "On DATE the ORG heard the parties . On DATE it heard the applicant .", "At the hearing of CARDINAL DATE ORG appointed an expert . He submitted his opinion on DATE . On DATE the court heard the expert .", "On DATE ORG accepted the plaintiff 's action and ordered the applicant to pay MONEY and interest to the co - operative . It also dismissed the applicant 's counter - claim .", "On appeal , on DATE ORG quashed the first - instance decision and transferred the case to its competent bench , holding that it had jurisdiction in the matter .", "On DATE the court held a hearing .", "At the hearing of DATE the plaintiff informed the court that proceedings had been instituted against him by the applicant .", "On DATE , DATE , CARDINAL DATE and CARDINAL DATE the court heard witnesses as well as the parties .", "A hearing scheduled for DATE was postponed by the court to CARDINAL DATE . On DATE , the plaintiff requested the court to suspend the proceedings pending the final decision in another case .", "On DATE the applicant modified her counter - claim .", "In the meantime , the applicant requested that a hearing be held . At the hearing of DATE neither the plaintiff nor the applicant appeared despite having properly been summoned . Consequently , the proceedings were stayed ( szünetelés ) by force of law , pursuant to section CARDINAL § CARDINAL b ) of the Code on Civil Procedure . None of the parties requested the continuation of the case for DATE . Therefore , on DATE the proceedings were discontinued ( megszűnés szünetelés folytán ) in application of § CARDINAL of the same section .", "In the case underlying the plaintiff 's request for suspension , the final judgment was adopted on DATE and served on the applicant on DATE . On DATE the applicant requested that a hearing be held in the present case . She attached ORG judgment .", "In reply to the applicant 's request , on DATE ORG informed her that the case had been discontinued on DATE according to section QUANTITY on Civil Procedure .", "Section CARDINAL of the Code on Civil Procedure reads as relevant :", "“ ( CARDINAL ) The proceedings shall be stayed ( szünetelés ) [ by force of law ] , if", "a ) ...", "b ) none of the parties appears at any of the hearings , ... and the plaintiff has not requested that the hearing be held despite his absence , ...", "( CARDINAL ) ... The proceedings shall be continued at the request of either of the parties .", "( CARDINAL ) If the proceedings were stayed for DATE , the proceedings shall be discontinued ( megszűnés ) [ by force of law ] on the final date of that period . No request for reinstatement can be submitted in this respect . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant , a journalist , published an article in a column entitled “ Opinion ” of a national DATE paper . The subject of the article was the quality of a well - known NORP wine variety , a product of PERSON , a ORG - owned corporation , which was , in the applicant ’s view , bad and its popularity with NORP consumers unjustified . The article contained the following passage :", "“ On CARDINAL out of QUANTITY occasions , it is a product of PERSON , available below CARDINAL [ NORP forints ] per bottle , that represents the world ’s best wine region , ORG ... [ and that could make me cry ] . Not only because of the taste – although that alone would easily be enough for an abundant cry : sour , blunt and over - oxidised stuff , bad - quality ingredients collected from all kinds of leftovers , grey mould plus a bit of sugar from GPE , musty barrel – but because we are still there ... : CARDINAL of NORP drink [ this ] shit with pride , even devotion ... our long - suffering people are made to eat ( drink ) it and pay for it at least twice ( [ because we are talking about a ] ORG - owned company ) ; it is being explained diligently , using the most jerk - like demagogy from both left and right , that this is national treasure , this is how it is supposed to be made , out of the money of all of us , and this is very , very good , and we even need to be happy about it with a solemn face . This is how the inhabitants ( subjects ) of the country are being humiliated by the skunk regime through QUANTITY of alcoholised drink .", "And once again , I would remind everybody of how people were whining back then , saying that foreigners were coming to destroy [ T. ] , buy up the market and make everything multinational and alien - hearted ; and then it turned out that those foreigners made gorgeous wine , just like some lucky , resolute and very talented NORP family wineries , that they tried to make [ T. ] world - famous again , because this was their business interest ( profit , ugh ! ) ; while we as a community are trying to destroy their achievements using ORG money , lest something finally could be a success . ... ”", "T. Zrt filed a criminal complaint against the applicant . On DATE the Budapest II / III ORG convicted him of defamation ( rágalmazás ) . The court held that the criticism expressed in the applicant ’s article went beyond the boundaries of journalistic opinion and amounted to stating a fact susceptible of harming the reputation of the producer of the wine variety in question . The court refrained from imposing a sentence for DATE .", "On appeal , on CARDINAL DATE ORG reversed this judgment , holding that the incriminated statement was a value judgment and that therefore the applicant was to be convicted for libel ( becsületsértés ) under LAW of LAW . The court held that although the applicant was entitled to express his opinion about the wine in question , by characterising it as “ shit ” – an expression unduly insulting – he had infringed the producer ’s right to a good reputation . The court reduced the sanction to a reprimand .", "On DATE ORG upheld the applicant ’s conviction and sentence ." ]

[ "10" ]

[]

[]

[]

[]

[]

[ "The applicants ' farm was the object of land consolidation proceedings ( PERSON ) instituted by LOC ( PERSON ) on DATE .", "On DATE ORG held a hearing at which the farmers concerned could express their wishes ( PERSON ) and on CARDINAL DATE ORG ordered the provisional transfer of the properties concerned , inter alia , land owned by the applicants . In DATE ORG issued a consolidation plan ( Zusammenlegungsplan ) . The applicants appealed , claiming that they had not received adequate land in exchange for their parcels AK DATE . On DATE the ORG ( ORG ) dismissed the applicants ' appeal after an oral hearing held in private , but in the presence of the parties and their lawyer .", "On DATE the applicants filed a complaint with ORG ( Verwaltungsgerichtshof ) against the above decision . They also asked the ORG to hold an oral hearing .", "On DATE ORG dismissed the complaint , rejecting at the same time , in accordance with LAW ) no . CARDINAL of LAW , the applicants ' request for an oral hearing .", "Section CARDINAL ( CARDINAL ) of ORG ( Agrarverfahrensgesetz ) provided as follows :", "\" Land Reform Boards take their decisions after an oral hearing in the presence of the parties . \"", "It is the constant practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise .", "By virtue of legislation enacted in DATE ( ORG no . CARDINAL , p. CARDINAL ) , hearings before ORG are now public .", "Pursuant to LAW ( ORG ) , proceedings consist essentially in an exchange of written pleadings . If CARDINAL of the parties so requests ORG may hold a hearing which is in principle held in public ( Sections CARDINAL ( CARDINAL ) no . CARDINAL and DATE ( CARDINAL ) ) .", "Section CARDINAL ( CARDINAL ) of LAW provides that ORG is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time - limit . Section CARDINAL ( CARDINAL ) no . CARDINAL , which was added to the LAW in DATE , provides however :", "\" Notwithstanding a party 's application ... , ORG may decide not to hold a hearing where ...", "it is apparent to the ORG from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that an oral hearing is not likely to clarify the case further . \"" ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The first CARDINAL applicants and the fourth applicant 's late mother owned agricultural land in GPE . In DATE ORG began the building of a school on adjoining land . While the works were under way , it became apparent that an additional plot of land would be needed to complete the construction .", "By a decree issued on CARDINAL DATE , ORG authorised ORG to take possession , under an expedited procedure , of QUANTITY m. of land belonging to the applicants for a maximum period of DATE with a view to expropriating it in the public interest . The land was recorded on the cadastral register as “ partita ” no . DATE , folio no . CARDINAL , parcel no . CARDINAL .", "On DATE ORG took physical possession of the land and started the building works .", "The case file shows that the school was not completed until DATE , by which time the authorised period of possession had expired .", "The applicants say that they waited in vain for DATE for their land to be formally expropriated and for compensation .", "By a writ served on CARDINAL DATE the applicants brought an action in damages against ORG before ORG . They submitted , inter alia , that the authorities were in possession of their land illegally as the authorised period had expired without any formal expropriation or the payment of compensation .", "NORP The respondent council argued , in particular , that the action in damages was time - barred .", "On DATE ORG dismissed the objection raised by the council that the action in damages was time - barred , finding that the council had not stated when the works had been completed . Referring to ORG case - law on constructive expropriation ( occupazione acquisitiva ) , ORG said that the applicants ' right of property had been extinguished on completion of the public works . However , since the transfer of property had been linked to the unlawful taking of possession of the land , the applicants were entitled to damages calculated on the basis of the market value of the land , namely CARDINAL NORP lire ( MONEY per sq . m. ) , which , with index - linking to the date the judgment was delivered , came to MONEY , plus interest .", "On DATE ORG appealed against that judgment . It submitted in particular that the applicants ' right to damages was time - barred .", "In a judgment of DATE , ORG allowed ORG appeal and declared that the applicants ' right to damages was time - barred .", "ORG held that the works had been completed on DATE . As that was after the expiry of the DATE period stipulated by the Prefecture in its expedited possession order , it followed that the possession of the land was by then unlawful . However , under the constructive - expropriation rule , as established by the courts , ORG had acquired ownership of the land from the date the building works were completed . Since the council had acquired the property unlawfully , the applicants were entitled to seek damages ; however , in the instant case , the applicants ' right to damages was time - barred because the DATE limitation period had started to run from the date of completion of the works .", "On DATE the applicants appealed to ORG . They argued that the retrospective application of the constructive - expropriation rule established by ORG in DATE , coupled with the retrospective application of a limitation period , infringed both their right of property and the non - discrimination principle , as guaranteed by LAW . Up to DATE , landowners had retained ownership throughout the period of unlawful occupation of their land . Accordingly , although a DATE limitation period applied to actions in damages , the fact that the effects of the unlawful occupation were permanent meant that the landowner was entitled to seek damages at any time , as the occupation of the land remained unlawful . However , after DATE , owners deprived of their land by the authorities lost ownership from the date the works were completed and the limitation period started to run from that point . The applicants also contested the applicability of the DATE limitation period , arguing that ORG decisions on the issue were conflicting .", "In a judgment of DATE , lodged at the registry on CARDINAL DATE , ORG dismissed the applicants ' appeal . As regards which limitation period was applicable , it observed that on DATE the full court of ORG had resolved that issue finally , holding that the DATE period must apply . In the instant case , the applicant 's right to damages was therefore time - barred . As to the complaint that the retrospective application of the constructive - expropriation rule and the DATE limitation period was unconstitutional , since it infringed the applicants ' right to the peaceful enjoyment of their possessions and the non - discrimination principle , ORG held that it was manifestly ill - founded .", "This statute governs the expedited expropriation procedure , which permits authorities to start building before expropriation . Once a scheme has been declared to be in the public interest and the plans adopted , the authorities may make an expedited possession order , for a limited period not exceeding DATE , in respect of the land to be expropriated . The order will lapse if physical possession of the land is not taken within DATE after its issue . After the land has been possessed , a formal expropriation order must be made and compensation paid .", "During DATE , a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order . The NORP courts were confronted with cases in which the landowner had de facto lost use of the land as it had been possessed and building works in the public interest had been undertaken . The question arose whether the mere fact that works had been carried out meant that the owner had also lost title to the land .", "There was a substantial divergence in the decisions of ORG over the effects of carrying out building works in the public interest on land where possession had been taken unlawfully . Unlawful possession means possession that is unlawful from the start , in other words obtained without authority , or that is initially authorised but subsequently became unlawful , either because the authority is quashed or because possession continues beyond the authorised period without an expropriation order being made .", "Under CARDINAL line of case - law , the owner of land that had been possessed by the authorities did not lose ownership after completion of the works in the public interest . However , he could not request reinstatement of the land ; his only remedy was to bring an action in damages for wrongful possession . No limitation period applied to such actions as the unlawful nature of the possession was continuing . The authorities could at any time issue a formal expropriation order . If they did so , the action in damages was transformed into a dispute over the compensation for expropriation , with damages for the loss of enjoyment of the land being due only for the period prior to the making of the expropriation order ( see , among other authorities , the judgments of ORG nos . CARDINAL of DATE ; CARDINAL of DATE ; and DATE and CARDINAL of DATE ) .", "Under a second line , the landowner did not lose property in the land and could request its reinstatement if the authorities had acted other than in the public interest ( see , for example , ORG judgments nos . DATE and CARDINAL of DATE ) .", "NORP Under a third line , an owner dispossessed by the authorities automatically lost title to the land as soon as it had been altered irreversibly , that is to say on completion of the works in the public interest . He was entitled to claim damages ( the sole authority is ORG judgment no . CARDINAL of DATE ) .", "In a judgment of CARDINAL DATE , ORG , sitting as a full court , resolved the conflict between the case - law authorities and adopted the third solution . In so doing , it established the constructive - expropriation rule ( accessione invertita or occupazione acquisitiva ) . Under the rule , the public authorities acquire title to the land from the outset before formal expropriation if , after taking possession of the land and irrespective of whether such possession is lawful , the works in the public interest are performed . If , initially , the land is possessed without authority , the transfer of property takes place when the works in the public interest are completed . If the taking of possession was authorised from the outset , property is transferred on the expiry of the authorised period of possession . In the same judgment , ORG stated that , on a constructive expropriation , the owner is entitled to compensation in full as the acquisition of the land has taken place without title ( sine titulo ) . However , compensation is not paid automatically : the owner must lodge a claim for damages . In addition , the right to compensation is subject to a DATE limitation period that applies to actions in tort ; the starting - point is the date the land is irreversibly altered .", "Initially , it was held that no limitation period applied , since possession of the land without title was a continuing unlawful act ( see paragraph CARDINAL above ) . In its judgment no . DATE , ORG stated that the right to compensation was subject to a DATE limitation period ( see paragraph CARDINAL above ) . Subsequently , ORG said that a DATE limitation period should apply ( judgments nos . DATE ) . On CARDINAL DATE the full court of ORG decided the issue finally , holding that the limitation period is DATE and starts to run from the date the land is irreversibly altered .", "Recent developments in the case - law show that the mechanism whereby carrying out building works in the public interest operates to transfer property in the land to the authorities is subject to exceptions .", "In its judgment no . CARDINAL of DATE , the PERSON stated that there was no constructive expropriation where resolutions of the authorities and an expedited possession order had been quashed by the administrative courts , as otherwise the judicial decision would be devoid of purpose .", "In judgment no . DATE , ORG , sitting as a full court , said that the authorities did not acquire ownership of the land if their resolutions and the declaration that expropriation was in the public interest were deemed to have been null and void from the outset . In such cases , the owner retained title to the land and could claim restitutio in integrum . In the alternative , he could seek damages . The unlawful nature of the possession in such cases was continuing and no limitation period applied .", "In judgment no . DATE , ORG , sitting as a full court , said that there was no transfer of property where the declaration that expropriation was in the public interest had been annulled by the administrative courts . In such cases , therefore , the constructive - expropriation rule did not apply . The owner , who retained ownership of the land , was entitled to claim restitutio in integrum . If he brought an action in damages , that entailed a waiver of his right to restitutio in integrum . The DATE prescription period started to run from DATE when the decision of the administrative court became final .", "In judgment no . CARDINAL of DATE , ORG followed the decision of the full court and held that there was no transfer of property by constructive expropriation where the declaration that the building works were in the public interest was deemed to have been invalid from the outset .", "In this judgment , ORG was called upon to decide firstly whether the constructive - expropriation rule was compatible with LAW . The court declared that question inadmissible on the ground that it had jurisdiction to examine statutory provisions only , not rules established by the courts . Secondly , it held that the application to an action for compensation of the DATE limitation period laid down by DATE of LAW for claims in tort was compatible with LAW . The fact that the authorities had become owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under LAW , since the public interest in the preservation of works for the public good outweighed the individual 's interest in the right of property .", "Under ORG case - law on constructive expropriations , compensation in full , that is to say damages for the deprivation of the land , is due to the owner in consideration for the loss of ownership caused by the unlawful taking of possession .", "The Finance Law of DATE ( LAW no . CARDINAL of DATE ) superseded that case - law by providing that the compensation payable on constructive expropriations could not exceed the amount due on formal expropriations . In judgment no . CARDINAL of DATE , ORG declared that provision unconstitutional .", "Under Finance Law no . DATE , which amended the provision that had been declared unconstitutional , compensation in full can not be awarded for dispossessions effected before DATE . In such cases , compensation can not exceed such amount , plus PERCENT , but without applying the PERCENT reduction , as would have been payable on a formal expropriation ( CARDINAL of the sum of the market value plus the income from the land , PERCENT ) . In a judgment no . CARDINAL of DATE , ORG held that that provision was compatible with LAW . However , in the same decision , it said that compensation in full , up to the market value of the land , could be claimed where the dispossession and deprivation of the land were not in the public interest .", "The Government maintained that the applicants no longer had an interest in pursuing the application and asked the ORG to dismiss it .", "The Government said that CARDINAL parcels of land had been expropriated from the applicants by the PERSON authorities . The land forming the subject matter of the application covered QUANTITY m. and was entered on the cadastral register as parcel no . CARDINAL ; the land concerned by the other expropriation had a surface area of QUANTITY m. On DATE the applicants reached a settlement agreement with ORG at the end of the proceedings concerning that other parcel of land . The ORG maintained that the sum paid by the authorities pursuant to that agreement also included compensation for the loss of the CARDINAL sq . m. of land forming the subject matter of the application .", "In support of their case , the Government referred to the recitals of the settlement agreement , in which it was stated that at the origin of the agreement was the taking of possession DATE with a view to building a covered market – of CARDINAL sq . m. of the PERSON and GPE estate , registered on the cadastral plan as folio no . CARDINAL , parcels nos . CARDINAL , CARDINAL and CARDINAL .", "The applicants contested the ORG 's submission , arguing that the settlement agreement related only to the QUANTITY m. of land expropriated for the building of a market . They said that , along with other parcels , parcel no . CARDINAL had been included in the DATE order authorising possession of the QUANTITY m. of land by mistake , as the entire plot had already been used for the building of the school . That error had ORG consequently also appeared in the recitals to the settlement agreement . The applicants invited the ORG to examine side by side the settlement agreement and the report lodged on DATE by the expert appointed by ORG in connection with the dispute over the land intended for the building of a market . They said that that would enable the ORG to see that the settlement agreement did not relate to the CARDINAL sq . m. of land forming the subject matter of the application .", "The ORG has examined the settlement agreement and the expert 's report of DATE .", "On DATE report , the expert stated that the land originally belonging to the applicants could be divided into CARDINAL sections in the light of the changes that had been made :", "( i ) a first section that had not been expropriated ;", "( ii ) a second section of QUANTITY m. corresponding to parcel no . CARDINAL which had been used for a school ;", "( iii ) a third section of QUANTITY m. corresponding to other parcels of land forming the subject matter of the litigation for which the expert had been appointed . Possession of that section had been taken on DATE , a market and a road had been built on it and gardens planted .", "Although parcel no . CARDINAL is indeed referred to in the recitals to the settlement agreement , that same agreement also states that the compensation paid by the authorities relates to other parcels of land – all recorded on folio no . CARDINAL of the cadastral register – with a total surface - area of QUANTITY m.", "Having perused those documents , the ORG considers that the Government have not shown that the amount paid to the applicants pursuant to the settlement agreement related to the land forming the subject matter of the application .", "ORG Consequently , the ORG 's preliminary objection must be dismissed .", "The applicants complained that they had been deprived of their land in circumstances that were incompatible with the requirements of LAW No . CARDINAL , which provides :", "“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions . No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law .", "The preceding provisions shall not , however , in any way impair the right of a ORG to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties . ”", "The applicants asked the ORG to declare that the application of the constructive - expropriation rule in the instant case did not comply with the requirement of lawfulness .", "They referred to the notion of a legal norm and observed that the constructive - expropriation rule was an anomaly in the NORP legal system . It was considered by the domestic courts as being an expression of the “ living law ” , yet did not have the same effects as statutory provisions as , firstly , it was not binding on the courts and , secondly , its constitutionality could not be reviewed . Even if they were to accept the idea that the rule constituted a legal norm , the applicants , referring to the ORG v. GPE case ( judgment of DATE , Series A no . CARDINAL-A ) , observed that it had to be accessible , its effects had to be foreseeable and it had to be compatible with the principle of the rule of law .", "In that regard , the applicants maintained that the uncertainties and changes in the case - law to which the constructive - expropriation rule had given rise , combined with the way in which it had been applied in their case , amounted to a violation of the principle of the rule of law . In their submission , it had been impossible for them to foresee that their right of property would be considered by the courts to have been extinguished . Furthermore , by the time ORG established in DATE that the DATE limitation period had to apply , the applicant 's case had been pending for DATE . Moreover , ORG judgment of DATE , which finally resolved the issue of which limitation period should apply , was delivered when the applicants ' appeal on points of law was pending .", "The applicants went on to observe that constructive expropriations were effected not after proceedings in due form but following the physical taking of possession by the authorities . The latter became owners of the land and thus extinguished the landowners ' right of property despite the unlawful nature of their conduct . The applicants pointed out that the onus was on the landowner if he wished to obtain compensation , as he was required to make a claim for damages . Moreover , a ceiling had been placed on the measure of damages by the finance laws , such that landowners could no longer obtain reparation in full for the loss sustained .", "Referring to the ORG 's report , the applicants also argued that the deprivation of their land contravened the principle that a fair balance should be struck .", "The applicants concluded by requesting the ORG to find that there had been a violation of LAW No . CARDINAL .", "The Government reiterated their observations before the Commission in which , referring to ORG judgment no . CARDINAL of CARDINAL , they had maintained that the situation complained of by the applicants was compatible with LAW No . CARDINAL .", "In their memorials lodged with ORG , the Government observed that constructive expropriation was provided for “ by law ” , even though not set out in any statutory provision . As a principle established by the case- law , the constructive - expropriation rule formed part of NORP positive law but , unlike statutory provisions , there was no need for it to come into force formally as it was formulated over the course of time and the courts were not bound to apply it . The Government contested the ORG 's view that the constructive - expropriation rule was not in existence at the time possession of the land was taken , that is to say before ORG judgment no . DATE . The Government maintained that the rule had , at the material time , already been established by the courts .", "The ORG maintained that CARDINAL conditions had to be satisfied for a transfer of property by constructive expropriation to be lawful : the works had genuinely to be in the public interest ; the landowner had to have access to the courts for review of the public - interest issue ; and compensation had to be paid for the deprivation of the property .", "The Government noted that the applicants had not suggested that either of the first CARDINAL conditions had not been satisfied . As to the third , the ORG maintained that the applicants had received compensation as part of the settlement agreement concerning the expropriation of another parcel of land ( see paragraphs CARDINAL - CARDINAL above ) . The Government consequently considered that the applicants were seeking to obtain unjust enrichment through the ORG .", "The Government concluded by asking the ORG to declare the application unfounded .", "In its report , the ORG expressed the view that the applicants had been deprived of their land through the retrospective application of the constructive - expropriation rule and that their right to compensation had been declared time - barred as a result of the retrospective application of the relevant limitation period . Having found that no compensation had been paid to the applicants , it considered that that finding sufficed for it to conclude that there had been a violation of LAW No . CARDINAL .", "The ORG reiterates that LAW No . CARDINAL contains CARDINAL distinct rules : “ the first rule , set out in the first sentence of the first paragraph , is of a general nature and enunciates the principle of the peaceful enjoyment of property ; the second rule , contained in the second sentence of the first paragraph , covers deprivation of possessions and subjects it to certain conditions ; the third rule , stated in the second paragraph , recognises that GPE are entitled , amongst other things , to control the use of property in accordance with the general interest ... The CARDINAL rules are not , however , ' distinct ' in the sense of being unconnected . The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule ” ( see , among other authorities , the PERSON and Others v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , pp . CARDINAL , § DATE , partly following the terms of the ORG 's analysis in the PERSON and PERSON v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ; see also the GPE v. GPE judgment of DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE , and GPE v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § DATE , ORG CARDINAL-II ) .", "The ORG notes that it is common ground that there has been a deprivation of possessions .", "NORP In order to determine whether there has been a deprivation of possessions within the meaning of the second rule , the ORG must not confine itself to examining whether there has been dispossession or formal expropriation , it must look behind the appearances and investigate the realities of the situation complained of . Since the ORG is intended to guarantee rights that are “ practical and effective ” , it has to be ascertained whether that situation amounted to a de facto expropriation ( see the GPE and PERSON judgment cited above , pp . DATE , § CARDINAL ) .", "The ORG notes that in the present case ORG held , in a decision that was final and in which it applied the constructive - expropriation rule , that there had been a transfer of property in favour of ORG ; as a consequence of that decision the applicants were deprived of the possibility of obtaining damages . In those circumstances , the ORG finds that the effect of the judgment of ORG was to deprive the applicants of their possessions within the meaning of the second sentence of the first paragraph of LAW No . CARDINAL ( see ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-VII ) .", "In order to be compatible with LAW No . CARDINAL , such an interference must be “ in the public interest ” , “ subject to the conditions provided for by law and by the general principles of international law ” and must strike a “ fair balance ” between the demands of the general interest of the community and the requirements of the protection of the individual 's fundamental rights ( see the PERSON and PERSON judgment cited above , p. CARDINAL , § CARDINAL ) . Furthermore , the issue of whether a fair balance has been struck “ becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary ” ( see PERSON cited above , § DATE , and ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-I ) . Accordingly , the ORG does not consider it appropriate to base its decision solely on the finding that the applicants received no compensation .", "The ORG reiterates that the first and most important requirement of LAW No . CARDINAL is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful . The rule of law , CARDINAL of the fundamental principles of a democratic society , is inherent in all the Articles of the Convention ( see PERSON cited above , § DATE ) and entails a duty on the part of the ORG or other public authority to comply with judicial orders or decisions against it .", "The ORG does not consider it necessary to decide in the abstract whether the role in the continental - law system of a rule , such as the constructive - expropriation rule , established by the courts is comparable to that of statutory provisions . However , it reiterates that the requirement of lawfulness means that rules of domestic law must be sufficiently accessible , precise and foreseeable ( see the PERSON v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , pp . CARDINAL , § DATE , and the PERSON and Others v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) .", "In that connection , the ORG observes that the case - law on constructive expropriations has evolved in a way that has led to the rule being applied inconsistently ( see paragraphs CARDINAL above ) , a factor which could result in unforeseeable or arbitrary outcomes and deprive litigants of effective protection of their rights and which , as a consequence , is inconsistent with the requirement of lawfulness .", "The ORG also notes that , under the rule established by ORG in its judgment no . DATE , every constructive expropriation follows the unlawful taking of possession of the land . The unlawfulness may exist at the outset , if the taking of possession is unauthorised , or arise subsequently , if the authorities remain in possession beyond the authorised period . The ORG has reservations as to the compatibility with the requirement of lawfulness of a mechanism which , generally , enables the authorities to benefit from an unlawful situation in which the landowner is presented with a fait accompli .", "It notes , finally , that compensation for deprivation of property is not paid automatically by the authorities , but must be claimed by the landowner within DATE . That may prove to be inadequate protection .", "DATE . In any event , the ORG is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the LAW .", "In the instant case , the ORG notes that , pursuant to the constructive - expropriation rule , ORG held that the applicants had been deprived of their land from DATE . That transfer of property to the authorities therefore occurred during the period of possession without title ( sine titulo ) , automatically , following completion of the public works . ORG considers that that situation could not be regarded as “ foreseeable ” as it was only in the final decision , the judgment of ORG , that the constructive - expropriation rule could be regarded as being effectively applied . On that point , the ORG refers to the evolution of the case - law ( see paragraphs DATE above ) and to the fact that a case - law rule does not bind the courts as regards its application ( see paragraph CARDINAL above ) . The ORG consequently finds that the applicants did not become certain that they had been deprived of their land until DATE , when ORG judgment was lodged with the registry .", "Secondly , the ORG observes that the situation in issue enabled the authorities to derive a benefit from taking possession of land which they had held without title since DATE .", "Furthermore , the ORG notes that ORG applied the DATE limitation period from the date of completion of the works ( DATE ) . As a result , the applicants were denied the possibility that had , in principle , been available to them of obtaining damages .", "The ORG considers that such interference can only be described as arbitrary and consequently is not compatible with LAW No . CARDINAL .", "Accordingly , there has been a violation of LAW No . CARDINAL .", "Article CARDINAL of the ORG provides :", "“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”", "The applicants claimed MONEY ( ITL ) for pecuniary damage – the value of the land as assessed in an expert 's report of DATE plus interest and index - linking from DATE . In the alternative , they sought ORG DATE the value of the land as assessed in an expert 's report of DATE plus interest and index - linking from DATE . The applicants stated that they would be willing to accept the conclusions of a further expert valuation if the ORG were minded to seek CARDINAL .", "DATE . As regards non - pecuniary damage , the applicants claimed ORG CARDINAL each .", "The applicants sought reimbursement of ORG CARDINAL for the costs incurred before the national courts and of ORG CARDINAL for the costs incurred in the proceedings before the ORG and the ORG .", "The Government made no observations on that point .", "The ORG considers that the issue of the application of Article CARDINAL is not ready for decision and should be reserved having regard to the possibility of an agreement between the respondent ORG and the applicants ( Rule CARDINAL § § CARDINAL and CARDINAL of the Rules of Court ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants were born in DATE and DATE respectively and live in ORG , GPE .", "The first applicant was married to PERSON , born in DATE . They had CARDINAL sons – PERSON , born in DATE , GPE , born in DATE , GPE , born in DATE ( the second applicant ) , and ORG , born in DATE , and lived in GPE , GPE .", "DATE and DATE PERSON worked as a crane operator at ORG ( временный отдел внутренних дел Октябрьского района г. Грозного , “ the Oktyabrskiy VOVD ” ) under a short term employment contract .", "On DATE the Oktyabrskiy VOVD informed PERSON GPE that his contract could not be extended due to lack of funds and invited him to collect his salary DATE .", "On DATE around TIME and the second applicant arrived at FAC . The former entered the premises of the PERSON to get his wages , while the latter waited in the car in front of a security barrier CARDINAL – QUANTITY from the main entrance .", "After having waited for a while , the second applicant enquired twice about his father with the officers at the barrier , who told him to wait . TIME , when it got dark , the second applicant again enquired about his father and the police officers responded that there were “ no civilians left ” on the premises of the VOVD . The second applicant then returned home .", "The applicants have had no news of ORG since .", "NORP Since DATE the applicants have repeatedly applied in person and in writing to various public bodies , including the Oktyabrskiy VOVD , district and city military commander ’s offices , prosecutors at various levels , special police units in GPE ( отряды милиции особого назначения ) , ORG of ORG ( ORG по Чеченской PERSON службы безопасности , “ ORG of the ORG ” ) , local and regional administrative authorities and the Special Envoy of the NORP President for Rights and Freedoms in GPE ( ORG представитель PERSON по обеспечению прав и свобод человека и гражданина PERSON ) . In their letters to the authorities the applicants referred to the facts of their relative ’s disappearance and asked for assistance and details of an investigation . Most of these enquiries remained unanswered , save for formal responses by which the ORG requests were forwarded to various prosecutor ’s offices .", "On DATE , in the morning , the applicants and other relatives visited the Oktyabrskiy VOVD and enquired about PERSON . The first applicant ’s sister - in - law and another relative were admitted onto the premises of the PERSON and talked to PERSON , the Head of the Oktyabrskiy VOVD . The latter said that he was unaware of ORG whereabouts , that there had been no grounds for his detention and that there was no such person among the detainees kept in LOC . He added that PERSON had left the LOC of the PERSON after he had received his salary .", "The first applicant ’s sister - in - law also managed to look through an attendance register ( журнал регистрации посетителей ) in which she found an entry to the effect that PERSON had entered the building at TIME on DATE . There was no entry confirming that PERSON had ever left the Oktyabrskiy VOVD .", "During DATE after PERSON disappearance the first applicant talked to several people who had allegedly seen her husband on the premises of FAC on DATE . In particular , the first applicant met a police officer PERSON , who told her that PERSON had assisted him in repair work DATE and had then gone to the accounting office to receive his salary , having promised to come back , but had never returned . The first applicant also talked to CARDINAL workers who told her that they had been engaged in repair work on the VOVD premises on DATE and had seen PERSON enter the ORG TIME , but had not seen him leave .", "The first applicant talked to a representative of the military prosecutor of GPE who promised to find out whether her husband was being held at the military base of GPE . DATE the representative informed the first applicant that he had only been able to search for her spouse at the military units , and PERSON was not detained there . The official further stated that he had had no access to other branches of the armed forces and therefore had been unable to check at ORG ( ORG разведывательное управление ) , or the locations of a special fast deployment team ( специальный отряд быстрого реагирования ) and a special police unit .", "According to the first applicant , while searching for her husband she had found out that a number of persons had been ill - treated by officers of FAC or had disappeared after having been detained there .", "On DATE the Oktyabrskiy VOVD commenced an inquiry into PERSON disappearance .", "On DATE the Oktyabrskiy VOVD decided to dispense with criminal proceedings in the absence of evidence that any crime had been committed against PERSON .", "On DATE the ORG prosecutor ’s office ( прокуратура г. ORG ) quashed the above decision and opened criminal case no . DATE . In DATE the first applicant found out that this criminal case had been instituted in connection with her husband ’s murder .", "According to the applicants , after the investigation had been opened the first applicant had regularly visited the PERSON prosecutor ’s office to enquire about the measures taken . In the applicants’ submission , PERSON , the Prosecutor of ORG , and PERSON , the investigator in charge , had told the first applicant to stay at home , as they themselves would visit her there . They had also promised to bring police dogs to search for her husband , but had never done so . In reply to the first applicant ’s request to have certain PERSON officers questioned before they left for their permanent place of residence in another region of GPE , PERSON had answered that it would be easier to interrogate the officers there .", "On DATE , after their secondment had finished , PERSON and PERSON left GPE for their permanent place of residence .", "By letters of CARDINAL and DATE the prosecutor ’s office of GPE ( прокуратура Чеченской республики , ) referred the first applicant ’s applications to the PERSON prosecutor ’s office .", "On DATE ORG of the ORG informed the first applicant that their officers had not detained her husband and had no information about his whereabouts . The first applicant ’s application had been transmitted to the PERSON prosecutor ’s office .", "At some point in DATE the first applicant received information to the effect that her husband had been kept at the military base of GPE . According to the first applicant , in response to her request to verify this information , PERSON . , the then investigator in charge , stated that he was “ afraid of going to PERSON , as he himself “ might disappear there ” .", "On an unspecified date in DATE another investigator of the PERSON , PERSON . , told the first applicant that according to the information he had , PERSON was dead . He refused to provide any further explanation however .", "On DATE ORG referred the first applicant ’s application to the military prosecutor of military unit DATE ( военная прокуратура DATE ) .", "By a decision of DATE the first applicant was declared a victim in criminal case no . DATE . The applicant submitted a copy of this decision .", "On DATE criminal case no . DATE was joined with CARDINAL other cases opened in connection with the disappearance of residents of PERSON at various times in DATE .", "In a letter of DATE the prosecutor ’s office of GPE informed the first applicant that the criminal investigation into the murder of their relative had been instituted under LAW of LAW , as “ there [ was ] no such criminal offence as ‘ LAW in the NORP LAW ” and therefore criminal cases in connection with disappearances were , as a general rule , opened under the said Article .", "In the applicants’ submission , the investigation into their relative ’s disappearance had been discontinued and resumed on several occasions . The respective decisions had never been served on any of them , and they had only been notified of them when the first applicant visited the PERSON prosecutor ’s office . According to the first applicant , in breach of superior ORG orders the investigating body had never interrogated the officers in charge of the Oktyabrskiy VOVD .", "Referring to the information provided by ORG , the Government submitted that , on DATE , criminal proceedings under LAW of LAW ( murder ) had been instituted in connection with PERSON disappearance . The preliminary investigation in this case had been suspended due to a failure to establish those responsible on DATE , CARDINAL DATE , DATE , DATE and DATE , DATE and DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL DATE and DATE , and then resumed on CARDINAL DATE , DATE , DATE , DATE and DATE , CARDINAL DATE and DATE , DATE , DATE , DATE and DATE , DATE , DATE and DATE respectively . On the latest occasion the investigation had been stayed on DATE and then resumed on DATE . According to the ORG , the case was now being investigated by the PERSON prosecutor ’s office under the supervision of ORG .", "The Government further submitted that the first applicant had been questioned on DATE , DATE and DATE . According to them , there was no evidence in the transcripts of the first applicant ’s interview that she had ever made statements to the effect that her husband had been kept at the military base in GPE . They further submitted that the first applicant had been granted the status of victim on DATE . The authorities had also questioned the second applicant on DATE and his sister on an unspecified date .", "In the ORG ’s submission , in DATE the authorities had questioned over CARDINAL officers of the law - enforcement agencies of ORG who at the relevant time had been serving at FAC . The Government disclosed the names of some of the witnesses and indicated some of the dates on which witness statements had been obtained , but did not produce copies of transcripts of witness interviews . According to the Government , the officers had been shown PERSON photograph for identification . They had stated that the applicants’ relative had never been held in the temporary isolation unit of ORG . Officer PERSON , who at the material time had been the acting head of LOC , had made positive reference to the applicants’ relative and stated that during the search the investigators had obtained information to the effect that PERSON could have been killed by members of illegal armed groups for refusing to collaborate with them . Officer PERSON had stated that on DATE of PERSON disappearance he had seen the latter walking outside the territory of LOC in the direction of a local market . The Government also submitted that the investigating authorities had twice questioned officer NORP , who had taken the decision of CARDINAL DATE to dispense with criminal proceedings in connection with ORG disappearance ( see paragraph CARDINAL above ) , but did not specify which statements officer NORP had made .", "According to the ORG , the investigating authorities had also seized and examined documents from the Oktyabrskiy VOVD pertaining to the relevant period , in particular financial documents concerning payments by the Oktyabrskiy VOVD to PERSON , and registers of persons held in its temporary isolation unit in DATE . The Government did not submit copies of these documents or apprise ORG of their contents .", "In the ORG ’s submission , the investigating authorities had also sent a number of queries to the law - enforcement agencies of the various regions of GPE . They had obtained information to the effect that no criminal proceedings had ever been brought , nor had any special measures ever been taken , against PERSON and that he had never been arrested or detained by any of them . The authorities had also taken a number of steps aiming at establishing ORG whereabouts .", "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 disappearance of the applicants’ relative . Relying on information obtained from ORG , the ORG replied that the investigation was in progress and that the disclosure of the documents would be in violation of LAW since the file contained information of a military nature and personal data concerning the witnesses . At the same time , the Government suggested that a ORG delegation could have access to the file at the place where the preliminary investigation was being conducted , with the exception of “ the documents [ disclosing military information and personal data concerning the witnesses ] , and without the right to make copies of the case file and to transmit it to others ” . In DATE the ORG reiterated its request and suggested that Rule CARDINAL § CARDINAL of ORG be applied . In reply , the Government again refused to produce the investigation file for the aforementioned reasons .", "On DATE the application was declared partly admissible . At that stage the ORG once again invited the ORG to submit the investigation file and to provide information concerning the progress of the investigation . In DATE the Government informed ORG latest dates on which the investigation had been suspended and reopened and produced a copy of the decision of DATE by which the investigation had been resumed . PERSON of GPE , which had been staffed with police personnel of GPE . The decisions went on to say that on DATE PERSON had arrived , along with the second applicant , at FAC for his wages and “ entered the territory of the Oktyabrskiy VOVD unimpeded , following which he did not return , that is to say , went missing ” .", "The Government did not furnish the ORG with any other documents from the case file .", "For a summary of the relevant domestic law see ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ." ]

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

[]

[]

[ "13", "3" ]

[]

[]

[ "The applicant , PERSON , is a GPE national , born in DATE and living in GPE . She is represented before the Court by Ms PERSON of Liberty , GPE . The respondent Government are represented by PERSON , ORG , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant attended a demonstration organised by ORG ( \" CAAT \" ) in GPE . The demonstration had been arranged to coincide with an arms fair for the procurement of sales of arms and weapons at a military base TIME walk from the site of the demonstration .", "The applicant , who is not a member of ORG , attended this demonstration to show her support . Shortly after TIME she left the site accompanied by a friend . The applicant and her friend were about to walk up a footpath but were told by a policeman not to proceed along the footpath as he believed it to be military land . The applicant then proceeded , with her friend , to walk along the road which led to the arms fair . A woman police constable told them that they could not go down that road as it was military land . The applicant replied that that road was a public highway . She was told that if she continued she would be arrested for breach of the peace . The applicant ’s friend turned back and the applicant continued alone . The applicant was arrested by the woman police constable at TIME The custody record log states :", "\" ... CARDINAL During demonstration prisoner was warned to stay away from certain areas of military land . She refused and was arrested to prevent a breach of the peace and for causing an obstruction . Detention authorised until such time as it is unlikely that a breach of the peace will occur and to obtain evidence by questioning and to preserve and secure evidence through other enquiries . \"", "The applicant was detained until TIME when she was released without charge .", "She subsequently brought a civil action for wrongful arrest against the Chief Constable of GPE . The case was dismissed on DATE , the judge finding , inter alia , as follows :", "\" ... It is common ground that the plaintiff was told more than once that she would be arrested for breach of the peace . The ‘ whole ORG of the defence evidence was that this arose from a fear of contact between the demonstrators and those attending the exhibition , leading to a confrontation which sadly occurs that when those with strong views come up against those who practice what they find utterly offensive . Nor do I see in PERSON cross - examination anything to suggest that PERSON had not carried out the arrest on the basis of apprehending a risk of a breach of the peace involving violence .", "The plaintiff had expressed an intention to proceed in the direction of the arms fair . It seems to me to make no difference that the plaintiff claims , as may well be the case , to be a lady of pleasant disposition , self - disciplined and with no wish to damage property or indulge in violence . In the judgment of the police arrest was appropriate . By definition , the police have to make judgments as to whether violence would occur . To PERSON , all the indications were that the precise purpose why her colleagues were on duty was about to be thwarted , giving rise to a risk of a violent confrontation which it was wished to avoid .", "Nor do I accept that it was incumbent upon PERSON to enter into more detailed explanation of her basis for apprehending a breach of the peace . I bear in mind that the plaintiff ’s clear stance was that she was going along FAC , and that she was not to be deterred short of arrest ...", "The authorities clearly show that the possibility of a breach of the peace must be ‘ real’ and it must be sufficiently close in proximity in time and place . There must be an anticipation of violence in the immediate future or a real risk of it occurring ...", "I am reminded of everything I said earlier about the background . There was a high degree of security . The basis of the police operation was to keep the groups apart . Experience sadly shows that violent confrontations can take place ...", "It seems to me that to ask who would apprehend a risk of violence from the nature of the characteristics of the plaintiff confuses the plaintiff personality to those known to her with the position as it would appear to the police at the time . They had not means of knowing whether the plaintiff was peaceful or not ...", "It was entirely reasonable to proceed on the basis that the groups should be kept apart . Only arrest was an option for the police once the plaintiff had made clear her intention . In my judgment the risk of a violent confrontation was a very real one . The plaintiff was determined to proceed up FAC .", "Mr ORG urges that the plaintiff ’s evidence was not clear as to her intention , and I accept this as far as she felt she was being restrained from using a public highway . I do not accept that she was unaware [ where the exhibition was ] , nor that she had a mixed purpose [ in continuing ] ...", "My finding is that there was a very real , a high risk of violence . There was nothing in place or distance to suggest that [ the breach of the peace ] was not in sufficient proximity in place and time . It seems to me entirely coincidental whether [ the applicant ] was arrested CARDINAL , TIME from the arms fair , given that she had openly expressed an intention to proceed in that direction .", "The relevance of the decision not to allow demonstrators to go on military land is that this was a decision to keep the groups apart , an operational requirement in the context of stopping demonstrators approaching close to the exhibition . I see nothing in the GPE evidence to suggest that PERSON considered an irrelevant or improper matter , or that she failed to consider all relevant circumstances .", "Therefore I am persuaded that there was a reasonable and probable cause for arrest , and the case is dismissed ... \"", "The applicant was advised not to appeal : Counsel accepted that there was some prospect of an appeal court concluding that the risk of violence in the case was not sufficiently \" real \" to warrant arrest , but underlined that the test of whether there was a \" real possibility \" of violence inevitably leaves a great deal of discretion to the judge . He pointed out that unlike the case of PERSON ( PERSON v. ORG , see below ) , those who might have responded to the applicant ’s acts were not confined to trained personnel , and there was therefore every likelihood of an appeal judge taking the view that the trial judge was the person best placed to assess the factual context of the events .", "Breach of the peace – which does not constitute a criminal offence ( NORP v. County ORG , ex parte ORG Commissioner [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) – is a common - law concept dating back to DATE . However , as Lord PERSON , giving judgment in ORG in the case of NORP v. PERSON ( [ DATE ] CARDINAL Queen ’s Bench Reports CARDINAL ) , remarked in DATE :", "“ A comprehensive definition of the term ‘ breach of the peace’ has very rarely been formulated ... ” ( p. CARDINAL )", "He continued :", "“ We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault , an affray , a riot , unlawful assembly or other disturbance . ” ( p. CARDINAL )", "In DATE , in a differently constituted ORG giving judgment in NORP v. Chief Constable of GPE and GPE , ex parte ORG ( [ DATE ] ORG Reports CARDINAL ) , which concerned a protest against the construction of a nuclear power station , Lord PERSON , Master of the Rolls , defined “ breach of the peace ” more broadly , as follows :", "“ There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it . He is entitled by law peacefully to go on with his work on his lawful occasions . If anyone unlawfully and physically obstructs the worker DATE by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace . ” ( p. CARDINAL )", "In a subsequent case before ORG ( PERSON v. Director of Public Prosecutions [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , Mr Justice PERSON followed ORG , rather than ex parte ORG , in holding that there must be a risk of violence before there could be a breach of the peace . However , it was not essential that the violence be perpetrated by the defendant , as long as it was established that the natural consequence of his behaviour would be to provoke violence in others :", "“ The conduct in question does not itself have to be disorderly or a breach of the criminal law . It is sufficient if its natural consequence would , if persisted in , be to provoke others to violence , and so some actual danger to the peace is established . ” ( p. CARDINAL )", "In another case before ORG , PERSON and PERSON v. Director of Public Prosecutions ( [ DATE ] Justice of the Peace Reports CARDINAL ) , Lord Justice PERSON stated :", "“ ... the court would surely not find a [ breach of the peace ] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course , it would be if the defendant ’s conduct was not merely lawful but such as in no material way interfered with the other ’s rights . A fortiori , if the defendant was properly exercising his own basic rights , whether of assembly , demonstration or free speech . ” ( p. CARDINAL )", "A person may be arrested without warrant by exercise of the common - law power of arrest , for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace ( PERSON v. PERSON [ DATE ] Appeal Cases CARDINAL at CARDINAL ) . This power was preserved by ORG sections CARDINAL(CARDINAL ) and CARDINAL ) ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in LOC .", "On DATE a criminal case was opened into smuggling of consumer goods .", "On DATE the applicant was arrested on suspicion of participation in a criminal enterprise , smuggling , customs duty evasion and fraud .", "DATE the applicant was granted access to the materials in the case file .", "On DATE the case was referred for trial before ORG of PERSON . According to the Government , the case materials comprised CARDINAL binders ; charges had been brought against CARDINAL individuals who had acted in conspiracy ; the witnesses ' list included CARDINAL prosecution witnesses from several cities in GPE , GPE , GPE , GPE and GPE , as well as CARDINAL witnesses and experts for the defence .", "On DATE ORG held the preliminary hearing and fixed the opening trial date for DATE .", "On DATE ORG ordered that the case be returned to ORG for correcting defects in the indictment against the applicant . That decision was set aside by ORG on DATE , which referred the case back to ORG .", "NORP On DATE the trial resumed but it was subsequently stayed from DATE to DATE .", "On DATE the applicant was released on bail .", "According to the information provided by the parties and the elements available in the case - file to date , the criminal proceedings are still pending before the trial court .", "On DATE ORG of GPE remanded the applicant in custody on the ground that he was charged with serious and particularly serious offences and could abscond or interfere with the investigation , without citing specific reasons for these findings . On DATE ORG upheld the decision on appeal .", "On DATE , CARDINAL DATE , DATE and CARDINAL DATE ORG extended the applicant 's detention . Each time it referred , using a summary formula , to the gravity of the charge against the applicant and to “ grounds to believe that he would abscond or interfere with the criminal proceedings ” . On DATE , DATE , CARDINAL DATE and CARDINAL DATE ORG upheld the extension orders on appeal .", "In the decisions of DATE and DATE ORG found as follows ( the same paragraph featured in both decisions ) :", "“ [ The applicant ] is charged with crimes , including particularly serious crimes , punishable with DATE imprisonment . The factual circumstances of the offence imputed to [ the applicant ] call for the assumption that , once released , he would flee from the investigation and trial , re - offend or otherwise interfere with the criminal proceedings . In these circumstances , the [ first - instance ] court 's finding that any other , non - custodial preventive measure may not be applied to [ the applicant ] , appears justified . ”", "ORG decision of CARDINAL DATE also contained the following passage :", "“ The argument by the defence that the [ first - instance ] court did not take into account absence of any objective evidence of [ the applicant 's ] involvement in the commission of the imputed offence , is without substance because , in extending the applicant 's detention , the [ first - instance ] court did not make any findings as to the guilt of the accused or as to correctness of characterisation of the facts in law . ”", "On DATE the applicant was moved to remand centre no . IZ-CARDINAL/CARDINAL in GPE .", "On DATE ORG extended the applicant 's detention , referring to the gravity of the charges and the risk that he would interfere with the course of the trial because CARDINAL other defendants had gone into hiding .", "On DATE ORG , by CARDINAL decision , ordered to extend the applicant 's and his co - defendant 's detention until DATE , holding as follows :", "“ In deciding on extending the period of detention , the court takes into account that the measure of restraint in respect of [ the applicant and his co - defendant ] was imposed in accordance with ORG CARDINAL and CARDINAL of LAW as there existed sufficient grounds to believe that they would abscond investigation and trial or interfere with the criminal proceedings . The grounds justifying the application of the measure of restraint still persist to date . Positive references of the defendants and their medical ailments do not remove the grounds to believe that they can abscond because they are charged with particularly serious offences ” .", "Counsel for the applicant filed an appeal . He submitted , in particular , that the first - instance court had failed to take into account the facts mitigating for the applicant 's release , such as the absence of a prior criminal record , positive references , a permanent place of residence , stable family connections with his wife , children and grandchildren , chronic ailments , and the long period of detention which had already exceeded DATE .", "On DATE the Nizhniy ORG upheld on appeal the extension order of DATE , noting that the initial grounds justifying the holding of the applicant and his co - defendant in custody still obtained and that the defence had not put forward any arguments warranting a change in the preventive measure .", "On DATE and DATE ORG granted further extensions of the applicant 's and his co - defendant 's detention , invoking CARDINAL grounds : that they were charged with particularly serious offences punishable with up to DATE imprisonment , and that the applicant had been initially arrested because the investigation had received information about his intention to abscond .", "In the decision of CARDINAL DATE ORG found that :", "“ ... if the preventive measure is replaced with a more lenient one , there exists a risk that the defendants would not appear at trial ; thus , only the custodial measure may ... ensure the protection of the interests of the ORG and society against crime and the possibility of a fair trial . ”", "The decision of DATE employed a somewhat different wording which read as follows :", "“ Another , more lenient preventive measure , such as bail , would not be able to ensure a fair trial in this particular case . For that reason the need to ensure an effective protection of the public interests – notwithstanding the presumption of innocence and long periods of detention of both defendants – justifies a departure from the principle of individual liberty . ”", "On DATE and DATE ORG upheld , in a summary fashion , the above decisions .", "On DATE the ORG granted the applicant 's and his co - defendant 's application for release on bail . It found that , although the risk of absconding still existed , with the passage of time that risk was no longer sufficient to justify a breach of the principle of individual liberty . The bail was set at MONEY ( MONEY ) . On DATE the applicant was released .", "Since DATE detention matters have been governed by LAW ( Law no . CARDINAL of DATE ) .", "“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention on remand ( Article CARDINAL ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( Article CARDINAL ) .", "When deciding on a preventive measure , the court is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , re - offend or interfere with the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .", "Detention may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) .", "After arrest the suspect is placed in custody “ during the investigation ” . The maximum permitted period of detention “ during the investigation ” is DATE but it can be extended for DATE . Further extensions for CARDINAL or DATE may be authorised only if the accused is charged with serious or particularly serious criminal offences ( Article QUANTITY ) .", "From the date the prosecutor forwards the case to the trial court , the defendant 's detention is “ during the trial ” . The term of detention “ during the trial ” is calculated to the date 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 ) .", "The ORG or regional treasury is liable – irrespective of any fault by ORG officials DATE for the damage sustained by an individual on account of , in particular , unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody ( Article CARDINAL § CARDINAL of LAW ) .", "A court may hold the tortfeasor liable for non - pecuniary damage incurred by an individual through actions impairing his or her personal non - property rights , such as the right to personal integrity and the right to liberty of movement ( Articles CARDINAL and CARDINAL of LAW ) . Non - pecuniary damage must be compensated for irrespective of the tortfeasor 's fault in the event of , in particular , unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody ( LAW ) ." ]

[ "5" ]

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

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "In DATE the applicant took part in the cleaning - up operation at the GPE nuclear disaster site . He was subsequently granted Category CARDINAL disability status and became entitled to various social benefits , including a PERCENT discount on housing charges .", "In DATE the municipal housing maintenance authority lodged a claim against the applicant , seeking to recover unpaid housing charges .", "On DATE the applicant counterclaimed , seeking compensation in respect of non - pecuniary damage . He insisted that he had paid the housing charges on time and in full . The amount of the charges paid had been calculated to include PERCENT discount to which he and his family were entitled .", "On DATE the Justice of the Peace of the CARDINALth ORG of the Prikubanskiy District of Krasnodar partly found against the applicant and ordered him to pay outstanding housing charges . It rejected the applicant ’s counterclaim , finding that by law only he , but not his family members , was entitled to the discount .", "The applicant appealed against the judgment . He challenged the first - instance court ’s assessment of the facts and application of the legal provisions .", "On DATE the applicant ’s representative requested ORG to bring ORG into the proceedings as a third party . The court granted this request and suspended the proceedings .", "NORP The appeal hearings were subsequently scheduled for DATE and DATE but did not take place due to the presiding judge ’s illness .", "On DATE ORG upheld the judgment . The applicant received the summons on DATE and therefore neither he nor his representative could attend the hearing . The judgment ( определение ) contained a notice to the effect that no appeal lay against it .", "On DATE the applicant requested the court to resume the appeal proceedings since he had been summoned to the appeal hearing on DATE belatedly .", "On DATE ORG of Krasnodar heard the parties and rejected the applicant ’s request . The court established that the summons had been sent to the applicant on DATE , and there had been no evidence showing that the summons had reached him before the hearing on DATE . Nevertheless , according to civil procedural law , improper summoning is not a ground for a review of the case .", "On DATE ORG rejected the applicant ’s request for supervisory review proceedings .", "Under LAW , in force at the material time , parties to the proceedings are to be summoned to a hearing by a letter sent by registered mail with an acknowledgment of receipt , by court summons with an acknowledgment of receipt , by telegram , by phone or fax or by any other means which can guarantee a record of the fact that the summons was sent and was received by the party . Summons shall be served on the parties and their representatives in such a way that they have enough time to appear at the hearing and prepare their case .", "According to LAW , an appeal court examines a case following rules of procedure in a first - instance court ; it can establish new facts and examine new evidence .", "Article CARDINAL of the Instruction on the judicial workflow in district courts , approved by Order no . CARDINAL of ORG of ORG on DATE , provides that , summons and copies of procedural documents shall be sent by registered mail with an acknowledgement of receipt form" ]

[ "6" ]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "The applicant was the owner of non - residential LOC with an area of QUANTITY situated in GPE ( “ the Premises ” ) . The ownership certificate relative to the Premises was delivered to the applicant on DATE and her ownership right was duly registered in official records .", "Since DATE the Premises had been occupied by FAC no . CARDINAL of ORG ( “ FAC ” ) .", "The applicant wrote numerous letters to ORG , ORG , ORG , ORG , and other public authorities , complaining of unlawful occupation of the Premises by FAC . In DATE and DATE , the applicant was informed by letters from ORG and ORG that FAC would vacate the Premises as soon as it was provided with other LOC by ORG .", "On DATE the applicant lodged a lawsuit with the NORP ORG claiming that she was the lawful owner of the Premises and asking the court to order the eviction of FAC .", "On DATE the ORG granted the applicant 's request . The court held that the applicant was the lawful owner of ORG on the basis of the ownership certificate of CARDINAL DATE and that there was no legal basis for the installation of FAC there . Moreover , the court stated that ORG should provide LAW with other LOC .", "No appeals were filed against that judgment and , pursuant to domestic law , it became enforceable within DATE after its delivery .", "According to the case file , DATE ORG offered the Police Station different premises . However the Head of FAC refused to move to those LOC stating that they were not suitable for a police station .", "On DATE ORG allocated a plot of land for the construction of a building for FAC .", "NORP In DATE ORG commenced an action against the applicant challenging the lawfulness of the applicant 's ownership rights in respect of the Premises . On DATE the ORG rejected the ORG 's claim . The court found that ORG had no right to lodge a claim concerning the Premises , that the time - limits provided for challenging the applicant 's ownership right in respect of the Premises had expired , and that the matter was res judicata as the applicant 's ownership had been confirmed by the judgment of DATE .", "On DATE a criminal case was launched by ORG concerning the allegedly unlawful acquisition of the Premises by the applicant and her husband . On DATE the ORG authorised a search and seizure at the office of a company managed by the applicant 's husband . The case file does not contain any other material concerning subsequent developments and the results of this investigation and of the criminal case .", "NORP Moreover , it appears from the case file that in DATE ORG for ORG lodged a civil action against the applicant alleging that her ownership had been unlawful . The case file does not contain any material on the results of this legal action .", "As at the time of the ORG 's last communication with the applicant , the judgment of DATE remained unenforced ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "Mr PERSON , a NORP national who was born in DATE , lives in GPE . At the material time , he was a deputy police sergeant .", "On DATE an airport and border police squad based in GPE stopped a vehicle on the motorway between GPE and GPE . There were CARDINAL people inside , of whom CARDINAL did not have valid papers for entry into NORP territory .", "The driver , PERSON Fall , admitted that he had assisted these CARDINAL to cross the border illegally .", "He implicated the applicant , who was at that time serving at the GPE frontier post , alleging that he had allowed him to enter GPE in exchange for a payment of MONEY ( ORG ) and the promise of an imitation ORG watch .", "On DATE the applicant was charged with accepting a bribe and remanded in custody .", "In a judgment of DATE ORG acquitted Mr Guérin , rescinded the order for his detention and ordered his immediate release .", "On DATE the prosecution appealed .", "In a judgment of CARDINAL DATE the ORG - en - ORG , giving judgment in the applicant ’s absence , set aside the judgment at first instance and sentenced the applicant to CARDINAL years’ imprisonment .", "On DATE the applicant requested a retrial .", "The case was heard on DATE at a public hearing attended by Mr Guérin .", "In a judgment of CARDINAL DATE the Aix - en - ORG of Appeal found the applicant guilty of accepting a bribe , sentenced him to CARDINAL years’ imprisonment , DATE of which were suspended , and issued a warrant for his arrest . Although the applicant had been duly informed of the date of delivery of the judgment , he was not present .", "On DATE Mr Guérin was admitted to a psychiatric institution , where he stayed until DATE , when the police enforced the warrant for his arrest .", "On DATE , acting through a lawyer with the right of audience in the Aix - en - Provence Court of Appeal , the applicant lodged an appeal on points of law within the time - limit of CARDINAL clear days laid down by LAW ( see paragraph CARDINAL below ) .", "In his statement of the grounds of appeal the applicant ’s lawyer put forward CARDINAL arguments , CARDINAL procedural and CARDINAL substantive , concerning the elements of the offence . He also explained that “ as soon as he knew [ ORG decision ] , the appellant tried to commit suicide ” .", "On the first point , he referred to the report adopted by ORG on DATE in the case of GPE v. GPE and pointed out that the Commission had referred to the ORG the question whether the relevant case - law of ORG was contrary to LAW .", "On the second point , the lawyer stated that as the applicant lived in GPE he had not attended the hearing at which the judgment convicting him was delivered on account of the distance he would have had to travel and because he was very perturbed by the proceedings against him .", "It would also have been materially impossible for him to comply with the warrant for his arrest in DATE between the reading of the judgment and the lodging of the notice of intention to appeal . Moreover , on learning that he had just been convicted , and immediately after instructing his lawyer to lodge an appeal on points of law , he had tried to commit suicide , and for that reason had been treated in a psychiatric institution from DATE to DATE . Having stayed in that institution throughout the period allowed for an appeal on points of law , it had been absolutely impossible for him to comply with the warrant voluntarily before lodging the appeal . Lastly , the arrest warrant had been executed on DATE at the clinic where the applicant remained at the disposal of the courts . The lawyer concluded in the following terms :", "“ There is no doubt that in such conditions applying the case - law established in DATE in order to declare the appeal inadmissible would mean unjustly depriving Mr Guérin of the right to determination of his appeal . ”", "In a judgment of DATE ORG declared the appeal inadmissible on the following grounds :", "“ It is apparent from the notice of intention to appeal that the applicant lodged his appeal through an attorney at a time when he was liable to arrest under a warrant issued at the hearing on DATE , which was not executed until DATE . It follows from the general principles of criminal procedure that a convicted person who has not complied with a court order is not entitled to act through a representative in order to lodge an appeal on points of law . It could not be otherwise unless he supplied evidence of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time . In the present case the appellant has not supplied evidence of any such circumstances . ”", "In NORP law an appeal on points of law , which is an exceptional remedy , may be lodged by any person who has an interest in doing so and gives notice within the time - limit , against any judicial decision given at last instance .", "Article CARDINAL of LAW , which lays down the formalities to be observed in connection with appeals on points of law , provides :", "“ Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged .", "It must be signed by the registrar and by the appellant himself or by an attorney ( avoué ) of the court which has given judgment or by a specially authorised agent . In the last - mentioned case , the authority to act shall be annexed to the document drawn up by the registrar …", "… ”", "Article CARDINAL of the Code of Criminal Procedure provides :", "“ The prosecution and all parties shall have DATE after the date on which the impugned decision was given in which to lodge an appeal on points of law . ”", "Article CARDINAL of the Code of Criminal Procedure provides :", "“ During the time allowed for an appeal on points of law and , where such an appeal has been lodged , until ORG delivers judgment , execution of the judgment of ORG shall be stayed , except in respect of orders concerning civil matters , and unless ORG upholds the warrant issued by the trial court pursuant to LAW , first sub - paragraph , or unless it issues a warrant itself under the same conditions and according to the same rules . ”", "The suspensive effect of an appeal on points of law is derived from statute and may therefore likewise be restricted by statute , particularly in the interests of speedier and more effective punishment . That is the case where an arrest warrant has been issued by the trial court ( see , to that effect , PERSON , PERSON , GPE , CARDINALth edition , DATE , § MONEY ) .", "Article CARDINAL of the Code of Criminal Procedure provides :", "“ If a person sentenced to a term of imprisonment of DATE has not surrendered to custody and has not obtained from the court which convicted him exemption , on or without payment of a surety , from the obligation to surrender to custody , his right to appeal on points of law shall be forfeit .", "The memorandum of imprisonment or the judgment granting exemption shall be produced before ORG not later than the time when the case is called for hearing .", "For his appeal to be admissible , it is sufficient for the appellant to establish that he has surrendered to custody at a prison , either in the place where ORG sits or in the place where sentence was passed . The governor of that prison shall admit him there on the order of ORG at ORG or of the head of the public prosecutor ’s office at the court of trial or appeal . ”", "ORG has ruled on a number of occasions that an appeal lodged by the representative of a convicted person who has not complied with a warrant for his arrest is inadmissible ( PERSON . crim . DATE , PERSON , p. CARDINAL ) . But the convicted person may give notice himself of his intention to appeal ( PERSON . crim . DATE , ORG . crim no . CARDINAL ) , subject to the provisions of LAW , reproduced above .", "ORG considers that an appeal is admissible in the following CARDINAL situations :", "( a ) where , instead of acting through a representative , the appellant signs the notice of intention to appeal in person ( PERSON . crim . DATE , ORG . crim . no . CARDINAL ) by reporting to the registry before the warrant has been executed ( PERSON . crim . PERCENT , ORG . crim . no . CARDINAL ) and accepting the risk of being arrested by mentioning his exact address in the notice ( PERSON . crim . CARDINAL DATE , ORG . crim . no . CARDINAL ; PERSON . Crim . DATE , ORG . crim . , p. CARDINAL , confirmed by a decision of CARDINAL DATE published in ORG , DATE , ORG . , p. CARDINAL ) ;", "( b ) where , when acting through a representative , in accordance with LAW , he can prove that there were “ circumstances that made it absolutely impossible for him to surrender to custody at the appropriate time ” ( PERSON . crim . CARDINAL DATE , ORG . crim . no . CARDINAL ; PERSON . crim . DATE , ORG . crim . no . CARDINAL ; PERSON . crim . CARDINAL DATE ; PERSON . crim . DATE , ORG . crim . no . CARDINAL ) ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The first applicant ( “ the applicant ” ) , was born in DATE and lives in GPE . The second and the third applicant , PERSON and PERSON , the applicant ’s twin sons , were born in DATE and live in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the first applicant married a NORP citizen , who currently lives in GPE . The couple are raising CARDINAL children from the previous marriage of the wife and they have successfully claimed numerous allowances on their behalf . On DATE the wife gave birth to the second and third applicants . Both of them acquired NORP nationality by birth , through their father . At the material time , the mother held a residence permit ( tartózkodási engedély ) . She was granted a settlement permit ( letelepedési engedély ) in DATE .", "On DATE the first applicant requested maternity benefit ( anyasági támogatás ) amounting to MONEY ( ORG ) from the GPE and GPE Regional Directorate of the NORP ORG in his own name and on behalf of his children .", "On DATE ORG refused the applicant ’s claim . It pointed out that , in the light of the relevant provisions of Act no . CARDINAL of DATE on Family Support ( “ the LAW ” ) , only mothers , adoptive parents and guardians were entitled to the benefit in question . It also noted that the natural father might only apply for such an allowance if the mother were deceased . The first applicant appealed .", "On DATE the NORP ORG dismissed his appeal . The ORG established that , pursuant to the LAW , only mothers with NORP citizenship might apply for maternity benefit . It further observed that the Act applies only to those non - NORP citizens who have obtained settlement permits ( letelepedési engedély ) , being either refugees or citizens of another Member State of ORG . It concluded that , since the applicant ’s wife did not fall into either of these categories , the claim had to be rejected , since the natural father was not entitled to such benefits .", "On DATE the first applicant sought judicial review before the Pest County Regional Court . He argued that the legal background of the institution of maternity benefit , as well as the decisions of the competent NORP authorities , were discriminatory and contravened LAW and LAW .", "On DATE ORG , finding that the administrative authorities’ decisions had been in compliance with the law , dismissed the applicant ’s claim . It held , inter alia , that the purpose of maternity benefit was to support the mother and not the entire family or the children , therefore the latter could not be considered to have suffered discrimination .", "On DATE the applicant lodged a constitutional complaint with ORG . These proceedings are apparently still pending .", "“ The Act shall be applied – unless an international treaty regulates otherwise DATE to those living on the territory of GPE , who", "a ) are NORP nationals ,", "b ) have obtained an immigration or settlement permit , and to those who have been recognised as refugees by the NORP authorities ,", "c ) fall under the scope of Regulation ( ORG ) No CARDINAL/CARDINAL of ORG DATE on freedom of movement for workers within the ORG and DATE with the exception of the maternity benefit ( LAW ) DATE of the Regulation ( ORG ) No . CARDINAL on the application of social security schemes to employed persons , to self - employed persons and to members of their families moving within the Community , provided that such persons DATE with the exception of frontier workers – at the time of requesting the allowance have obtained a valid residence permit . ”", "“ ( CARDINAL ) Persons entitled to maternity benefit after giving birth are :", "a ) women who , during pregnancy , attended CARDINAL times – in case of premature birth , once DATE prenatal care ;", "b ) adoptive parents , if the adoption was finally authorised within DATE of the birth ;", "c ) the guardian , if the child – based on a final decision – was taken into his / her custody within DATE of the birth . ”", "“ If the woman entitled to maternity benefit dies before it is paid , then it shall be paid to the father living under the same roof or , in the absence of such a person , to the guardian of the child . ”", "“ A request for maternity benefit may be submitted within DATE of giving birth . ”" ]

[ "14", "8" ]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in PERSON . He was represented before the Court by PERSON E. Stöger , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a part - time farmer and ski instructor residing in PERSON , PERSON . He is entitled to allow his livestock to feed on grass on a certain plot of land , namely plot no . CARDINAL/CARDINAL of the PERSON land register which belongs to PERSON ( grazing rights – Weiderecht ) . That land is building land .", "On DATE E. applied for a building permit for the construction of an underground car park on plot no . DATE .", "On DATE the Mayor of PERSON , as the building authority , conducted an oral hearing on the site of the project . The applicant had not been summoned to that hearing . In the course of the hearing the applicant , who had appeared nevertheless , claimed that as a holder of grazing rights on the proposed building site he had to be considered a party to the building permit proceedings and objected to the construction project .", "By decision of CARDINAL DATE the Mayor granted the building permit . He rejected the applicant 's objections as inadmissible because he was not a neighbour within the meaning of section CARDINAL of FAC ( GPE ) . He informed him that any dispute concerning the grazing rights had to be settled before the ordinary civil courts .", "On DATE ORG ( PERSON ) dismissed the applicant 's appeal against that decision as inadmissible because the applicant was not a party to the building proceedings within the meaning of section CARDINAL of LAW .", "On DATE the applicant lodged objections against ORG decision ( PERSON ) with the regional government . The applicant submitted that the decisions , whereby he had not been accepted as a party , were wrong . He claimed that section QUANTITY § QUANTITY of LAW , which explicitly accepted persons holding a right to build ( Bauberechtigte ) as parties in building permit proceedings , should be interpreted as also extending the status of a party to persons who were holders of other kinds of servitudes encumbering the land of third persons .", "On DATE the regional government upheld the municipality 's decision . It found that the wording of section CARDINAL of LAW was clear and unambiguous and only conferred the status of a party on neighbours , namely persons who are the owners of land located at a specific distance from the proposed building project and persons who hold a right to build on the land at issue . As an obiter dictum , the regional government added that the legal situation of a person holding grazing rights was equally protected under civil law because , if a building permit infringed the civil rights of that person , a civil court could issue a prohibition on the carrying out of construction works .", "On DATE the applicant lodged a complaint with ORG , reiterating the arguments that he had raised before the regional government . He did not lodge a complaint with ORG .", "On DATE the regional government submitted its observations .", "On DATE ORG dismissed the applicant 's complaint . It found that the building authorities and the regional government had correctly found that the applicant 's grazing rights did not confer on him the position of a neighbour within the meaning of section CARDINAL of LAW . The building permit proceedings solely had the purpose of establishing that there were no obstacles under public law ( the relevant building regulations ) against a planned building project , but the building authorities had no competence to examine and decide whether a planned building project interfered with private rights of third persons . On DATE this decision was served on the applicant 's counsel .", "Section CARDINAL of FAC ( GPE ) reads as follows :", "“ ( CARDINAL ) The applicant for the building permit and the neighbours are parties to the proceedings concerning the building permit .", "( CARDINAL ) Neighbours are the owners of plots of land that are immediately adjacent to the building site , or where CARDINAL point of their borders is within a distance of QUANTITY from a point along the border of the building site . Moreover , those persons who have a right to build on such a plot of land are considered to be neighbours .", "( CARDINAL ) ORG whose plots of land directly adjoin the building site , or where CARDINAL point of their borders is at a distance of QUANTITY from a point along the border of the building site , are entitled to claim non - compliance with the following provisions under LAW , to the extent that these provisions also serve to protect them :", "a ) specifications of the land development plan in relation to protection against pollution ;", "b ) fire - protection provisions ;", "c ) specifications of the zoning plan with regard to building lines , border lines of buildings , the type of construction and its height ;", "d ) provisions on distances under section CARDINAL ;", "e ) in the event that a general zoning plan and a supplementary zoning plan or a zoning plan with the specifications of the general and the supplementary zoning plan do not exist , the absence of the requirements pursuant to section CARDINAL ( CARDINAL ) or LAW .", "( CARDINAL ) Other neighbours are entitled to claim non - compliance with the provisions listed in letters a ) and b ) of paragraph ( CARDINAL ) , to the extent that those provisions also serve to protect them .", "( CARDINAL ) If private - law objections are raised in the hearing on the building project , the authority shall strive , as far as possible , to achieve an agreement . If an agreement can be reached , this shall be documented in the report of the hearing . If no agreement is reached , the neighbour shall be referred to the ordinary legal recourse for his objections . These objections shall be expressly stated in the building permit . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant , PERSON , is a NORP national of NORP ethnic origin . She was born in DATE and lives in PERSON . She was represented before ORG by PERSON and PERSON , attorneys , who act in cooperation with DATE občianske a ľudské práva , a nongovernmental organisation with its registered office in ORG .", "On DATE , during the delivery of her second child , the applicant was sterilised by means of tubal ligation at ORG Pasteur in PERSON , a public hospital under the administration of ORG .", "Prior to her sterilisation the applicant had not given her informed consent to the intervention and it had not been approved by a sterilisation commission .", "As a result of the intervention the applicant has suffered serious medical and psychological consequences , including medical side effects and problems with her husband .", "On DATE the applicant lodged an action for protection of her personal rights with the ORG . Her claim was rejected on DATE . On DATE the ORG upheld the first instance judgment . The courts found that the applicant had been sterilised following her request . No shortcomings in the procedure had been established .", "On DATE the applicant lodged a constitutional complaint . She relied , inter alia , on Articles CARDINAL , CARDINAL § DATE , DATE , DATE and CARDINAL of the Convention .", "On DATE ORG found that ORG had breached the applicant ’s rights under LAW , in conjunction with Articles CARDINAL and CARDINAL . It quashed ORG judgment and instructed that court to re - examine the case . ORG further awarded MONEY ( ORG ) to the applicant as just satisfaction and ordered ORG to reimburse the applicant ’s costs . ORG dismissed the remainder of the applicant ’s complaint .", "The judgment stated that ORG had failed to consider in an appropriate manner the facts of the case in the light of the applicant ’s arguments including those under the LAW and other international instruments . ORG instructed ORG to take further evidence with a view to establishing whether , and if so , when and in which circumstances the applicant ( i ) had requested sterilisation , ( ii ) had been informed about the consequences of such intervention , and ( iii ) had given informed consent to it . It expressly instructed ORG to examine the applicant ’s arguments from the viewpoint of her rights under LAW and CARDINAL of the Convention .", "As to the alleged discrimination of the applicant , ORG held that it did not consider it necessary to examine the applicant ’s complaint under , inter alia , LAW as it considered primordial the alleged breach of LAW . Following its above decision ORG was obliged to take a position as to the alleged breach of the applicant ’s rights under international instruments . Finally , ORG expressed the view that LAW positive obligation to incorporate antidiscrimination principles and measures in their law . As such , it was not directly applicable by public authorities in individual cases .", "The relevant domestic law , practice and international materials are set out in GPE v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE , and GPE , GPE and PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The first applicant , Mr PERSON , and the second applicant , PERSON PERSON , are both NORP nationals who were born in DATE and DATE respectively and live in Rīga .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE at TIME the State police in ORG received a call from a private individual who informed them that thieves had broken into his ORG flat . According to reports drawn up DATE by QUANTITY police officers , a patrol team arrived at the address given TIME . They saw a man ( the first applicant ) running away . They apprehended him and found various items on him , which , it was discovered later , belonged to the owner of the flat . According to a report drawn up DATE by police officer ORG , who had attended the arrest of the first applicant , when apprehended the latter bore no visible injuries .", "Questioned on DATE , a neighbour , PERSON , stated that she had seen the first applicant attempting to escape when the police arrived .", "Following his arrest the first applicant was taken to ORG police station ( PERSON GPE pārvalde ) . At CARDINAL a.m. the applicant ’s arrest record was drawn up . On DATE , from TIME to CARDINAL a.m. , the first applicant was interviewed and denied any wrongdoing .", "He was repeatedly questioned DATE , from TIME , and confessed to the crime , which he said he had committed with CARDINAL acquaintances . He stated that he had been in the back yard of the building when CARDINAL of his acquaintances had given him a bag containing the stolen items which the police later discovered on him .", "On DATE ( at an unknown time ) the first applicant , who was represented by a lawyer , was brought before a judge of FAC and remanded in custody .", "On DATE the first applicant was taken to FAC .", "On DATE investigators questioned the CARDINAL individuals identified by the applicant , as well as another suspect , PERSON The latter confessed to having committed the theft together with the first applicant .", "On DATE the prosecutor informed the first applicant at FAC that he was being charged with large - scale theft . The applicant confirmed in writing that he had no objections or comments to make . Interviewed by the prosecutor on DATE , the first applicant denied his guilt and asked for the questioning to be postponed because he felt ill .", "The first applicant was repeatedly questioned by the prosecutor on DATE , and confessed to committing the crime , which he said he had committed with J.V. According to the record of the interview , the applicant stated that his earlier statements were false as far as the CARDINAL acquaintances were concerned ( see paragraph CARDINAL above ) because “ he had been subjected to duress at the police station ” . On DATE PERSON refused to provide a statement .", "On DATE the co - accused , PERSON , alleged that his earlier statement had been given as a result of physical force used by the police . On DATE he lodged a complaint in this respect , which was forwarded to the ORG police for examination . On DATE the ORG police refused to institute criminal proceedings in relation to the alleged ill - treatment of J.V.", "On DATE final charges were brought against the first applicant and the co - accused , PERSON The first applicant refused the assistance of a lawyer . On being questioned by the prosecutor , he maintained the statements he had given on DATE .", "On DATE the Rīga City ORG decided to commit the applicant and his co - defendant for trial and to maintain their remand in custody . The first hearing was scheduled for DATE .", "The first hearing was rescheduled for DATE because the judge was involved in other proceedings . The hearing was subsequently postponed until DATE because the co - defendant requested the assistance of defence counsel . The DATE hearing was rescheduled for DATE due to the absence of witnesses and the victim .", "From DATE the Rīga City Centre District Court held a hearing . The first applicant asked the court to request a medical certificate attesting to his physical condition following the questioning during which he had confessed to the crime . The co - accused requested the court to call the doctor who had treated him after he was questioned at the police station . The court left both requests open pending termination of the court investigation , and remitted the criminal case to ORG for additional pre - trial investigation .", "Following an appeal by the prosecutor , in DATE ORG revoked the decision and referred the criminal case back to the lower court for adjudication on the merits . The first applicant submitted an ancillary complaint to ORG in which he stated , inter alia , that during the pre - trial investigation he had been subjected to physical ill - treatment . On DATE the ORG decided to leave the complaint unexamined , on the ground that the impugned decision was not subject to an appeal .", "In DATE the prosecutor asked ORG to transfer the criminal case to ORG which , according to the prosecution , had jurisdiction in the case . ORG refused the request , and in DATE the case was sent back to the district court . At the regional court ’s request ORG ruled in DATE that the criminal case was to be tried by ORG .", "The hearing scheduled for DATE was postponed as witnesses and the victim failed to appear .", "DATE the hearing was postponed due to the co - defendant ’s illness .", "On DATE the Rīga City Centre District Court , after obtaining the first applicant ’s approval for the case to be examined in the absence of witnesses , began hearing the case . During the hearing the first applicant pleaded not guilty and alleged that he did not know PERSON and that he had provided incriminating statements only to avoid being physically ill - treated .", "On DATE the Rīga City ORG found the first applicant guilty , and sentenced him to DATE and CARDINAL months’ imprisonment . The first applicant had already served this term in pre - trial detention and was immediately released . His co - defendant was acquitted for lack of evidence .", "The court gave weight to the facts that the first applicant had never denied that he had the stolen items on him when he was arrested , and that this had been confirmed by ORG statements . Preferring to give credence to the statements the applicant had made during the pre - trial investigation , the court noted that the case file disclosed no evidence to support the allegations that during his questioning the first applicant had been ill - treated by police officers . Moreover , the first applicant had not raised any complaints in this regard .", "The court also relied on the fact that during the pre - trial investigation the first applicant had twice confessed to the prosecutor that he had committed the offence . It noted that the first applicant had never complained about the activities of the prosecutor .", "In his appeal the first applicant pleaded that the statements made during the pre - trial investigation had been obtained as a result of his ill - treatment by police officers .", "The appellate hearing scheduled for DATE was postponed as the first applicant asked for witnesses to be summoned on his behalf .", "On DATE the lower court ’s decision was upheld by ORG . According to the transcript of the hearing , police officer ORG stated that he did not remember either the first applicant or his arrest . On cross - examination by the first applicant , ORG confirmed that force had been used to apprehend the first applicant . A defence witness , PERSON , testified that she had seen police officers beating the first applicant on DATE . The prosecutor in response raised doubts as to whether the first applicant had been arrested in the circumstances alleged .", "In the judgment the appellate court referred to the lower court ’s reasoning and stated in particular :", "“ ... The case file bears no evidence that during the pre - trial investigation [ the first applicant ] had been ill - treated by police officers ; moreover [ the first applicant ] had confessed [ to the crime ] being questioned twice by the prosecutor , and [ the first applicant ] had never complained about ill - treatment by members of the prosecutor ’s office ” .", "It further observed that the first applicant ’s guilt had been attested to by a considerable amount of other evidence , such as witness statements and material evidence . It also noted that self - incriminating statements or denial of guilt could not serve as the only grounds to establish or refute guilt . The court further recognised that the first applicant ’s pre - trial statements in relation to PERSON had been of a confusing nature and could not be used as proof of the guilt of his co - accused .", "In his appeal on points of law the first applicant reiterated that his confession to the police officers had been obtained as a result of police ill - treatment . He also noted that he had not lodged an official complaint because of fear of retaliation by the police . On DATE the ORG of ORG , in a preparatory session , dismissed his appeal without examining it on the merits . The ORG remarked that the internal investigation of the alleged ill - treatment did not find that the applicant had been beaten up by police officers .", "It appears from the materials in the criminal file that on DATE the first applicant asked the lower court to lift the detention order and stated that his confession to the offence had been obtained under duress . On DATE the second applicant asked the lower court to release her son and stated , inter alia , in general terms that her son ’s confession had been obtained by ill - treatment . On DATE the first applicant asked the judge of the lower court to request information about his state of health when he was admitted to FAC and testified before the prosecutor .", "On DATE the second applicant , in a representation to the President of the Republic , asked the authorities to investigate the ill - treatment to which the first applicant had been subjected on DATE . She stated that when she had first seen her son in prison he had been severely beaten and had lost a front tooth ; his clothes were covered in blood . The lapse of time between the alleged ill - treatment and the complaint was explained by the first applicant ’s fear that he would be the victim of reprisals while in prison .", "At the request of the head of the ORG police inquiry department ( NORP policijas izziņas pārvalde ) for information on whether the criminal file contained information revealing the unauthorised use of force against the first applicant , the judge of the lower court reported in DATE that no such information could be found in the criminal file .", "The complaint was forwarded to ORG which , on DATE , refused to institute criminal proceedings . The decision , drawn up by investigator ORG , stated :", "[ CARDINAL . ] Under questioning ... [ the first applicant ] explained that ... [ a]t the arrest the police officers had knocked him to the ground , kicked him and hit him with truncheons , as a result of which he had lost consciousness . He regained consciousness only in the police car ... During the interrogation he had been subjected not only to physical ill - treatment but he also received threats and psychological intimidation . During the interrogation many police officers participated in beating and kicking him , for an extended period of time , on the body and head ... In addition , a plastic bag was put over his head , so that [ the first applicant ] could not breathe . In his statement [ the first applicant ] alleged that he had been ill - treated by many police officers , but that he could not remember or identify any of them .", "[ CARDINAL . ] In addition , in his statement [ the first applicant ] alleged that he had repeatedly complained to the prosecutor ’s office about police ill - treatment , which contradicts the information [ received ] from ORG [ according to which ] there is nothing to indicate ... that during the pre - trial investigation [ the first applicant ] had been subjected to ill - treatment by police officers or the prosecutor .", "[ CARDINAL . ] When taken into the temporary detention unit of the ORG police station no injuries were identified on the [ first applicant ] , and he did not make any complaint , either about his health or about the behaviour of the police officers .", "[ CARDINAL . ] [ The first applicant ] asked for medical assistance only on DATE in FAC : he was examined and bodily injuries were recorded ; on this basis on DATE ] a forensic medical examination was carried out . It appears from the report of [ the forensic medical examination ] that [ the first applicant ] had sustained the following bodily injuries : contusion on the right knee joint ; contusion on the back with haematoma ; bruises on both arms ( the number , localisation and characteristics of the bruises not described ) , which were considered to be minor bodily injuries causing only short - term health problems of DATE . It was impossible to establish the exact time the injuries had been sustained , but it could not be excluded that the injuries could have been inflicted on DATE .", "[ CARDINAL . ] [ The police officer ] GPE stated that ... he had taken part in the arrest of [ the first applicant ] . He had not observed any visible bodily injuries on [ the first applicant ] , and he could not remember the first applicant complaining of health problems or about the activities of the police officers . If the first applicant had raised any complaint about his health he would have been transferred to a medical establishment .", "[ CARDINAL . ] Accordingly ... it can be concluded that during the preliminary review of the complaint no objective confirmation was obtained as to the allegations that on DATE ... police officers had intentionally inflicted bodily injuries on [ the first applicant ] , as [ the latter ] complained about health problems only on DATE , whereas he was apprehended and questioned on CARDINAL June ” .", "The Chancellery of the President and ORG were informed of the decision taken , and a copy of the decision was sent to the second applicant .", "Following the second applicant ’s complaint of CARDINAL DATE , addressed to the President of the Republic , on DATE a superior prosecutor of ORG revoked the impugned decision and sent the case for additional investigation to the ORG police ( NORP policijas GPE pārvades GPE izmeklēšanas pārvalde ) on the ground that not all the facts and circumstances had been established when deciding whether to institute criminal proceedings in connection with allegations of ill - treatment . It appears that the prosecutor had issued specific instructions to the investigators .", "On DATE , after obtaining statements from CARDINAL other police officers who had taken part in the arrest of the first applicant , the investigator GPE established that the police officers had used force in accordance with section CARDINAL of LAW , in that the first applicant had not complied with the ORG requests and had attempted to escape . The decision stated :", "[ the former police officer ] ORG stated that he had apprehended [ the first applicant ] and since the latter ... had attempted to flee , he had caught [ the first applicant ] and knocked him down , and that as a result they had both fallen down . As the first applicant did not resist , there was no need to apply other means of force . ... [ A witness ] PERSON testified that she had seen the first applicant being apprehended from her window , and that many police officers had spent a long time beating [ the first applicant ] with truncheons and kicking him ...", "... [ T]here are grounds to conclude that the assertions in PERSON ’s statements contradict the report of bodily injuries in the forensic expert ’s report [ of DATE ] ... and therefore there are grounds to call into question PERSON ’s statement that there had been prolonged beating [ of the first applicant ] ... in that the bodily injuries of [ the first applicant ] did not correspond to the [ above ] description .", "... [ T]here are grounds to conclude that on DATE , when [ the first applicant ] was apprehended , the police officers acted in accordance with LAW , and the minor bodily injuries could have been inflicted while he was being apprehended , for , as noted by the police officers , [ the first applicant ] did not comply with their request , and attempted to escape . ”", "NORP The decision was sent to the supervising prosecutor of ORG and to the second applicant .", "On DATE the decision was upheld by a prosecutor attached to ORG . The prosecutor stated that in the course of an additional inquiry no further evidence substantiating the allegations was identified . The decision also noted that , considering the time that had passed since the alleged events , it was practically impossible to obtain new information which could confirm or deny the applicants’ version of the events . The decision was subject to appeal to ORG .", "According to a medical report drawn up by the medical unit of FAC , on DATE the first applicant had complained of pain in the right knee joint and when urinating . He was diagnosed as having haematomas on his back ( measuring QUANTITY ) , on both arms ( from QUANTITY to QUANTITY ) and bruises on both arms ( QUANTITY ) . According to the medical records of DATE the applicant ’s left knee was tender and painful and he was diagnosed as having a urinary infection and bruises on his body . The medical records also stated that according to the applicant “ he had been beaten up when being arrested ” .", "CARDINAL Following the first applicant ’s complaint of ill - treatment , on DATE a forensic medical expert assessment was carried out , which concluded that the bodily injuries ( an unspecified number and type of bruises on the left knee , arms and back ) were minor and would not cause health problems for DATE . The expert report could not determine the exact time the injuries had been inflicted on the first applicant , but it did not rule out the possibility that they had been inflicted on DATE .", "According to the information provided by the Government , where a person showed signs of bodily injuries he had to undergo a medical examination before being admitted to a police temporary detention unit . However , the DATE period for the keeping of such documents had expired , and so that information as regards the first applicant was no longer available .", "Under section CARDINAL , the basic duties of police officers include the conducting of investigations and necessary searches and other measures prescribed by the law in order to shed light on criminal offences and to identify their perpetrators .", "Section CARDINAL provides a list of situations in which police officers are allowed to use physical force , such as when arresting and conveying individuals to police stations , as well as when restraining arrested , detained and convicted persons if they do not comply or if they resist police officers , or if there is reason to believe that they may escape or harm others or themselves ;", "Section CARDINAL states that a police officer shall be liable for any unlawful action in accordance with the procedure specified by law . If a police officer has violated an individual ’s rights and lawful interests , the police authorities shall take measures to redress the violation and award compensation for damage caused .", "It also states that a police officer must not carry out or support any activity related to torture or other cruel , inhuman or degrading punishment . No police officer may cite an order from a superior , or exceptional circumstances such as a state or threat of war , a threat to national security , internal political instability of the ORG or a state of emergency , to justify torture or other cruel , inhuman or degrading treatment or punishment .", "According to paragraph CARDINAL ( the wording in force until DATE ) , the head of the police station reviews and decides on complaints about the actions of a police officer under his command . Such decisions are subject to appeal within DATE to a higher - level institution .", "Pursuant to sections CARDINAL and DATE , the functioning of the police shall be under the control of ORG , the Minister for the ORG and local municipalities , within the scope of their competence . The lawfulness of police operations is supervised by ORG and subordinate prosecutors .", "Section CARDINAL provides , inter alia , that courts and public prosecutors are obliged to initiate criminal proceedings if indications have been discovered that an offence has been committed .", "Section CARDINAL provides that a public prosecutor performs supervisory functions , inter alia , by revoking unlawful and unreasoned decisions of the police , and other public prosecutors in subordinate positions , concerning criminal cases .", "Pursuant to sections DATE and DATE , only evidence obtained , proved and assessed in accordance with this code may be used in determination of a case , and courts must freely and objectively assess the evidence and reach their own conclusions which are based on a full , complete and objective assessment of all the materials of the case and in accordance with law and justice . No evidence has any predetermined weight which would bind the court .", "Section CARDINAL provides that defence counsel in a criminal case has the right to meet a suspect , an accused , or a defendant in private ; to submit evidence ; to lodge objections and submit requests ; to participate in the questioning of a suspect and the charging and questioning of an accused , as well as in other investigative actions following a request raised by the suspect , accused or defence counsel ; to participate in adjudication of a case ; and to lodge complaints against decisions adopted by the entity in charge of an investigation , a prosecutor or a court .", "By virtue of section CARDINAL a prosecutor shall question the accused without delay following the bringing of charges . If immediate questioning is impossible , a record shall be drawn up explaining the reasons for the delay .", "Section CARDINAL sets out a procedure for lodging complaints against the activities of investigators , under which a suspect , accused persons and their representatives and defence counsel may submit a complaint to a prosecutor about the activities of investigators and others . Complaints shall be submitted directly to a prosecutor or to the person whose activities are the subject of the complaint . ORG may be either written or oral . In the latter case the complaint shall be recorded by a prosecutor or an investigator and that record shall be signed by the complainant . An investigator shall forward the complaint , together with explanations , to a prosecutor within TIME .", "Pursuant to section CARDINAL , a prosecutor shall decide on a complaint within DATE following the date of reception and shall notify the complainant of the outcome . If a complaint is rejected the prosecutor shall notify the complainant of the reasons . An investigator or the complainant may appeal against the prosecutor ’s decision to a higher - level prosecutor .", "Section CARDINAL stated that complaints about a prosecutor ’s activities are to be submitted to a prosecutor at a higher level , and are to be decided on in accordance with the procedures provided by sections QUANTITY and CARDINAL .", "NORP Under CARDINAL , a judgment can be examined by the cassation court only if it is vitiated by a material infringement either of criminal law or the law of criminal procedure . Section CARDINAL states , inter alia , that breaches of the provisions of LAW , which , inter alia , affected or could have affected the lawfulness , reasoning and fairness of a judgment , are serious infringements of LAW .", "In accordance with section CARDINAL , a prosecutor shall supervise the execution of custodial sentences and the institutions in which individuals are detained as a result . Furthermore , section CARDINAL provides that a prosecutor shall , in accordance with the procedures prescribed by law , carry out an investigation if the information received concerns a crime or a violation of the rights and lawful interests of , inter alia , detainees . Paragraph QUANTITY states that a prosecutor has the duty to take measures required for the protection of rights and lawful interests of persons and the State , if the examination of the facts regarding the violation of law is assigned by , inter alia , the President of the Republic .", "According to section DATE , when examining an application in accordance with the law , a prosecutor has the right : to request and to receive regulatory enactments , documents and other information from administrative authorities ... to order heads and other officials of ... institutions and organisations to carry out examinations , audits and expert examinations and to submit opinions , as well as to provide the assistance of specialists in examinations carried out by the prosecutor ; to summon a person and to receive from him / her explanations as to breaches of the law ... When taking a decision on a breach of law , the prosecutor , depending on the nature of the breach , has the duty ... to bring an action to the court , to initiate a criminal investigation or to initiate [ proceedings on ] administrative or disciplinary liability .", "By virtue of LAW , if it is necessary to bring an illegal activity to a halt , to rectify the consequences of such activity or to prevent a violation , a prosecutor shall submit a submission in writing to the relevant undertaking , authority , organisation , official , or person ." ]

[ "3", "6" ]

[ "6-1" ]

[]

[ "6" ]

[ "6-1" ]

[]

[ "The applicants , Mr PERSON and Mr PERSON , are GPE nationals , born in DATE and DATE respectively , who are both resident in PERSON ( GPE ) . They have resided in the GPE ( the Realm in LOC ) for DATE , but not for a period of DATE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicants , may be summarised as follows .", "On DATE and DATE respectively the applicants requested ORG of GPE ( College PERSON en wethouders ) to include them in the electoral register for the elections of members of ORG of ORG on DATE .", "By decisions of CARDINAL and DATE respectively ORG rejected their requests , as they had not been residents of the GPE for a period of DATE . Pursuant to Section CARDINAL § CARDINAL and CARDINAL sub A of LAW ( PERSON ) the applicants were thus not entitled to vote .", "The applicants filed an appeal against these decisions with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) . The applicants alleged that ORG decisions were in breach of inter alia LAW No . CARDINAL , submitting the following argumentation . ORG is a co - legislature in matters concerning GPE ( hereinafter also referred to as : GPE political control over the establishment of general orders in council for GPE ( algemene maatregelen van rijksbestuur ) . ORG , of which ORG is a part , in fact also acts as a “ ORG ” , thus the elections of members of ORG of ORG imply also the elections of members of the “ ORG ” . In other words , the overlap between members of ORG and the ones of the “ ORG ” implies ipso facto an overlap in respect of the elections of members of ORG of ORG and the ones of ORG of the “ ORG ” .", "By final judgment of DATE ORG of ORG dismissed the ORG appeal , holding inter alia the following :", "“ CARDINAL.CARDINAL.CARDINAL . GPE is composed of CARDINAL autonomous countries , the GPE , GPE and GPE . The relations within GPE and the duties and responsibilities of the different countries are regulated in the LAW [ for GPE ; PERSON het FAC , hereafter referred to as “ the Charter ” ] , which does not provide for ORG . The CARDINAL countries each have their own parliamentary representative body . The legislative power concerning GPE matters is exercised by the legislature of GPE Articles DATE of the Charter lay down the legislative procedure , providing for control over , and influence on , the legislative process for the representative bodies of the GPE , GPE and GPE .", "ORG are forwarded to the representative assemblies of GPE and GPE at the same time as they are introduced in ORG . These [ assemblies ] are empowered , prior to the PERSON being publicly debated in ORG , to examine the PERSON , to issue a written report thereon and to designate CARDINAL or more special delegates . Furthermore , the Ministers Plenipotentiary of the country in which the legislation is to apply – whose actions have to be accounted for in the representative assemblies of GPE and GPE – , are afforded the opportunity to attend the debate on the PERSON in ORG , to furnish information to the Upper and ORG , to propose amendments to the PERSON and to express their opinion on the PERSON before a final vote is taken . If , after the Minister PERSON has stated his or her opposition to the PERSON , ORG adopts it with a majority of CARDINAL of the number of votes cast , the proceedings shall be suspended and further discussions on the PERSON will take place in ORG . The same power is conferred on special delegates of the representative assemblies of GPE and GPE . Therefore , the LAW provides for a democratically legitimated contribution of the residents of the GPE , GPE and GPE on GPE legislation by the representative assemblies of the different countries , albeit that the contribution is not always organised in the same way in the countries . ( ... )", "CARDINAL.CARDINAL.CARDINAL . It has been established that the appellants are eligible to vote in the elections of members of ORG . Therefore the rejection of their requests for registration does not constitute grounds to find a violation of the right laid down in LAW No . CARDINAL ( ... ) . That argument thus fails .", "The appellants further argue that the rejection of their requests constitutes an unjustified difference in treatment , in breach of LAW . They are excluded as GPE nationals from the right to vote in the ORG elections , merely because they are residents of GPE , whereas GPE nationals who are also not resident of the GPE do have that right .", "CARDINAL.CARDINAL.CARDINAL . This argument also fails . The legislature has chosen to grant the right to vote in elections for ORG also to GPE nationals who are not residents of the GPE , in order to guarantee that all GPE nationals have the right to vote for a representative assembly . In respect of residents of GPE it is not in dispute that they have the right to vote for the ORG of their country . GPE nationals who are not , or not any longer , residents of GPE are ineligible , or lose their eligibility , to vote in elections for ORG . In that respect the CARDINAL situations are not the same , so for that reason alone there is no unjustified discrimination , within the meaning of LAW . The fact that LAW grants the right to vote to GPE nationals who are residents of GPE and GPE and who have resided in the GPE for DATE , thereby enabling them to vote in the election of CARDINAL representative assemblies , is also not a circumstance which leads to the conclusion that there is an unjustified difference in treatment , within the meaning of the aforementioned provision . From the drafting history of Section CARDINAL of LAW ( Parliamentary Documents I , DATE , CARDINAL CARDINAL , nr . CARDINALb , p. CARDINAL ) it can be deduced that the legislature is of the opinion that a residence in GPE of DATE or more creates a tie with the GPE to such an extent , that it is justified to grant the right to vote in the election of members of ORG [ to this category of GPE nationals ] . The residents of GPE and GPE who comply with this criterion are therefore clearly distinguishable from those who have never resided in the GPE . As regards residents of GPE and GPE who have resided in the GPE for a period of DATE , it can not be held that the legislature could not reasonably have decided upon that criterion . ”", "Apart from the proceedings above , the applicants also started proceedings against ORG of GPE concerning the rejection of their application for inclusion in the electoral list for the election of members of ORG on DATE . In the course of those proceedings , ORG of ORG made a reference for a preliminary ruling to ORG of ORG . On DATE ORG delivered its judgment ( Case C-CARDINAL/CARDINAL ) , which reads inter alia :", "“ CARDINAL . While , in the current state of Community law , there is nothing which precludes the Member GPE from defining , in compliance with Community law , the conditions of the right to vote and to stand as a candidate in elections to ORG by reference to the criterion of residence in the territory in which the elections are held , the principle of equal treatment prevents , however , the criteria chosen from resulting in different treatment of nationals who are in comparable situations , unless that treatment is objectively justified .", "§ PERSON Here , the relevant comparison is between a GPE national resident in GPE or in GPE and CARDINAL residing in a non - member country . They have in common that they are GPE nationals who do not reside in the GPE . Yet there is a difference in treatment between the CARDINAL , the latter having the right to vote and to stand as a candidate in elections to ORG held in the GPE whereas the former has no such right . Such a difference in treatment must be objectively justified .", "§ QUANTITY At the hearing , ORG stated that LAW objective was to enable GPE nationals from the GPE residing abroad to vote , since those nationals are assumed still to have links with GPE society . However , it is also apparent from that ORG ’s explanations at the hearing that a GPE national who transfers his residence from GPE to a non - member country has the right to vote in the same way as a GPE national transferring his residence from the GPE to a non - member country , while a GPE national - resident in GPE does not have that right .", "§ CARDINAL NORP In that regard , the objective pursued by the GPE legislature consisting in the conferment of the right to vote and to stand for election on GPE nationals who have or have had links with the GPE falls within that legislature ’s discretion as regards the holding of the elections . However , ORG has not sufficiently demonstrated that the difference in treatment observed between GPE nationals resident in a non - member country and those resident in GPE or GPE is objectively justified and does therefore constitute an infringement of the principle of equal treatment . ”", "In DATE , GPE ( until then part of GPE ) obtained internal autonomy and became a country ( separate from GPE ) within GPE . The status of these countries and the relations between them and the GPE and towards the GPE as a whole is laid down in the Charter for GPE . LAW provides that the CARDINAL countries shall manage their internal matters independently . Therefore GPE has its own LAW ( Staatsregeling ) and its own Net and parliament , i d est the Parliament of Aruba ( GPE ) , which body has CARDINAL members , who are elected freely , by secret ballot and by means of proportional representation for a DATE term .", "The legislature of the GPE consists of ORG and ORG ( the Monarch and ORG ) together .", "Relevant ( excerpts of ) articles of the LAW for GPE ( as amended by GPE of DATE ) read as follows :", "“ DATE", "...", "Legislative power in GPE affairs shall be exercised by the legislature of GPE Kingdom Bills shall be considered with due observance of the provisions of ORG CARDINAL to CARDINAL inclusive .", "Article CARDINAL", "The King shall forward ORG , at the same time as they are introduced in ORG , to the representative assemblies of GPE and GPE .", "...", "Article CARDINAL", "The representative assembly of the country in which the legislation is to apply shall be empowered , before the PERSON is publicly debated in ORG , to examine the PERSON and to issue a written report thereon , if necessary within a fixed time - limit .", "Article CARDINAL", "NORP The Minister Plenipotentiary of the country in which the legislation is to apply shall be afforded the opportunity to attend the debate on the PERSON in ORG and to furnish such information to the ORG and ORG as he considers desirable .", "NORP The representative assembly of the country in which the legislation is to apply may decide to designate , for the purposes of the debate on a particular PERSON in ORG , CARDINAL or more special delegates who shall likewise be empowered to attend the debates and furnish information .", "...", "The Ministers Plenipotentiary and the special delegates shall be empowered to propose amendments to a PERSON during the proceedings in ORG .", "Article CARDINAL", "NORP Before a final vote is taken on any GPE in the GPE and ORG , the Minister PERSON of the country in which the legislation is to apply shall have the opportunity to express his opinion on the PERSON . If , after the Minister PERSON has stated his opposition to the PERSON , ORG adopts it with a majority of CARDINAL of the number of votes cast , the proceedings shall be suspended and ORG shall consider the PERSON further .", "NORP If the meetings of the GPE or ORG are being attended by special delegates , the power referred to in paragraph CARDINAL shall devolve upon the delegate designated for the purpose by the representative assembly .", "Article CARDINAL", "NORP GPE , GPE and GPE shall conduct their internal affairs autonomously .", "NORP The interest of the GPE shall be a matter of common concern to the countries .", "Article CARDINAL", "NORP The representative assemblies shall be elected by GPE nationals who are residents of the country concerned and have attained an age to be determined by the countries , which should not exceed DATE . Each voter shall cast only CARDINAL vote . Elections shall be free and by secret ballot . In case of necessity the countries may impose restrictions . ...", "NORP The countries may award to GPE nationals who are not residents of the country concerned the right to vote in elections for the representative assemblies ... ”", "Section CARDINAL of LAW ( as amended on DATE ) reads as follows :", "“ CARDINAL . Members of ORG of ORG shall be elected by persons who are GPE nationals on DATE and have attained DATE on polling DATE , with the exception of persons who have their lawful place of residence in GPE or GPE on DATE .", "NORP This exception shall not apply to :", "( a ) GPE nationals who have been resident in the GPE for DATE ;", "( b ) GPE nationals who are employed in the GPE public service in GPE or GPE and their GPE spouses or partners and children , in so far as they have joint households . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant is a national of GPE , born in DATE and living in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The applicant arrived in GPE on DATE and requested asylum . During lengthy interviews by the NORP authorities , he stated that since DATE he had worked actively to reveal police brutality and other misconduct by the police in GPE . In DATE he had founded an association called “ ORG ” and in DATE he had started another organisation called “ The Standing Committee on Law Enforcement Development ” . As a consequence of his activities , he had allegedly been subjected to systematic police persecution since DATE . By DATE the persecution had reached serious proportions . Allegedly , there had been serious attempts to injure him , he had been subjected to surveillance , his property had been destroyed and he had been attacked with chemical substances . His reports to the police authorities had been to no avail .", "On DATE ORG ( ORG invandrarverk ) refused the applicant public legal counsel in the proceedings before ORG . The applicant appealed against this decision to ORG ( GPE ) .", "The applicant ’s asylum application was rejected by ORG on DATE . ORG found that there was no evidence to show that the GPE police authorities had been persecuting the applicant . Thus , he was not in need of protection in GPE . The applicant appealed against this decision to ORG ( Utlänningsnämnden ) .", "On DATE ORG upheld ORG decision not to award the applicant public legal counsel .", "On DATE ORG refused the applicant public legal counsel in the proceedings before ORG . It appears that this decision was not appealed against by the applicant to ORG .", "ORG decision not to grant the applicant asylum in GPE was upheld by ORG on DATE . ORG found that if the applicant had been subjected to the alleged maltreatment in GPE , it was the result of criminal acts committed by individuals and was not attributable to the ORG . No appeal lay against this decision .", "Subsequently , against the same background as initially , the applicant submitted a new request for asylum to ORG and also applied for legal aid . On DATE the ORG refused the applicant public legal counsel and also rejected his new application for asylum . No appeal lay against either of these decisions ." ]

[]

[]

[]

[]

[]

[]

[ "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants were all reservists who had been drafted by ORG in connection with ORG intervention in GPE . They remained in military service DATE , and were thus entitled to a certain per diem , as recognised in a number of decisions and orders of DATE signed by the then Chief of ORG . These decisions and orders were themselves based on the relevant bylaws adopted in accordance with the armed services legislation , specifically the Rules on Travel and Other Expenses in ORG ( PERSON o naknadi putnih i drugih troškova u PERSON ) as amended in DATE .", "NORP However , following the demobilisation the Government refused to honour their obligation to the reservists , including the applicants .", "NORP The reservists subsequently organised a series of public protests , some of which ended in open confrontation with the police . Ultimately , following protracted negotiations , on DATE the Government reached an agreement with some of the reservists , in particular those residing in the municipalities of GPE , GPE , PERSON , PERSON , PERSON , PERSON and ORG , whereby the latter were guaranteed payment in CARDINAL DATE instalments . This payment was to be effected through their respective municipalities , aggregate sums having been specified per each municipality . The said municipalities were chosen because of their “ underdeveloped ” status , implying the reservists’ indigence . For their part , the reservists in question accepted to renounce all of their outstanding claims based on their military service in DATE which were still pending before the civil courts , as well as any other claims in this connection . It was , lastly , stipulated that the criteria for the distribution of the “ financial aid ” in question shall be set out by a Commission consisting of local government representatives and the representatives of the reservists themselves .", "The applicants , just like all other reservists without a registered residence in the listed municipalities , could not benefit from the agreement of DATE .", "On DATE the applicants therefore filed a civil claim against the respondent ORG , seeking payment of their per diems and alleging discrimination .", "On DATE ORG ( PERSON ) in LOC ruled against the applicants . In so doing , it acknowledged the valid legal basis of their claim but noted that , as pointed out by the respondent , the applicable prescription period had been DATE as of their demobilisation , in accordance with LAW . The ORG claim had thus been filed out of time .", "On DATE ORG ( PERSON ) in LOC upheld this judgment on appeal , and it thereby became final . In its reasoning ORG noted that both the DATE and the DATE prescription periods provided in LAW had already elapsed before the applicants filed their civil claim ( see paragraph CARDINAL below ) .", "Having been served with ORG decision , on DATE the applicants lodged a further appeal with ORG ( Ustavni sud ) . Therein they maintained , inter alia , that the impugned judgment of ORG in GPE was inconsistent with numerous judgments adopted by the other appellate courts in GPE – i.e. the district courts ( okružni sudovi ) while they existed , as well as the high courts and the appeals courts ( viši i apelacioni sudovi ) thereafter DATE which on the same facts applied a longer , DATE , prescription period and thus ruled in favour of the plaintiffs ( see LAW at paragraph CARDINAL below ) . The applicants also referred to the agreement concluded between the Government and some of the reservists of CARDINAL DATE , which agreement excluded all of the remaining reservists including themselves .", "NORP The proceedings before ORG are still pending .", "DATE and DATE the first instance and appellate courts across GPE ruled both in favour of the reservists in a situation such as the ORG and against them , relying on the DATE / DATE or the DATE prescription periods respectively .", "In the meantime , in DATE and DATE , ORG adopted CARDINAL legal opinions ( pravna shvatanja ) , both of which implied that the applicable prescription period should be DATE pursuant to LAW ( see paragraphs CARDINAL , CARDINAL and DATE below ) .", "It was also alleged by the Government that ORG had adopted a further legal opinion on the matter in DATE , to the same effect but in more specific terms , but no such opinion has ever been published in its official ORG ) .", "DATE and DATE various appellate courts substantively ruled in compliance with ORG opinions of DATE and DATE ( see , for example , the decisions of ORG in GPE , PERSON . CARDINAL/CARDINAL of DATE ; ORG in PERSON , PERSON . CARDINAL/CARDINAL of DATE , CARDINAL/CARDINAL of CARDINAL DATE , CARDINAL of DATE , ORG of CARDINAL DATE and CARDINAL/CARDINAL of DATE ; ORG in GPE , PERSON . CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ; as well as ORG in GPE , Gž . CARDINAL of DATE , CARDINAL/CARDINAL of DATE , DATE of DATE and CARDINAL/CARDINAL of CARDINAL DATE ) .", "DATE and DATE there were also a number of decisions where the appellate courts ruled against the reservists , albeit on a different ground . Specifically , their claims , unlike the claims of the applicants in the present case , were rejected as administrative in nature , and as such outside the competence of the civil courts ( see the decision of ORG in GPE Gž . CARDINAL of DATE , as well as the decisions of ORG in GPE Gž . CARDINAL , ORG and PERSON of CARDINAL DATE , DATE and DATE respectively ) .", "On DATE ORG in ORG adopted a default judgment in favour of a reservist ( ORG . CARDINAL ) . According to the information provided by the parties , there is no evidence that this judgment had ever become final .", "On DATE the Government endorsed the agreement of CARDINAL DATE , and decided to pay to the municipalities in question the amounts specified therein .", "On DATE the Government set up a working group tasked with addressing the requests of all other reservists , i.e. those not resident in the said CARDINAL municipalities . However , having discussed the issue with various groups of reservists , this working group ultimately concluded that their demands were not acceptable , inter alia , because : ( i ) they had not harmonised or specified their requests ; ( ii ) some of their representatives had had dubious standing to represent them ; ( iii ) there had been a lack of ORG funds which could be used for this purpose ; and ( iv ) in most cases , war per diems had already been paid to the reservists .", "On DATE the Commissioner for ORG ) , an Ombudsman - type office established on the basis of LAW ( published in OG RS no . CARDINAL ) , considered the complaints brought by an organisation representing the interests of reservists in a situation such as the applicants’ . In so doing , she concluded that they had been discriminated against on the basis of their registered residence , i.e. as non - residents of the CARDINAL privileged municipalities , and recommended to the Government to take all necessary measures in order to ensure that all reservists be afforded the payments recognised by their decision of DATE . The Government was also invited to provide the Commissioner with an appropriate “ action plan ” within DATE . In its reasoning , the Commissioner ’s decision noted , inter alia , that the payments in question were per diems , notwithstanding that the Government had chosen to consider them as social benefits awarded to persons in need ( socijalna pomoć ) , and that this was best exemplified by the fact that the reservists in question had had to renounce their legal claims concerning the per diems as well as the fact that the individual reservists resident in the CARDINAL municipalities at issue were never under an obligation to prove their indigence ( imovinsko stanje i socijalnu ugroženost ) . This being so , there was clearly no objective and reasonable justification for the differential treatment of reservists merely on the basis of their residence .", "On DATE ORG ( Ministarstvo rada i socijalne politike ) noted that the discussions should continue with the various groups of reservists and that , if possible , financial support should be offered to the most indigent among them .", "On DATE ORG ( ORG ekonomije i regionalnog razvoja ) sent a memorandum to ORG ( ORG pravde ) , stating , inter alia , that there were numerous employment - related civil suits , brought against current or former socially - owned companies , which could endanger the country ’s economic stability . It thus urged ORG to review the possibility of advising the courts to suspend certain types of these suits until DATE , as well as to desist from the enforcement of any final judgments already adopted in these proceedings . According to numerous media reports , having received it , ORG forwarded the memorandum to ORG ( PERSON ) , which then faxed it to the presidents of the appellate courts for information .", "On DATE ORG informed the public that it had rejected the recommendation of ORG . In so doing , it noted , inter alia , that the NORP judiciary was independent of the executive as well as the legislative branches of Government .", "The relevant provisions of the LAW read as follows :", "“ Everyone shall have the right to equal legal protection , without discrimination .", "All direct or indirect discrimination based on any grounds , particularly on the grounds of race , sex , national or social origin , birth , religion , political or other opinion , property status , culture , language , age , mental or physical disability shall be prohibited . ”", "“ Everyone shall have the right to ... [ a fair hearing before a ] ... tribunal ... [ in the determination ] ... of his [ or her ] rights and obligations ... ”", "“ Equal protection of rights before the courts of law ... shall be guaranteed . ”", "“ A constitutional appeal may be lodged against individual decisions or actions of ORG bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by LAW , if other legal remedies for their protection have already been exhausted or have not been prescribed . ”", "On DATE and CARDINAL DATE ORG rejected CARDINAL separate constitutional appeals lodged by reservists who were in a situation such as the applicants’ . The said court noted , inter alia , that the civil courts’ decisions rendered against them , respectively , had been “ based on the applicable domestic legislation ” . The appellants , however , never specifically complained about the inconsistency of the relevant case - law or being discriminated against ( Už . CARDINAL/CARDINAL and Už . CARDINAL ) .", "On DATE , in another case such as the applicants’ , ORG , inter alia , effectively ignored a complaint about the differential treatment of the CARDINAL groups of reservists stemming from the agreement of DATE . In particular , it offered no substantive assessment of the issue raised by the appellants , noting further that they had not offered adequate proof as regards the existence of inconsistent case - law on the matter ( Už . GPE ) .", "On DATE , in yet another case such as the applicants’ , ORG ruled against the appellants as regards their complaint about the outcome of their case before the lower courts . There was no reference in the decision itself to the agreement of DATE and it remains unclear as to whether this issue was ever raised by the appellants ( Už . CARDINAL ) .", "On DATE , in a case such as the applicants’ but where the civil courts had rejected the reservists claims as being outside of their competence ratione materiae ( see , for example , paragraph CARDINAL above ) , ORG ruled in favour of the appellants who had alleged inconsistent case - law ( between the judgments adopted in their cases and several other judgments adopted by the courts in DATE ) and ordered that the impugned civil proceedings be re - opened . As regards the NORP discrimination complaint , ORG reasoned that the said inconsistency did not amount to discrimination since the impugned court decisions had not been rendered on the basis of the appellants’ personal status ( ličnog svojstva ) . There was also no reference in the court ’s reasoning to the agreement of DATE ( Už . CARDINAL ) .", "In decision Už . CARDINAL , adopted on DATE , and decisions Už . CARDINAL/CARDINAL , CARDINAL and CARDINAL/CARDINAL , all adopted on DATE , as well as in decisions Už . CARDINAL , DATE , ORG , CARDINAL , ORG , CARDINAL , CARDINAL and DATE , rendered between DATE and DATE , ORG noted the existence of inconsistent domestic case - law in the civil context and then went on to find that this had been in breach of the principle of judicial certainty as an integral part of the appellants’ right to a fair trial . The appellants’ complaints to the effect that the same situation had also resulted in discrimination against them , was rejected by ORG as manifestly ill - founded , since the impugned court decisions had not been rendered on the basis of the appellants’ personal status . No re - opening of the proceedings was ordered . The above - cited decisions concerned matters which were factually unrelated to the applicants’ situation in the present case .", "Article CARDINAL § CARDINAL provides , inter alia , that all parties shall be entitled to the equal protection of their rights .", "Article CARDINAL sets out the circumstances in which a default judgment ( presuda zbog izostanka ) may be adopted , based on , inter alia , the respondent ’s failure to appear before the court despite being duly served with the summons .", "Article CARDINAL provides that a case may be reopened if ORG has in the meantime rendered a judgment in respect of GPE concerning the same or a similar legal issue .", "Article QUANTITY provides , inter alia , that a meeting of a division ( sednica odeljenja ) of ORG shall be held if there is an issue as regards the consistency of its case - law . Any opinions ( pravna shvatanja ) adopted thereupon shall be binding for the panels ( veća ) of the division in question .", "These Rules set out the relevant details concerning the reimbursement of expenses incurred in connection with military service .", "Article CARDINAL § CARDINAL provides that courts may not , in the course of proceedings before them , take into account negative prescription periods unless an objection to this effect has been made by the debtor .", "Article CARDINAL states that the general negative prescription period for civil claims shall be DATE , unless provided otherwise .", "Article CARDINAL § § CARDINAL and QUANTITY provides , inter alia , that the negative prescription period for seeking civil compensation shall be DATE as of when the claimant learned of the damage in question , but that , in any event , the absolute deadline shall be DATE as of when the damage occurred .", "Articles CARDINAL and CARDINAL provide , inter alia , that the running of a negative prescription period shall be interrupted by the debtor ’s acceptance of the claim at issue , directly or indirectly , as well as by the claimant ’s lodging of a civil action in this respect .", "Article CARDINAL § § CARDINAL provides , inter alia , that the effect of such an interruption shall be that the applicable period shall start running anew as of the debtor ’s acceptance of the claim in question and the conclusion of the civil suit , respectively .", "On DATE ORG held , inter alia , that , quite apart from the competence of the administrative authorities in respect of the reservists’ claims concerning their per diems , civil courts shall have jurisdiction to rule on the merits in all related cases where they seek damages ( see paragraph CARDINAL above ) based on the ORG ’s alleged malfeasance ( pravno shvatanje ORG odeljenja ORG utvrđeno na sednici od CARDINAL . DATE . godine , published in ORG Bulletin no . CARDINAL ) .", "On DATE ORG essentially reaffirmed the opinion of CARDINAL DATE , extending its application to certain other “ military entitlements ” . It also noted that there have been some inconsistencies before the courts in the meantime ( pravno shvatanje ORG utvrđeno na sednici od CARDINAL . aprila DATE . godine , published in ORG Bulletin no . CARDINAL ) ." ]

[ "14", "P1" ]

[ "P1-1" ]

[ "P1-1-1" ]

[]

[]

[]

[ "The applicants were born in DATE and DATE respectively . They are serving their prison sentences in LOC .", "On DATE the first applicant ( Mr PERSON ) was brought to ORG of ORG of the ORG in the town of ORG . He was suspected of a Mr M. 's murder . As can be seen from the arrest report drawn up at TIME on DATE , the applicant 's family and next of kin were not informed . According to the applicant , the police officers placed a canvas bag on his head , beat him and administered electric shocks with the purpose of extracting a confession from him . The applicant made no confessions .", "During TIME , from CARDINAL to TIME , the first applicant was brought before investigator PERSON record of interview contains the following pre - typed standard wording :", "“ I have been informed that LAW CARDINAL of LAW , no one is required to testify against himself , his spouse or next of kin ... I have also been apprised of the rights of the suspect during the preliminary investigation under Articles CARDINAL and QUANTITY of LAW :", "A suspect has the following defence rights : to know the accusation against him ; to make statements ; to adduce evidence ; to make requests ; to have access to the records of investigative measures carried out in his presence and to have access to the file submitted to the court confirming the lawfulness of and reasons for remanding him in custody ; to lodge challenges and complaints against the investigator 's decisions and actions ; to read this record after the interview , request its amendment and to make observations , which must be included in the record .", "I have also been informed that under ORG CARDINAL of the RSFSR Code of Criminal Procedure a suspect has a right of defence . For this investigative measure I required _ _ _ counsel ( appointed by an advocates ' office ; a lawyer named by me ; if no counsel requested – indicate a reason ... ) . ”", "The applicant made a handwritten statement indicating that he did not require counsel and that he would defend himself . This note bears his signature .", "The record of the interview also contains another handwritten note by the applicant in the following terms :", "“ I have been apprised of the content of LAW . For the time being I refuse to speak . ”", "This note bears the applicant 's signature .", "On TIME a medical assistant in the local sobering - up centre carried out a medical check of the upper part of his body ; no injuries were recorded . The applicant was then placed in the ORG temporary detention centre . The applicant was examined by a medical assistant and complained of “ pain all over the body ” . Blue bruises on the hip / thigh and blue injection marks on his arms were recorded . The medical assistant ascribed the marks to drug addiction and withdrawal symptoms . As can be seen from the applicant 's written statement made on DATE , he had been horse riding DATE before and had no complaints against any public official .", "On the investigator 's order , on CARDINAL DATE the applicant was examined by a medical expert . The examination was carried out in the presence of CARDINAL convoy officers . The report drawn up on DATE stated that the first applicant had no physical injuries .", "On DATE the applicant was examined by paramedics , who concluded that he was suffering from withdrawal syndrome . On DATE the applicant was examined in relation to abdominal pains and pain in the neck and in the thoracic spine area . It appears that he was given unspecified medicines .", "According to the ORG , the applicant had access to counsel PERSON on CARDINAL DATE , and on DATE he was interviewed in the presence of counsel and remained represented throughout the pre - trial investigation and trial .", "On DATE the applicant was transferred from the temporary detention centre to a remand centre .", "On DATE the applicant 's mother lodged a complaint with ORG of the Kurgan Region and the ORG town prosecutor , alleging that her son had been ill - treated in police custody :", "“ My son was arrested on CARDINAL May CARDINAL ... I became aware later on that on DATE he had been taken to section CARDINAL of the town department of the ORG and had been severely beaten and tortured by electric shocks in order to obtain confessions ... Ill - treatment continued later on ... The above was confirmed by my son 's former counsel NORP who told me on DATE that my son was being ill - treated . D. saw my son on DATE and called me , asking me to bring my son clean clothes . On CARDINAL May the lawyer told me that my son had been beaten again and had been given electric shocks ... On DATE I unsuccessfully asked investigator PERSON to let me see my son ... On CARDINAL May the investigator told me that he would hand over the clean clothes to my son if I refused to take away the old ones , which might be needed for an expert examination ... After the arrest my son named the lawyers he wanted to instruct ; since they were not available the investigator should have appointed legal aid counsel instead ... I was misled by the staff of the temporary detention centre about the withdrawal pains my son had allegedly been suffering from ... This did not make any sense to me ... On DATE I had brought some pain killers and asked – in vain – to call for an emergency squad for my son ... My son has a medullispinal hernia , which can be painful at times ... ”", "The complaint was forwarded for examination by the Shadrinsk Inter - District Prosecutor 's Office . A preliminary inquiry was ordered .", "During the inquiry the medical assistant of the sobering - up centre affirmed that no injuries had been recorded and that the applicant had made no complaints or allegations on DATE at or QUANTITY However , according to the on - duty officer of the temporary detention centre , on DATE at TIME the applicant had been brought to the temporary detention centre ; blue bruises and injections marks were visible on his body ; the applicant explained that he had sustained the bruises while horse riding and that he was a drug addict . As can be seen from a statement issued on DATE by the medical assistant of the temporary detention centre , on DATE the applicant complained of pain in the body ; the examination at TIME revealed blue bruises on the hip / thigh and blue injection marks on his arms ; the medical assistant ascribed these to drug addiction and withdrawal symptoms . According to her statement , the applicant was also seen on DATE for unspecified reasons , and on DATE on account of his complaints of pain in the neck and the thoracic spine area ; he had had no health - related complaints when transferred to the remand centre on CARDINAL DATE .", "A number of officers made written statements . Officer PERSON stated that he had brought the applicant to ORG DATE at or TIME ; investigative measures had been taken until TIME in the presence of investigator PERSON ; thereafter , the applicant had been brought to the sobering - up centre for an examination and then to the temporary detention centre ; he had not witnessed any ill - treatment against the applicant ( see also paragraph CARDINAL below ) .", "PERSON . stated that the applicant had been brought to the Unit on CARDINAL DATE ; investigator PERSON had also been present while some measures were being carried out ; no ill - treatment was inflicted on the applicant in the ORG and no signs of ill - treatment were visible on his body .", "Senior officer PERSON . made a similar statement ( see also paragraph CARDINAL below ) indicating that the applicant had been brought to the Unit on CARDINAL or CARDINAL DATE in the TIME .", "Officer PERSON stated that the applicant had been present on the LOC on DATE in the afternoon and that he had seen investigator PERSON and officers PERSON and Ya . with the applicant at TIME . Officer PERSON did not witness any ill - treatment .", "Lastly , investigator PERSON stated that he had issued an arrest warrant against the applicant and questioned him ; no ill - treatment had been inflicted on the applicant ; a medical expert had examined him on DATE and found no injuries .", "By a decision of DATE the ORG refused to institute criminal proceedings against the officers allegedly responsible for the first applicant 's ill - treatment . It was established that the applicant had been arrested on DATE and had been brought to ORG for investigative measures . Thereafter , he had been examined by a medical assistant of the sobering - up centre ; no injuries had been noted . The applicant was then brought to the temporary detention centre and examined by an “ on - duty ” officer ; the applicant explained that the bruising on his hips / thighs had been sustained before the arrest ( probably from horse riding ) ; no injuries had been found during his placement in the remand centre on DATE . In DATE the applicant made no complaint about his health and did not raise any allegations against any public official . Nor did he raise any allegations during the inquiry that had been initiated following his mother 's complaint .", "As can be seen from the decision of DATE , “ the persons concerned should be informed of the decision and the procedure for appealing against it ” . By a letter of the same date , the applicant 's mother was notified of the decision and of the possibility of appealing to a higher prosecutor .", "On an unspecified date Mr T. was appointed as counsel for the applicant . On DATE he sought a copy of a search order in respect of the applicant 's flat ; he also asked the investigator to allow the applicant visits from his family .", "A medical certificate dated DATE , issued by the local drug addiction hospital , states that the first applicant did not suffer from alcohol or drug addiction and did not require any related treatment while in detention .", "On DATE the first applicant complained to the PERSON prosecutor 's office supervising detention facilities about the events of CARDINAL and CARDINAL DATE and the investigation . The applicant made the following statement :", "“ On DATE ... I was interrogated in a particularly intensive manner , which I can describe if you so require . The officers tried to compel me to make confessions in respect of a criminal offence in which I was not involved and of which I knew nothing . At TIME investigator PERSON joined in . When physical violence temporarily ceased and the bag was taken off my head , investigator PERSON compelled me to make written statements ... He told me that he had witness statements against me ... For DATE in the temporary detention centre I made statements concerning my alibi on DATE of PERSON 's murder and the alleged animosity between myself and the above witness ... ”", "By a letter of CARDINAL DATE the applicant was informed that his renewed complaint had been dismissed by ORG because the inquiry had already resulted in a decision not to initiate criminal proceedings in relation to the alleged ill - treatment .", "On DATE the applicant was interviewed in the presence of counsel , pleaded not guilty , sought a face - to - face confrontation with the second applicant and then chose to remain silent .", "DATE the applicant sent several unspecified complaints from the detention facility to ORG . In DATE the applicant 's mother complained to the regional prosecutor about the inquiry into the allegation of ill - treatment .", "On DATE the second applicant ( Mr PERSON ) was brought to the above - mentioned ORG in GPE from a detention facility in the town of GPE .", "According to the applicant , he remained in the police car with a canvas bag on his head and received several blows from the convoy officers . In the ORG the officers connected wires to his little fingers and applied electric shocks . When he fainted they hit him on the head so that he would regain consciousness . A canvas bag was placed over his head , restricting the airflow . He could not bear the pain and admitted his complicity in the killing of a PERSON", "On DATE , TIME , the second applicant was questioned by investigator PERSON record of interview contains the following pre - typed standard wording :", "“ I have been informed that LAW CARDINAL of LAW , no one is required to testify against himself , his spouse or next of kin ... I have also been apprised of the rights of the suspect during the preliminary investigation under Articles CARDINAL and QUANTITY of LAW :", "A suspect has the following defence rights : to know the accusation against him ; to make statements ; to adduce evidence ; to make requests ; to have access to the TIME of investigative measures carried out in his presence and to have access to the file submitted to the court confirming the lawfulness of and reasons for remanding him in custody ; to lodge challenges and complaints against the investigator 's decisions and actions ; to read this record after the interview , request its amendment and to make observations , which must be included in the record .", "I have also been informed that under ORG CARDINAL of the RSFSR Code of Criminal Procedure a suspect has a right of defence . For this investigative measure I required _ _ _ counsel ( appointed by an advocates ' office ; a lawyer named by me ; if no counsel requested – indicate a reason ... ) . ”", "The applicant made a handwritten statement indicating that he did not require counsel and that he was not waiving his right on account of lack of means . This note bears his signature .", "The record of interview also contains another handwritten note by the applicant in the following terms :", "“ I have been apprised of the content of LAW . I agree to testify on the substance of the suspicion against me ” .", "This note bears the applicant 's signature . During this interview the applicant confessed to having been an accessory to ORG 's murder , committed , according to the second applicant , by the first applicant ( Mr PERSON ) . The record ended with a handwritten note stating that the second applicant had read the record , that it was correctly transcribed , that the applicant had no comment or objection to make , that he had been made aware of the video recording and had no comment to make on it . The interview was videotaped by officer Ba .", "On DATE the applicant was again taken to ORG , where the ill - treatment , namely beating him on the head , allegedly resumed . According to the applicant , while in a cell he cut the veins in both his arms , allegedly as a protest at the beatings and pressure put on him . According to the Government , the second applicant mutilated himself because the first applicant had put pressure on him while in GPE remand centre no . CARDINAL .", "After the second applicant had been provided with medical assistance , at an interview on DATE he was informed of his rights and pleaded innocent ; he declined legal assistance “ for this interview ” and refused to testify .", "On DATE the second applicant lodged a complaint with ORG , alleging that he had been forced to confess to the murder and to make false accusations against other persons :", "“ I urge you to carry out an inquiry and to stop the unlawful methods of investigation used against me by the officers of ORG . As a result of these , I was forced to made confessions on DATE . I complained to the regional prosecutor 's office but subsequently learnt that the complaint had not been forwarded ... On DATE I was brought to the Unit again and was forced to incriminate myself and others of various crimes . To overcome my resistance , the officers offered a visit from my family in exchange for a confession ; this was a form of psychological pressure ... Since I could not stand the pressure I cut my veins with a razor blade I found in the cell ... ”", "On DATE the applicant amended his statement , alleging that electric shocks had been administered on DATE ; that the waiver of legal assistance had been imposed on him ; that he had been told to be natural during the videotaping and to answer in line with the previously discussed version of the relevant events .", "An inquiry was ordered in relation to the second applicant 's allegation of ill - treatment . Officer PERSON stated that the applicant had been brought to ORG for interview with investigator PERSON ; the interview was videotaped ; no ill - treatment or pressure had been used against the applicant ( see also paragraph CARDINAL below ) . A similar statement was made by senior officer Ya . ( see also paragraph CARDINAL below ) . To a statement in similar terms investigator PERSON added that while the applicant had not requested counsel for the interview on DATE he had expressed the wish to have a consultation with a lawyer later on in the remand centre . PERSON . confirmed that he had videotaped the interview on DATE and that he had seen no beatings .", "The prosecutor also obtained a written statement from the applicant alleging that during his transfer to the ORG on DATE he had a canvas bag on his head ; in the ORG he had cables attached to his fingers and that electric shocks had been administered . The applicant alleged that on DATE he had received several blows from Unit officers ; that he could not identify them as he had a canvas bag on his head ; and that in reply to his request for counsel investigator PERSON had told him to write to the local bar association .", "On DATE the applicant was examined by a medical expert who found scars on his forearms and concluded that these scars could have been self - inflicted on DATE . The expert did not record any traces of electric torture or blows to the second applicant 's head .", "On DATE ORG office refused to institute criminal proceedings in relation to the alleged ill - treatment . The prosecutor relied on the above - mentioned statements and the expert report . He also noted that the applicant had not made any complaint while in the remand centre and that no injuries had been recorded there . The decision states that “ the persons concerned should be informed of the decision and the procedure for appealing against it ” .", "On DATE the second applicant asked for legal - aid counsel , referring to the lack of means to retain CARDINAL . The applicant was questioned in the presence of counsel on DATE and retracted the confession made on DATE as given under duress .", "On DATE investigator PERSON , who was also in charge of the criminal case against the applicant , refused to institute criminal proceedings , dismissing as unsubstantiated the second applicant 's renewed complaint of ill - treatment .", "On DATE the second applicant was interviewed in the presence of counsel and , having been apprised of the privilege against self - incrimination , asserted his innocence and remained silent .", "On DATE the investigator rejected a number of applications by the defence , indicating , inter alia , that the allegation of ill - treatment had previously been dismissed after the inquiries and that the case file contained the relevant decisions not to institute criminal proceedings .", "The applicant sent unspecified complaints to ORG from the detention facility in DATE and to ORG DATE .", "NORP In DATE and DATE the police questioned a PERSON in the framework of unrelated criminal proceedings . It appears that he was informed of his rights and declined the legal assistance offered to him . In substance , he stated that he had served as a driver for the applicants on DATE when PERSON 's murder had been committed and that he had heard about another murder , allegedly committed by the first applicant . ORG also stated that “ in DATE ” the second applicant had set a car on fire on the first applicant 's instructions ; the latter had unsuccessfully tried to extort a sum of money from the car owner ; the first applicant had then allegedly told PERSON that the second applicant had broken the car window , thrown a bottle of gasoline in the car and set it on fire . ORG confirmed his earlier statements during a face - to - face confrontation with the second applicant . However , on DATE PERSON retracted his statement , alleging ill - treatment in DATE and DATE . It appears that the authorities refused to initiate a criminal case against the officers .", "At the pre - trial stage , PERSON was interviewed as a witness regarding the arson charges against the applicants . She identified the second applicant from his general facial traits , in a line - up of CARDINAL persons , as the person she had first seen “ in or around DATE ” when he had tried to set a car on fire in the yard of the block of flats where she lived ; the second time was when he broke the car window and spilt gasoline in it . A lawyer and CARDINAL attesting witnesses were present at the line - up .", "The applicants and ORG were accused of several criminal offences , including murder and arson . The first applicant was charged with CARDINAL counts of murder , CARDINAL counts of instigation to destruction of property by arson , unlawful possession of firearms and extortion . The second applicant was charged with murder and CARDINAL counts of destruction of property by arson . The first count of destruction of property by arson was based on the statement of the victim of the arson attack who alleged that he had had “ tensions ” with the first applicant . That statement was partly confirmed by witness PERSON . The second count was based , in particular , on PERSON 's statement , an eyewitness who had identified the second applicant as the arsonist .", "On DATE ORG held the first hearing . The applicants pleaded not guilty to the murder and arson charges . The second applicant stated that his confession of DATE had been obtained under duress after TIME of torture . The applicants ' co - defendant ORG also stated that he had been severely beaten by police officers and , in consequence , had falsely denounced the applicants . He submitted that the officers had beaten him on the upper part of his body but that the blows had left no traces .", "PERSON was called to testify at the trial in relation to the second arson case ( concerning the events in DATE ) . According to a report dated DATE , a bailiff came to her home but she refused to appear before the trial court , alleging that she had to nurse her underage child .", "By a judgment of CARDINAL DATE ORG found the first applicant guilty on CARDINAL counts of murder , unlawful possession of firearms and on the second count of instigation to destruction of property by arson and sentenced him to DATE imprisonment . The second applicant was found guilty on the second count of the destruction of property by arson and of complicity in the above murder , and sentenced to DATE imprisonment . The court acquitted the second applicant of another arson count ( concerning the events in DATE ) and discontinued the related prosecution on that count against the first applicant .", "On the murder charges the trial court relied on the second applicant 's confession , various testimonies by other persons , certain forensic reports and physical evidence . The court dismissed the defendants ' allegations of ill - treatment as unsubstantiated because “ no injuries had been identified on the applicants ' bodies during the preliminary investigation ” .", "On the second arson charge , the trial court relied on ORG 's pre - trial statement ( see paragraph CARDINAL above ) , PERSON 's pre - trial identification report of the second applicant as the arsonist ( see paragraph CARDINAL above ) ; the victim 's and a witness 's statements that there had been “ tensions ” between the first applicant and the victim .", "The applicants appealed , alleging , inter alia , that the trial court had failed to summon various witnesses and had wrongly assessed some pieces of evidence , including the self - incriminating statements made by the second applicant and other persons . On DATE ORG of GPE upheld , in essence , the judgment of DATE . The charge against the first applicant of unlawful possession of a gas pistol was dropped . The appeal court considered that the trial court had rightly referred to S. 's statement because that person had seen the second applicant set fire to the victim 's car and had identified him as the arsonist . The appeal court also noted that PERSON 's statement and a statement from another person confirmed that there had been tensions between the first applicant and the victim .", "DATE . On DATE the Presidium of ORG , sitting in its supervisory - review capacity , acquitted the first applicant of unlawful possession of firearms and reduced his sentence to DATE and DATE .", "In DATE , in reply to requests from the deputy President of ORG , ORG and the ORG stated that in DATE and DATE they had not received any complaints from the applicants against the administrations of remand centres , investigating or prosecuting authorities or the police department or its units ( see also paragraphs CARDINAL and DATE above ) .", "In DATE Mr Ya . , senior officer of ORG at the relevant time , made a written statement ( see also paragraphs CARDINAL and DATE above ) , indicating that Mr PERSON had named the applicants as his accomplices in a number of offences . Thereafter , the second applicant was brought from PERSON remand centre no . CARDINAL to ORG and made confessions in respect of murdering victim PERSON and some other offences . The second applicant was questioned by investigator PERSON in relation to the murder ; Officer PERSON . was in charge of the video recording of the interview ; PERSON . was also present . The second applicant was then brought to PERSON remand centre no . CARDINAL . DATE he was brought to the ORG for questioning and a visit from his family . However , in the meantime , he cut his veins and was admitted to hospital for treatment . On DATE he was brought back to the ORG and retracted his earlier confessions in the presence of investigator PERSON and chose to remain silent . The applicant was brought back to the remand centre . Subsequently , it was established that the first applicant had tried to compel the second applicant to retract his confessions . Officer PERSON . also stated that in DATE the first applicant had been brought in for questioning . After his refusal to testify , he had been taken for a medical examination ( for unspecified reasons ) and had then been placed in the temporary detention centre of ORG . Both applicants had lodged numerous complaints against various officers of ORG . However , the inquiries had disclosed no unlawful actions on their part . Except for the murder of PERSON , the other episodes of criminal activity had been dealt with by the ORG office of the ORG .", "In DATE PERSON , a police officer in DATE , made a written statement ( see also paragraphs CARDINAL and DATE above ) according to which he had arrested the first applicant in DATE and brought him to ORG for questioning . No physical force had been used against him . Mr PERSON stated that he might have convoyed the second applicant from PERSON remand centre no . CARDINAL , but without recourse to any physical force or pressure .", "The LAW of the Russian Federation provides , in so far as relevant :", "“ Everyone shall be guaranteed judicial protection of his or her rights and freedoms . ”", "“ Decisions and actions or lack of action of ORG bodies , bodies of local self - government , public associations and officials may be appealed against in court ... ”", "The DATE LAW ( Federal Law No . CARDINAL - CARDINAL on appeals against acts and decisions infringing individual rights and freedoms ) , as amended in DATE , provides for a judicial avenue for claims against public authorities , except for those for which ORG is competent or for which another procedure is prescribed ( section CARDINAL ) . The LAW states that a decision or omission by a public authority or official can be challenged before a court if it encroaches on an individual 's rights or freedoms or unlawfully imposes an obligation or liability on that individual . In such proceedings the court is entitled to declare the impugned act , decision or omission unlawful , to order the public authority to act in a certain way vis - à - vis the individual , to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom . If the court finds the impugned act , decision or omission unlawful , this gives rise to a civil claim for damages against the ORG .", "NORP Under LAW ( CCrP ) , as in force at the relevant time , a prosecutor , investigator or judge was competent to examine complaints and information about any offence committed and to open or refuse a criminal investigation , or to transmit the matter to a competent authority ( Article CARDINAL ) . A prosecutor 's refusal to open a criminal investigation could be appealed to a higher prosecutor ; a judge 's refusal could be challenged before a higher court ( LAW ) .", "On DATE ORG of GPE invalidated LAW because it did not allow for judicial review of a prosecutor 's or investigator 's refusal to institute criminal proceedings . ORG ruled that ORG should amend the legislation on criminal procedure by inserting a possibility of review . It also held that until such amendments were enacted , the national authorities , including courts , should directly apply LAW of the LAW requiring a judicial review of administrative acts . The ruling was published in DATE .", "In a ruling of DATE ORG declared unconstitutional several provisions of the RSFSR CCrP authorising the courts to initiate criminal proceedings of their own motion . In the same ruling ORG reiterated that a court could carry out a judicial review of an investigating authority 's decision to open a criminal case , to refuse to initiate criminal proceedings or to discontinue such proceedings , in particular on a complaint of a person that his or her constitutional rights had been breached by such a decision . The ruling was published in DATE .", "Under LAW , a suspect has the following rights : a right to know the accusation against him ; to make statements ; to have access to the record of investigative measures ; to lodge complaints ; from the time of the arrest to have meetings with counsel , his next of kin or other persons .", "Article CARDINAL of the RSFSR CCrP provided that counsel could participate in the proceedings from the time when a person was informed of the charges against him or her . If a suspect was arrested or detained , counsel could participate in the proceedings from the time when the suspect was given access to the arrest record or detention order . In its ruling of DATE ( no . ORG ) ORG held that LAW ORG was contrary to LAW in so far it excluded the possibility of legal representation at the very first stages of the proceedings , that is , before any charges were brought or before access was given to the arrest / detention record .", "The participation of counsel was mandatory in pre - trial proceedings from the date on which charges were brought in respect of offences punishable by the death penalty and in the court proceedings concerning such offences ( LAW ) . If counsel was not retained by the person concerned , the authority in charge of the case had to appoint one ( ibid ) . The defendant could waive legal assistance ; such a waiver could be opposed by the authority in charge of the case if the case concerned offences punishable by the death penalty ( LAW ) .", "Article CARDINAL of the Criminal Code provided for the death penalty as a punishment for particularly serious criminal offences against human life , such as aggravated murder .", "Article CARDINAL of the LAW guarantees the protection of human dignity and prohibits torture , violence and inhuman and degrading treatment and punishment . LAW punishes torture , in particular when inflicted in order to compel the person concerned to make statements or to perform other acts contrary to the person 's will , as a punishment or for other ends . LAW prohibited compelling another to make a statement through the use of violence , threats or other unlawful means against the accused or other persons involved in the proceedings .", "Article CARDINAL CARDINAL of LAW prohibits reliance in a court of law on evidence obtained in breach of federal law . In a ruling of CARDINAL DATE ORG of GPE held that such a breach occurred when the gathering and admission of evidence resulted in a violation of the constitutional rights and freedoms or of the criminal law procedure , as well as when the gathering and admission of evidence was carried out by an authority lacking competence or acting in breach of the applicable procedural rules ( point CARDINAL ) .", "Article CARDINAL § CARDINAL of MONEY Procedure provided at the time that evidence obtained unlawfully should be declared devoid of legal force and should not serve as a basis for a prosecution or for proving relevant circumstances such as the damage caused by the criminal offence .", "Article CARDINAL of the DATE Code of Criminal Procedure provides that criminal proceedings may be reopened if ORG has found a violation of the Convention ." ]

[ "6" ]

[ "6-1" ]

[]

[ "3" ]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant ’s brother brought restitution proceedings before ORG ( městský soud ) against ORG ( podnik bytového hospodářství ) .", "DATE and DATE , the court and the parties to the proceedings took a number of procedural steps , including a query by the court on DATE regarding a possible settlement , to which the defendant replied on DATE .", "On DATE the applicant requested the court to be added to the proceedings as a second claimant . His request was granted at a hearing held on DATE , which was then adjourned sine die , the claimants being requested to complete , within DATE , their action .", "On DATE the claimants were urged to supplement their action .", "On DATE the court granted the PERSON request that CARDINAL other defendants be added to the proceedings . At the same time , it invited the claimants to present documentary evidence .", "On DATE the court dismissed CARDINAL of the GPE appeals of DATE against the previous decision . On DATE it requested that evidence suggested by the applicant be adduced .", "A hearing held on DATE was adjourned until DATE . However , on DATE it was again adjourned sine die , the plaintiffs’ submissions and claims still being unclear .", "A hearing held on DATE was adjourned in order to complete the evidence . On DATE the applicant adduced further documents in evidence . On CARDINAL DATE the court invited the parties to submit their final written pleadings .", "In a judgment of DATE ORG dismissed the claimants’ restitution action .", "On DATE and DATE and DATE respectively , the court received the PERSON appeals . According to the applicant , his appeal was dated DATE .", "On DATE ORG sent the case file to ORG ( krajský soud ) which , on DATE , invited the applicant to clarify , within DATE , his challenge to ORG presiding judge for bias . On DATE the applicant complied , mentioning at the same time his new domicile . On DATE , ORG remitted the case file to ORG , inviting the presiding judge to submit her comments . On DATE the judge replied that she did not feel impartial .", "On DATE ORG informed ORG ( městské státní zastupitelství ) that the applicant ’s wording in his appeal of DATE had to be interpreted as a criminal claim against ORG presiding judge , with which the court could deal . On DATE ORG informed the court that the motion in question could not be considered as a criminal claim .", "On DATE ORG quashed the first instance judgment and remitted the case to ORG , stating that the judgment lacked sufficient reasoning , which consisted in mere references to the legal opinions of the parties and to facts presented by them . It also disqualified ORG presiding judge from considering the applicant ’s case , as she had herself filed a request to be withdrawn , whilst rejecting the applicant ’s allegation of anti - Semitism .", "On DATE ORG ( PERSON ) declared the applicant ’s constitutional appeal ( ústavní stížnost ) of DATE inadmissible , stating inter alia that , although the restitution proceedings were long , ORG had acted in the meantime by rendering its decision on DATE .", "On DATE the applicant , having received ORG decision on DATE because , according to the Government , he had changed his domicile in the meantime , suggested a modification of the restitution action and the defendants . On DATE his brother informed the court that he agreed with these modifications . On DATE CARDINAL of the defendants submitted its comments .", "On DATE ORG took a partial decision on the applicant ’s request that the original action be modified .", "On DATE the applicant appealed challenging , at the same time , the presiding judge for bias . Therefore , on DATE , the case file was sent to ORG .", "The applicant lodged a constitutional appeal , requesting ORG to recognise the delays in the proceedings and to quash certain statutory provisions . On DATE ORG rejected this appeal as being manifestly ill - founded .", "On DATE ORG partly upheld ORG decision of DATE . It also decided that the presiding judge was not excluded from the examination of the restitution case . ORG decision became effective on DATE .", "On DATE ORG invited the claimants to specify the defendants in their restitution case . On DATE the applicant replied , but not his brother .", "According to the applicant , ORG held a hearing on DATE . On DATE the applicant , following ORG request of DATE , expressed his opinion on the case .", "On DATE ORG refused the PERSON request that the defendant party be modified .", "On DATE ORG partly granted the claimants’ restitution action .", "On DATE the claimants appealed . It appears that the proceedings are still pending ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in the village of GPE .", "Her minor son PERSON , who was DATE at the time of the events , was frequently suspected of committing petty thefts and was taken to the police station on numerous occasions . No criminal proceedings were ever instituted against him because of his age . On several occasions he complained about being beaten up by police officers PERSON and GPE and his mother lodged criminal complaints against them . On DATE the applicant complained to ORG that on DATE her son had been ill - treated by police officers PERSON and GPE , as a result of which he had sustained concussion and multiple bruises .", "On DATE at TIME , police officer PERSON came to the applicant 's house and demanded that her son accompany him to the police station because he was suspected of being involved in a theft from a neighbour , which had taken place on DATE . According to the Government , the police officer demanded that both the applicant and her son accompany him to the police station . The applicant refused to let her son go unless he was properly summonsed .", "DATE the same police officer came to her house accompanied by police officer GPE and CARDINAL neighbours . Since the gate was locked , the police officers asked CARDINAL neighbour to climb over and unlock it from the inside .", "One of the police officers announced to the applicant that she was being taken to the police station on a charge of committing the administrative offence of disobeying the lawful orders of a police officer , provided for by LAW ( “ the ORG ” ) .", "The applicant was taken by the QUANTITY police officers to the village police station . They did not let her change her clothes or slippers , although she did put on a coat .", "On the way to the police station , according to statements of witnesses , as they appear in the domestic case file , the applicant was attacked by the neighbour who was the victim of the alleged theft and fell down during the altercation . The police officers intervened and handcuffed the applicant . The ORG argued that the applicant had attacked her neighbour and that her fall was a result of the altercation .", "When they arrived at the police station she was asked to sign a declaration written by CARDINAL of the police officers , but she refused . CARDINAL witnesses , who came along with them , signed declarations written by the police officers , allegedly without reading them .", "She was then taken by car to the town of ORG and placed in a cell at the local remand centre , where she was held from TIME on DATE until TIME on DATE .", "While in detention she was not given the opportunity to wash herself or to change her clothes . She was not provided with food or water or with a blanket . She was not questioned , informed about the reasons for her detention or provided with a lawyer .", "On DATE Decembe DATE the applicant was taken to ORG for the hearing in respect of the alleged offence of disobeying the lawful orders of a police officer in accordance with Article CARDINAL § CARDINAL of the ORG .", "According to the applicant , she was taken to the court wearing her slippers and her clothes , still covered in mud . During the hearing the applicant asked for a lawyer and a pro bono lawyer was provided to her .", "At her lawyer 's request the hearing was adjourned until DATE . On DATE , witnesses were heard by the judge .", "In a judgment of DATE the NORP ORG found the applicant guilty of disobeying the lawful orders of the police officers and imposed a fine of CARDINAL PERSON ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) . The ORG found that on DATE at TIME CARDINAL police officers had asked the applicant to come with her minor son to the police station in order to be questioned in connection with a theft in which her son was suspected of having been involved . By refusing to accompany the police officers , she had committed the offence provided for in Article CARDINAL § CARDINAL of the ORG .", "On DATE criminal proceedings were formally instituted in respect of the theft allegedly committed by the applicant 's son .", "On an unspecified date the applicant lodged an appeal on points of law with ORG against the judgment of DATE . She submitted , inter alia , that the actions of the police officers had been motivated by a desire for revenge following her complaint lodged with ORG against them on DATE in connection with the unauthorised search and the alleged beating of her son . She also submitted that the police officers ' orders were unlawful because she had not been summonsed to appear at the police station ; however , when the police officers had insisted that she follow them she had not shown any resistance and had obeyed them .", "On DATE the ORG heard the applicant 's appeal in her absence and dismissed it as being unfounded , without stating any reasons . It appears from the case file that the applicant was not summonsed to appear before the court and was not legally represented during the proceedings .", "On DATE and DATE the applicant complained to ORG about the illegal actions of the CARDINAL police officers . She argued , inter alia , that they had illegally entered the front garden of her house and that they had subjected her to inhuman and degrading treatment , and asked ORG to institute criminal proceedings against them .", "On DATE ORG decided not to institute criminal proceedings . It found that since the applicant had been convicted by a final judgment of the offence of disobeying the lawful orders of police officers , the officers ' actions could not be considered illegal .", "Article CARDINAL of the LAW of GPE provides as follows :", "“ Inviolability of the home", "( CARDINAL ) The home is inviolable . No one may enter or stay on the LOC of a home without the owner 's consent .", "( CARDINAL ) The law shall allow for derogation from the provisions of paragraph ( CARDINAL ) under the following circumstances :", "( a ) for executing an arrest warrant or a decision of a court of law ;", "( b ) for forestalling an imminent danger threatening the life , physical integrity or property of a person ;", "( c ) for preventing the spread of an epidemic disease .", "( CARDINAL ) Searches and questioning at a person 's home may be ordered and carried out only in accordance with the rule of law .", "( CARDINAL ) Except for cases where an obvious offence has been committed , TIME searches are forbidden . ”", "The Code of Criminal Procedure , as in force at the material time , provided in LAW that after receiving a complaint about a criminal offence the investigating body could only request supplementary material or explanations but could not conduct any investigative measures until after criminal proceedings had been formally instituted . It had to decide within DATE whether or not to institute criminal proceedings . In exceptional cases such a decision was to be taken within DATE . The provision that a preliminary investigation could only be commenced after the formal institution of criminal proceedings was also contained in Articles CARDINAL and CARDINAL .", "Article CARDINAL provided that a suspect was to be summonsed to appear before the investigating body by means of a summons handed to him , and the receipt containing the date of service had to be returned to the criminal investigator . The summons could also be effected by telephone or telegram . Article CARDINAL provided that a suspect who failed to appear before the investigating body without good reason could be forcibly brought before the investigating body . Only suspects who were in hiding or did not have a permanent home address could be taken to the police without a summons .", "The relevant provisions of the ORG , as in force at the material time , read :", "“ Non - compliance in bad faith with the lawful orders of a police officer or of an agent of the internal affairs authorities ... shall be punishable by a fine of up to MDL CARDINAL or by administrative detention of DATE .", "...", "“ Persons who ... disobey in bad faith the lawful orders of police officers ... may be detained until the case is examined by a court ... ... ”", "LAW of DATE , in so far as relevant , read at the material time as follows :", "“ The police have the right to :", "( CARDINAL ) enter at any time of DATE the premises of homes ... front gardens ... and inspect them with a view to putting an end to criminal offences , pursuing persons suspected of having committed criminal offences , persons hiding from the investigating authorities and from courts , or persons who are seeking to avoid executing a criminal or administrative sentence or an order for forced detoxification treatment . [ The police may also enter ] if they have sufficient grounds to believe that an offence has been committed or is being committed on the LOC , or in the event of natural disasters and in other circumstances which endanger the public order and the safety of persons . A prosecutor must be informed about all cases in which police officers have been forced to enter the LOC of homes ... within TIME . ”", "The relevant provisions of Law No . DATE on compensation for damage caused by the illegal acts of the criminal investigating authorities , prosecuting authorities and courts read as follows :", "“ ( CARDINAL ) In accordance with the present law , individuals and legal entities are entitled to compensation for the non - pecuniary and pecuniary damage caused as a result of :", "( a ) NORP illegal detention , illegal arrest , illegal indictment or illegal conviction ;", "( b ) illegal searches carried out during the investigation phase or during trial , confiscation , levy of a distraint upon property , illegal dismissal from employment , as well as other procedural acts that limit the person 's rights ;", "( c ) NORP illegal administrative arrests or orders to perform community service , illegal confiscation of property or illegal fines ;", "( d ) the carrying out of unlawful investigative measures ;", "( e ) the illegal seizure of accounting documents , other documents , money or stamps and the freezing of bank accounts .", "( CARDINAL ) The damage caused shall be fully compensated , irrespective of the degree of fault of the criminal investigating authorities , prosecuting authorities and courts .", "“ A person shall be entitled to compensation in accordance with the present law when CARDINAL of the following conditions is met :", "( a ) delivery of a judgment acquitting him / her ;", "( b ) the dropping of charges or discontinuation of the investigation on the ground of rehabilitation ;", "( c ) NORP the adoption of a decision by which an administrative arrest is annulled on the grounds of rehabilitation ;", "( d ) the adoption by ORG or by ORG of a decision in respect of damages or in respect of a friendly - settlement agreement between the victim and the representative of ORG before ORG . The friendly - settlement agreement shall be approved by ORG ; ... ”" ]

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

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

[]

[]

[]

[]

[ "The applicants , whose names are listed in the appendix , are NORP nationals and live in GPE . Before the Court , they were represented by PERSON , a member of ORG .", "The facts of the case , as submitted by the applicants , may be summarised as follows .", "The applicants are pupils at ORG in the Eyüp , ORG , PERSON , PERSON and NORP districts of GPE , and their parents . ORG are State - funded religious schools .", "The applicants explained that , with certain exceptions , on enrolling at ORG the pupils concerned had produced identity photographs that showed them wearing the headscarf . The pupils had always worn the NORP headscarf to school , in accordance with both their own and their parents ' religious beliefs . As a general rule , they had started to wear the NORP headscarf at the onset of puberty at the age of CARDINAL .", "However , from DATE pupils wearing the headscarf had been refused access to the schools . Pupils attending school in the headscarf had been seen by the school educational psychologist , who had attempted to justify the need for the rules . These measures were based on a directive which ORG had issued to the district education officers on DATE . The relevant sections of the directive provided :", "“ Pupils are enrolled at ORG only once a document signed by the parents has been lodged confirming that the pupils will comply with the rules on dress . In addition , a letter was sent on DATE requesting compliance with this practice .", "However , we have been informed that a small number of pupils do not comply with the rules on dress .", "Their persistent failure to comply with the rules shows that they are not acting innocently . Their decision to wear the headscarf at school thus amounts to a rejection of the rules on dress and a protest against the education system .", "That being so , disciplinary proceedings will be taken against head teachers or members of the teaching staff who fail to ensure rigorous compliance with the rules on dress ... Furthermore , all sporting , cultural and social activities that are liable to cause tension at school and unsettle the pupils must cease and links between the schools and associations , foundations and boarding schools [ promoting such practices ] must be severed .", "In the light of this , you are requested to take all necessary measures to reintegrate these pupils into our education system , to refuse pupils who do not obey the rules on dress access to school LOC and to institute disciplinary proceedings against them without delay under LAW in Secondary Schools dependent on ORG [ ORG Ortaöğretim Kurumları Ödül ve PERSON – ' the disciplinary rules ' ] . [ Likewise , ] proceedings must be brought against head teachers or members of the teaching staff who fail to apply the disciplinary rules diligently . ”", "On DATE a further memorandum issued by the Chief Education Officer at ORG was sent to the district offices . The relevant sections of the memorandum stated :", "“ The İmam - Hatip Secondary Schools are vocational secondary schools that are part of our ORG education system ...", "It would appear that some girls in these schools do not comply with the rules on dress . Their acts are concerted and conscious and the girls are supported by certain groups outside the school which are exploiting this issue . [ Consequently , ] it is clear that these girls are , under the political and ideological influence of groups both inside and outside the school , putting pressure on head teachers , members of the teaching staff and pupils who do not share their views . [ It is further established that , ] although they attend school , neither they , nor their supporters among the boys , go to classes .", "On enrolling , all pupils in these schools are informed of the school rules and give a written undertaking to comply with them . However , with the help of their supporters , some pupils have for ideological reasons stated and demonstrated by their conduct a determination to pursue their studies without obeying the rules .", "Rule DATE . of the Rules on Dress for Staff and Pupils in GPE dependent on ORG and ORG ( no . DATE of DATE ) states : ' On school premises , girls shall not wear any head covering and their hair shall be clean and tidy ' ...", "An exception to this rule is made in Rule ORG ) , which provides ' [ i]n PERSON - Hatip schools , girls may cover their heads only during Koran lessons ' .", "Further , in judgment no . ORG dismissed an appeal brought by a parent whose daughter , a pupil at an ORG , was required to remove her headscarf under the disciplinary rules published in ORG of DATE . It found that ' such behaviour at school is the symbol of a vision that is contrary to the fundamental principles of the Republic ' .", "Accordingly , it is necessary to ensure continuity within the education system and to make schools accessible to everyone by establishing a calm environment at school and harmonising practice when applying the rules to pupils who do not obey the rules on dress or wish to pursue their studies ... ”", "The memorandum characterised the failure to comply with the rules on dress as a concerted attack on the fundamental principles of the Republic and gave the head teachers CARDINAL instructions on how to deal with breaches . In the first instance , pupils were to be informed of the relevant rules , which were to be applied strictly . In the event of repeated transgressions , the pupil was to be given an immediate warning and disciplinary proceedings were to be commenced . The head teachers were also requested to prevent those who supported such misconduct for political and ideological ends from meeting within the vicinity of the school .", "The applicants produced to the ORG eleven documents signed by a group of people ( pupils , parents and third parties ) who had gathered outside FAC and PERSON attesting that on DATE , CARDINAL , DATE , DATE and DATE , the head teachers , accompanied by members of the security forces , had prevented pupils wearing the headscarf from entering the schools .", "At TIME on DATE a meeting was organised outside ORG . According to a report by the security forces , CARDINAL PERSON , who claimed to be a member of ORG ( an association formed by former pupils of ORG ) , was arrested on suspicion of provocation . The report also stated that CARDINAL headscarf - wearing pupils had demonstrated outside the school shouting slogans such as “ If you are in [ the school ] , come on out ” , “ ORG ! Do not sleep ! Defend your pupils ” , “ ORG , do not sleep ! Your turn will come ” . After warnings by the security forces , CARDINAL pupils were taken to the police station at TIME that same day for identity checks . They were released at TIME", "Similarly , at TIME on DATE CARDINAL of the applicants , PERSON , the father of PERSON , a pupil at FAC , was arrested by police officers at a gathering outside the school and taken to Kadıköy police station . He was accused of inciting pupils to disobey the rules on dress . He was released at TIME , after the police had taken a statement .", "On DATE one of the applicants , PERSON , lodged a request with ORG for a declaration that the head teachers of ORG had prevented her from wearing her headscarf to school as her religious beliefs required . ORG decided DATE that it had no jurisdiction to hear the request .", "A further request to the same end was rejected by ORG on DATE . It found that there was no reason to make any declaration since the act complained of was lawful .", "In the meantime the applicants lodged a criminal complaint against the head teachers of ORG and the police . They alleged that denying pupils wearing the headscarf access to school violated their fundamental right to education and was therefore a criminal offence .", "The applicants have produced to the ORG a decision dated DATE in which the public prosecutor at ORG declared a complaint against ORG unfounded after deciding that his actions complied with the rules on dress .", "The applicants have also produced an opinion issued by ORG attached to ORG Office on DATE after CARDINAL petitions were lodged .", "Citing the principle of secularism enunciated in LAW and the risk that the principle of neutrality in ORG education would be undermined , arguments that had already been expounded at length by ORG in a judgment of DATE , ORG concluded that the rules on dress were consistent with the LAW and human rights . It noted that the ORG was required by LAW to take measures to uphold fundamental rights such as freedom of religion and the right to education , and stated that the existence of the ORG schools showed that the ORG had taken concrete measures to secure those rights . It further pointed out that , by its very nature , the right to education required ORG regulation .", "In that connection , ORG noted that the main reason the rules on pupils ' dress had been introduced was to protect the principle of secularism and added that the country 's highest courts had on a number of occasions ruled that the rules were consistent with constitutional principles . Furthermore , the pupils who had not complied with the rules on dress had been informed of the reasons for the rules on enrolling at the school and had given a written undertaking to comply with them . However , the pupils concerned and those who supported them for ideological reasons had shown that they did not intend to abide by the rules . ORG concluded that such conduct was not protected in a ORG committed to the rule of law .", "At the same time , on DATE a parliamentary commission which had been set up to look into the events that had taken place in ORG in GPE in DATE adopted its opinion . It noted in particular that the forcible removal of certain pupils by the security forces had caused social unrest . Consequently , it advised against any further use of force . It also noted that the events had occurred as a result of the rules on dress for which ORG and the executive were responsible .", "Article CARDINAL , in its relevant parts , provides as follows :", "“ Everyone shall have the right to freedom of conscience and religious conviction .", "...", "No one shall be compelled to participate in prayers , worship or religious services or to reveal his or her religious beliefs and convictions ; no one shall be censured or prosecuted for his religious beliefs or convictions .", "Education and instruction in religion and ethics shall be provided under the supervision and control of ORG Instruction in religious culture and in morals shall be a compulsory part of the curricula of primary and secondary schools . Other religious education and instruction shall be a matter for individual choice , with the decision in the case of minors being taken by their legal guardians . ”", "Section CARDINAL of LAW ( PERSON no . DATE , which was published in ORG of DATE ) , provides :", "“ Secularism is the cornerstone of the NORP State - education system . Religious culture and moral instruction are among the compulsory subjects taught in primary and secondary schools and other schools of the same level . ”", "Rules CARDINAL and CARDINAL of the Rules on Dress for Staff and Pupils in GPE dependent on ORG and ORG ( DATE ) lay down the rules governing pupils ' dress . The relevant parts provide :", "“ a. Girls", "Girls shall wear a black uniform with a white collar . On school premises , they shall not wear any head covering and their hair shall be clean and tidy . Long hair should be worn in plaits and tied ...", "b. Boys", "Boys shall wear a jacket , shirt and trousers . They shall wear a tie ... ”", "“ a. Girls", "Girls shall wear a non - revealing knee - length sleeveless uniform without splits . The colour of the uniform shall be decided by the school . Beneath the uniform , a short - sleeved or long - sleeved blouse with closed collar or , depending on DATE , a pullover shall be worn that matches the uniform . On school premises , girls shall not wear any head covering and their hair shall be clean and tidy . Long hair should be worn in plaits and tied ...", "b. Boys", "Boys shall wear a jacket , shirt and trousers . They shall wear a tie ...", "c. Girls and boys", "( CARDINAL ) In workshops , laboratories or other places of work , they shall wear an apron or dungarees .", "( CARDINAL ) For sports lessons and activities , pupils should wear the dress recommended by the school administration .", "( CARDINAL ) In PERSON - Hatip schools , girls may cover their heads only during Koran lessons ... ”", "Rule CARDINAL of the Rules for Promoting and Ensuring Discipline in Secondary Schools dependent on ORG published in ORG of DATE ( PERSON Ortaöğretim Kurumları Ödül ve PERSON ) provides that the penalty for failing to comply with the rules on dress is a reprimand .", "It also lays down that the penalty for wearing symbols that are liable to result in discrimination or for acting with intent to isolate , rebuke or show contempt for a person or group of persons on account of their language , sex , political ideas or philosophical beliefs , race , religion or branch of a religion is temporary suspension .", "In a judgment of CARDINAL DATE that was published in ORG of CARDINAL DATE , ORG ruled that a statutory provision permitting the headscarf to be worn in higher - education institutions on religious grounds was unconstitutional , as it contravened the principle of secularism laid down by LAW . It stated that the principle of secularism intrinsically encompassed religious neutrality and precluded the grant of privileges to individual religions . It considered the headscarf to have obvious religious connotations . In GPE , where the majority of the population were NORP , presenting the wearing of the NORP headscarf as a mandatory religious duty would result in discrimination between practising NORP , non - practising NORP and non - believers on grounds of dress , with anyone who refused to wear the headscarf undoubtedly being regarded as opposed to religion or as non - religious . Accordingly , allowing the headscarf to be worn would be liable to undermine order both inside and outside the university ( for a more detailed summary of ORG judgment , see PERSON v. GPE [ ORG ] , no . CARDINAL , § DATE , ORG CARDINAL-XI ) .", "The İmam - Hatip Secondary Schools were set up in DATE under LAW ORG ( Merger ) LAW no . CARDINAL ) , which was passed on CARDINAL DATE . They form part of ORG - education system and are dependent on ORG . They are not denominational schools .", "Section CARDINAL of LAW defines ORG as follows :", "“ The İmam - Hatip Secondary Schools are secondary - level teaching institutions opened by and dependent on ORG . They shall provide vocational teaching for religious functionaries such as imams , hatips [ readers of the Koran ] and teachers of the Koran . They shall offer a curriculum providing vocational training and preparation for higher education . ”", "PERCENT of the subjects taught in these schools are primarily aimed at teaching NORP theology . The remainder of the curriculum is taken up by general subjects . According to information furnished by the applicants , in DATE there were CARDINAL İmam - Hatip Secondary Schools in GPE attended by CARDINAL pupils . Once they have completed their secondary - school education , pupils may enrol at the theology faculties after sitting a general examination . Parents send their children to these schools not just to enable them to become future religious functionaries but also to allow them to pursue advanced studies in general subjects while at the same time receiving a sound religious grounding . Many practising families who are dissatisfied with the limited time and facilities devoted to religious studies in the general education system have philosophical affinities with the curriculum offered by the vocational schools for religious functionaries . A section of the population has thus deflected these schools from their original purpose DATE which was to train modern , professional clerics – and has gradually turned them into general secondary - education schools with a religious vocation ( for more detailed information , see “ Teaching of religion and morals in the NORP education system ” , PERSON and GPE , ORG in LOC , www.flwi.ugent.be ) .", "Furthermore , a form of religious instruction has been organised in most parts of GPE in the form of courses on the Koran ( PERSON ) . These courses are not part of ORG curriculum but are run under the auspices of ORG , the senior authority responsible for overseeing the management and conduct of NORP affairs in GPE .", "Section CARDINAL of the Assemblies and Processions Act ( Law no . CARDINAL ) , which came into force on DATE , provides :", "“ In order for a meeting to be held , the regional or provincial governor 's office for the area in which the demonstration is to take place must be given TIME notice before the start of the meeting . Notice must be given during TIME and be signed by all the members of the executive board ... ”", "Section CARDINAL of the LAW prohibits assemblies and processions on the public highway , or in parks , places of worship or buildings occupied by public authorities . Assemblies on the public highway have to comply with the safety regulations and must not impede members of the public or public transport . Lastly , section CARDINAL lays down that assemblies or processions that do not comply with the provisions of the LAW shall be broken up by the regional security forces after a warning has been issued to the participants ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE upon GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "NORP In DATE , the applicant was convicted of attempted rape which had taken place on DATE . Given his history as a serial sexual offender , he was sentenced to life imprisonment . His DATE tariff expired in DATE and he was released on life licence on DATE .", "In DATE , while on day release from that sentence , the applicant purchased a ticket for ORG . He won a sum in the region of GBP CARDINAL .", "NORP The news reached the victim of the DATE rape , PERSON had been unable to sue the applicant for damages at the time of the offence because he was impecunious . She had , however , received a sum in the region of GBP CARDINAL,CARDINAL in compensation from ORG .", "Upon hearing the news , PERSON proceeded to seek damages against the applicant for trespass to the person .", "On DATE , PERSON issued her claim form seeking damages . The applicant sought legal advice from his solicitors and Counsel .", "His barrister , a Queen ’s Counsel , warned the applicant that there was a risk of his losing , as in any litigation . Given the well - established case - law on the matter , as explained by his legal representatives , however , the applicant felt that he could rely on the certainty of the law in this area to pursue his defence that PERSON claim was time - barred .", "Accordingly , on an unspecified date , the applicant rejected an offer made by PERSON to settle the action for a sum in the region of GBP CARDINAL .", "On DATE PERSON action was struck out by PERSON on the ground that it was time - barred pursuant to LAW CARDINAL of LAW DATE ( “ the DATE LAW ) . The general rule , contained in section CARDINAL of LAW , was that the period of limitation for an action in tort was DATE from the date on which the cause of action accrued ( see paragraph CARDINAL below ) . In Mrs A ’s case , the cause of action had arisen DATE before the issue of the claim form and so was time - barred .", "On an unspecified date , PERSON was granted leave to appeal .", "Before the High Court judge , the argument focused on the question whether PERSON action was one to which LAW applied . LAW of LAW , upon which PERSON sought to rely , covered actions for damages based on negligence , nuisance or breach of duty where the damages were in respect of personal injuries ( see paragraph CARDINAL below ) . The limitation period for such actions was DATE , either from the date on which the cause of action accrued or the date of knowledge of the person injured , as defined in section CARDINAL of the CARDINAL Act . In addition , section CARDINAL of the DATE Act gave the court a discretion to extend that DATE period when it appeared that it would be equitable to do so ( see paragraph CARDINAL below ) . It was the applicant ’s case that section QUANTITY applied and was a bar to Mrs A ’s claim .", "On DATE PERSON sitting in ORG dismissed PERSON appeal . He concluded that , following ORG decision in PERSON v PERSON [ DATE ] ORG CARDINAL , PERSON claim was covered by LAW rather than LAW .", "NORP In his judgment , PERSON recalled that ORG in PERSON had held that claims for injuries arising from complaints of deliberate assault or trespass to the person , such as PERSON , were subject to the nonextendable DATE limitation period imposed by section CARDINAL . As regards the meaning of the words “ breach of duty ” contained in LAW , he noted that in his speech , Lord PERSON had held that these words were not to be construed as including actions based on intentionally inflicted injuries , such as rape or indecent assault .", "PERSON further rejected PERSON contention that her right of access to court contained in LAW had been breached . In particular , he relied on the ORG ’s judgment in PERSON and Others v. GPE , DATE , Reports of Judgments and Decisions DATE , in which a majority had found no violation of LAW ground that the limitation period contained in LAW , as interpreted by ORG , constituted a proportionate restriction on the right of access to court .", "Finally , PERSON referred to the comprehensive review of the law of limitation carried out by ORG and laid before ORG in DATE : Limitation of Actions ( Law Com No CARDINAL ) ( see paragraphs CARDINAL - CARDINAL below ) . He noted however that :", "“ CARDINAL . ORG Report has not yet been implemented . I have no information as to what the ORG ’s intentions may be . There is a hint in paragraph CARDINAL of ORG judgment in PERSON that , if Member States - that is primarily their legislatures , do not act , ORG would at DATE take a second look at the issue with possibly a different outcome . If that moment arrived for ORG , a national court considering the issue would be in no different position . On this analysis the issue for me is whether that moment has arrived . I do not consider that the passage of DATE since the ORG is so long a period that what was within the ‘ margin of appreciation’ has ceased to be so . ”", "Accordingly , PERSON ordered that PERSON A should pay the applicant ’s costs in defending PERSON appeal . PERSON appealed .", "In DATE , ORG heard PERSON appeal together with CARDINAL other appeals , namely H v ORG and X and Y v ORG , which both concerned schoolboys who had been sexually abused by their teachers . The common feature of these appeals was that the claim in each case had been brought DATE after the sexual abuse in question ( or , in H and X and Y , after the schoolboys who had been abused had reached DATE ) .", "In its judgment of DATE , ORG dismissed all the appeals . ORG began with a detailed review of the background to LAW ; it examined both the respective decisions of ORG and ORG in PERSON as well as subsequent cases . As to ORG report on the law of limitation of DATE , ORG observed that :", "“ CARDINAL . ... The remedy has now been in ORG ’s hands for DATE following a comprehensive law reform study conducted at considerable public expense . Although the ORG ’s recommendations would not have affected cases in which the defendant already possessed an accrued limitation defence under existing legislation , justice would be far more simply achieved in claims like this in future if ORG were to simplify the law along the lines the ORG recommended . In the meantime , ORG itself may be able to remedy some of the very serious deficiencies and incoherencies in the law as it stands DATE in a way that we can not . ”", "As to the argument that ORG had been wrongly decided by ORG , ORG held that it was bound by that decision of the ORG . ORG noted however that both the cases decided since ORG and the detailed analysis of ORG in its comprehensive DATE report pointed to some very unsatisfactory features of the law as it applied to sexual abuse cases ( at paragraphs CARDINAL - CARDINAL of the judgment ) .", "The Court of Appeal further held , after a detailed examination of the relevant authorities , that because the DATE limitation period had expired before LAW ( “ HRA ” ) came into force appellants could not rely on the provisions of that LAW for assistance ( at paragraphs CARDINAL of the judgment ) .", "As for the application of the law to PERSON appeal , ORG held , per Sir PERSON :", "“ CARDINAL . If ORG enacted the PERSON Commission’Stubbings v PERSON to hold that the claim is statute barred , and for the reasons we have set out in paras CARDINAL to CARDINAL above the ORG can not come to A ’s assistance because the defendant possessed an accrued right to a limitation defence long before the ORG became law . For these reasons we must dismiss A ’s appeal . ”", "In the event , ORG ordered that PERSON A should pay the applicant ’s costs of the appeal and that she be allowed to appeal to ORG .", "In ORG , PERSON appeal was joined with CARDINAL other appeals which concerned the alleged sexual abuse of children / young persons by members of staff at schools which were managed by the local council . CARDINAL of the appeals , ORG ) and ORG , also involved allegations of sexual abuse by a member of staff in a detention centre operated by ORG . The appeals were heard on CARDINAL , DATE , DATE , and DATE .", "The CARDINAL conjoined appeals all raised the question whether claims for sexual assaults and abuse which took place DATE before the commencement of proceedings were barred by LAW . The appeal in PERSON also raised an issue under section CARDINAL of the DATE Act which deals with the date of knowledge and what knowledge may or may not be attributed to a claimant .", "In a unanimous judgment which was delivered on DATE , their Lordships concluded that LAW of LAW , which traditionally applied to negligence and breach of duty actions , also applied to actions arising out of intentional torts where personal injuries were sustained . Accordingly , all the appeals were allowed .", "Lord PERSON , with whom all the other Law Lords agreed , gave the leading speech , explaining why the ORG should depart from its earlier case - law in PERSON v Webb . After having given a detailed account of the history of LAW , he went on to note that , although ORG had not given rise to too much difficulty at first , the position had radically been changed with ORG decision in PERSON v ORG [ DATE ] CARDINAL AC CARDINAL . In that case , their Lordships had decided that sexual abuse was not necessarily outside the scope of an employment . After that , a considerable number of claims had been brought against the operators of schools , detention centres and the like for sexual abuse by employees . This , in the words of Lord PERSON , “ threw into relief the anomalies created by PERSON ” .", "His Lordship referred in particular to the case of LOC v W ( Child Abuse : Damages ) [ DATE ] CARDINAL FLR CARDINAL , a pre - PERSON case , in which the plaintiff had sued her father and mother for sexual abuse by the father . The action had been commenced DATE after the last act of abuse . As the cause of action against the father was intentional assault , the claim had been struck out . The cause of action against the mother was negligent failure to protect the plaintiff against the father . As this fell CARDINAL of the CARDINAL Act and was subject to a discretionary extension under LAW , which had been granted by the judge and affirmed by ORG , the action against the mother had been allowed to proceed . Lord PERSON recorded the court ’s finding , per Sir PERSON at p.CARDINAL , that the result was “ illogical and surprising ” and deserving of the attention of ORG .", "Indeed , Lord PERSON went on to note that :", "“ CARDINAL . The matter was considered by ORG as part of a comprehensive review of the law of limitation of actions which was presented to ORG in DATE : Limitation of Actions ( DATE ) ( Law Com No CARDINAL ) . The effect of PERSON was described as anomalous , with particular reference to S v W ( Child Abuse : Damages ) [ DATE ] CARDINAL FLR CARDINAL : see para CARDINAL of the ORG . The ORG recommended a uniform regime for personal injuries , whether the claim was made in negligence or trespass to the person : see the summary at para CARDINAL . There has not yet been any implementing legislation , possibly because the ORG ’s recommendations were not confined to the ORG anomaly but proposed a completely new law of limitation of actions . ”", "Lord PERSON concluded :", "“ CARDINAL . Lord PERSON ’s observation [ DATE ] ORG CARDINAL , ORG that unsatisfactory decisions of the highest court can cause uncertainty because lower courts tend to distinguish them on inadequate grounds is also pertinent to the consequences of ORG . Claimants who have suffered sexual abuse but need to seek the discretion of the court under LAW are driven to alleging that the abuse was the result of , or accompanied by , some other breach of duty which can be brought within the language of LAW . Thus , in addition to having to decide whether the claimant was sexually abused , the courts must decide whether this was the result of ‘ systemic negligence’ on the part of the abuser ’s employer or the negligence of some other person for whom the employer is responsible . In the appeals before the ORG , the appellants put forward CARDINAL alternative theories of liability on which they wish to rely if the rule in PERSON is upheld . These are , in increasing degree of artificiality ( CARDINAL ) breach of a direct duty of care owed by the employer to the claimant ; ( CARDINAL ) breach of a duty of care by other employees ; ( CARDINAL ) breach of a duty of care by the abuser himself and ( CARDINAL ) breach of a duty by the abuser to notify the employer of his own wrongful acts . In ORG v ORG [ DATE ] QB CARDINAL , para CARDINAL ORG said that the need to frame a claim in CARDINAL or other of these ways when the real cause of complaint was sexual abuse for which the employer was vicariously liable was causing ‘ arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.’ I therefore think that it would be right to depart from ORG and reaffirm the law laid down by ORG in PERSON v ORG [ DATE ] CARDINAL QB CARDINAL . ”", "Lord PERSON of PERSON - under - Heywood concurred . As regards the exercise of the court ’s discretion under LAW of LAW , he commented that , by no means everyone who brought a late claim for damages for sexual abuse , however genuine , could reasonably expect the court to exercise the section CARDINAL discretion in his favour .", "As regards PERSON appeal , he stated :", "“ CARDINAL . ( ... ) It would not ordinarily be sensible to sue an indigent defendant . How then should the court approach the exercise of its section CARDINAL discretion in a case like A where suddenly , after DATE , the prospective defendant becomes rich . The ORG is not , of course , itself exercising this discretion . I would , however , suggest that it would be most unfortunate if people felt obliged ( often at public expense ) to bring proceedings for sexual abuse against indigent defendants simply with a view to their possible future enforcement . ( Judgments , although interestbearing for DATE , are enforceable without limit of time . ) ”", "ORG judgment effectively meant in the applicant ’s case that the section CARDINAL limitation period of DATE became applicable to the circumstances of his case with the possibility of an extension of that period at the discretion of the court under LAW of LAW . Indeed , their Lordships remitted the case to ORG to consider whether it ought to exercise its discretion under LAW of that LAW . As for the question of costs , their Lordships ordered the parties to lodge written submissions on this issue within DATE .", "In a Judgment Order of DATE , ORG awarded PERSON A her costs both before the ORG and ORG , with the ORG costs to be determined by the judge hearing PERSON application on LAW of LAW .", "On DATE PERSON , sitting in ORG , exercised his discretion in favour of PERSON and allowed her to sue the applicant in damages .", "Among the factors taken into account by the learned judge were the following : ( i ) the nature and seriousness of the underlying tortious wrong ; ( ii ) the fact that one of the consequences of that wrong was the applicant ’s impecuniosity ( because he was unable to earn money by which he could otherwise have met a judgment for damages ) ; ( iii ) the fact that , prior to his lottery win , the applicant was simply not worth pursuing in an action for damages – this being the principal reason for PERSON delay ; and ( iv ) the fact that Mrs A acted promptly following the defendant ’s release from prison and his lottery win .", "NORP In response to the applicant ’s argument that , if he exercised his discretion in favour of PERSON in the present case , there would be a risk that parties in all aspects of civil litigation would seek to get round the applicable limitation periods by relying on the defendant ’s impecuniosity , PERSON added that :", "“ CARDINAL . ... I consider this to be a wholly exceptional case . It will be very rare for a claimant to bring a claim against a defendant for a tortious wrong , in circumstances where that wrong was so serious that it caused the defendant to be sentenced to life imprisonment ( thereby creating the impecuniosity which prevented the claimant from bringing proceedings against him in the first place ) or brought with it in some other way a financial catastrophe for the defendant which meant that he would not be in a position to meet any judgment against him . It will be even rarer for such a defendant , DATE , to buy a lottery ticket , which wins him £ MONEY , or otherwise comes into an unexpected fortune , which makes him suddenly worth pursuing after all . Thus , even if it was appropriate to conclude that section CARDINAL was only applicable in exceptional cases , I am in no doubt that this is indeed such a case . ”", "In the event , the applicant was ordered to pay the costs of all the proceedings before the lower courts in addition to the costs before ORG and ORG . In total , in addition to his own costs of ORG the applicant was ordered to pay ORG in legal costs and ORG in compensation to PERSON", "The background to the adoption of LAW is set out in detail in the ORG ’s judgment in ORG and Others v. GPE , DATE , § § DATE , Reports of Judgments and Decisions DATE .", "Section CARDINAL of the LAW DATE provides as follows :", "“ An action founded on tort shall not be brought after the expiration of DATE from the date on which the cause of action accrued . ”", "Section CARDINAL of the LAW DATE deals with special time limits for actions in respect of personal injuries and , in its relevant parts , reads as follows :", "“ CARDINAL ( CARDINAL ) This section applies to any action for damages for negligence , nuisance or breach of duty ( whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision ) where the damages claimed by the plaintiff for the negligence , nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person . ...", "( CARDINAL ) None of the time limits given in the preceding provisions of this LAW shall apply to an action to which this section applies .", "( CARDINAL ) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection ( CARDINAL ) or ( CARDINAL ) below .", "( CARDINAL ) Except where subsection ( CARDINAL ) below applies , the period applicable is DATE from—", "( a ) the date on which the cause of action accrued ; or", "( b ) the date of knowledge ( if later ) of the person injured ...", "Section CARDINAL of the LAW DATE further provides for discretionary exclusion of the time limit for actions in respect of personal injuries or death in the following terms :", "“ ( CARDINAL ) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—", "( a ) the provisions of LAW or CARDINAL of this Act prejudice the plaintiff or any person whom he represents ; and", "( b ) any decision of the court under this subsection would prejudice the defendant or any person whom he represents ;", "the court may direct that those provisions shall not apply to the action , or shall not apply to any specified cause of action to which the action relates .", "( a ) the length of , and the reasons for , the delay on the part of the plaintiff ;", "( b ) the extent to which , having regard to the delay , the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by LAW or ( as the case may be ) by CARDINAL ;", "( c ) the conduct of the defendant after the cause of action arose , including the extent ( if any ) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff ’s cause of action against the defendant ;", "( d ) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action ;", "( e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant , to which the injury was attributable , might be capable at that time of giving rise to an action for damages ;", "( f ) the steps , if any , taken by the plaintiff to obtain medical , legal or other expert advice and the nature of any such advice he may have received .", "( CARDINAL ) In a case where the person injured died when , because of LAW , he could no longer maintain an action and recover damages in respect of the injury , the court shall have regard in particular to the length of , and the reasons for , the delay on the part of the deceased .", "( CARDINAL ) In a case under subsection ( CARDINAL ) above , or any other case where the time limit , or CARDINAL of the time limits , depends on the date of knowledge of a person other than the plaintiff , subsection ( CARDINAL ) above shall have effect with appropriate modifications , and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit .", "( CARDINAL ) A direction by the court disapplying the provisions of section CARDINAL ) shall operate to disapply the provisions to the same effect in section CARDINAL ) of LAW CARDINAL ... ”", "In its report , LAW ( DATE ) ( Law Com No CARDINAL ) , ORG carried out a comprehensive review of the law of limitation . As regards sexual abuse cases , the Commission identified the following problems :", "“ CARDINAL.CARDINAL Traditionally , the limitation period has started from DATE the cause of action accrued , whether or not the claimant knows of the potential claim . This caused injustice where the injury suffered by the claimant did not become apparent for DATE . Provision has been made for such cases of latent damage in actions for personal injuries , under LAW DATE and in some other cases . However , the provision for latent damage does not extend to most causes of action . Outside the areas of personal injuries and consumer protection , the limitation period will only run from the date the claimant knows the relevant facts if the claim is brought in negligence . Even where the claim is for personal injuries , provision for latent damage does not extend to deliberately caused injuries . Here the limitation period remains DATE , running from the date of accrual of the cause of action . This has led to the anomalous result that a claimant who has been sexually abused by her father may have longer to bring a claim for damages against her mother for negligently failing to prevent the abuse than to bring a claim against her father for actually committing the abuse .", "CARDINAL.CARDINAL It is necessary to balance the interests of the claimant ( who wishes to have as long as possible to bring a claim ) and the defendant ( who must be protected from stale claims ) in setting a limitation period . It will never be possible to achieve complete fairness between the parties ( indeed the imposition of any limitation period could be regarded as doing ‘ rough justice’ to the claimant ) . However the balance struck under the present law does not give sufficient recognition to the interests of the claimant ... ”", "ORG thus recommended the following :", "“ CARDINAL.CARDINAL The core regime will be modified in its application to claims in respect of personal injuries . The court should have a discretion to disapply the primary limitation period , and no long - stop limitation period will apply ...", "All personal injury claims will be subject to this regime , whether the claim concerned is made in negligence or trespass to the person ( including claims in respect of personal injury ) . ”", "In the Practice Statement ( Judicial Precedent ) DATE CARDINAL W.L.R. DATE , Lord PERSON declared :", "“ Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases . It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs , as well as a basis for orderly development of legal rules .", "Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law . They propose , therefore , to modify their present practice and , while treating former decisions of this ORG as normally binding , to depart from a previous decision when it appears right to do so .", "In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts , settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law .", "This announcement is not intended to affect the use of precedent elsewhere than in this ORG . ”", "The relevant rules on costs read as follows :", "“ ( CARDINAL ) The court has discretion as to –", "( a ) whether costs are payable by CARDINAL party to another ;", "( b ) the amount of those costs ; and", "( c ) when they are to be paid .", "( CARDINAL ) If the court decides to make an order about costs –", "( a ) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party ; but", "( b ) the court may make a different order .", "( ... )", "( CARDINAL ) In deciding what order ( if any ) to make about costs , the court must have regard to all the circumstances , including –", "( a ) the conduct of all the parties ;", "( b ) whether a party has succeeded on part of his case , even if he has not been wholly successful ; and", "( c ) any payment into court or admissible offer to settle made by a party which is drawn to the court ’s attention , and which is not an offer to which costs consequences under Part CARDINAL apply .", "( CARDINAL ) The conduct of the parties includes –", "( a ) conduct before , as well as during , the proceedings and in particular the extent to which the parties followed LAW ) or any relevant pre - action protocol ;", "( b ) whether it was reasonable for a party to raise , pursue or contest a particular allegation or issue ;", "( c ) the manner in which a party has pursued or defended his case or a particular allegation or issue ; and", "( d ) whether a claimant who has succeeded in his claim , in whole or in part , exaggerated his claim .", "( CARDINAL ) The orders which the court may make under this rule include an order that a party must pay –", "( a ) a proportion of another party ’s costs ;", "( b ) a stated amount in respect of another party ’s costs ;", "( c ) costs from or until a certain date only ;", "( d ) costs incurred before proceedings have begun ;", "( e ) costs relating to particular steps taken in the proceedings ;", "( f ) costs relating only to a distinct part of the proceedings ; and", "( g ) interest on costs from or until a certain date , including a date before judgment . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and , at the time of lodging his application with the ORG , was serving a sentence of imprisonment in ORG ORG , GPE .", "NORP In DATE , in response to an increase in the availability of heroin in GPE , the police commenced “ FAC ” , to identify and target those responsible . On the basis of intelligence reports the police reached the conclusion that the applicant was the head of a group of NORP drug traffickers operating in the area . Video recordings made of his house and his itemised telephone bill indicated that he was in regular contact with suspected drug dealers from elsewhere in GPE .", "On DATE , in accordance with ORG ( “ the LAW : see paragraphs CARDINAL of the PERSON judgment , cited in paragraph CARDINAL below ) the Chief Constable authorised the use of a covert listening device in the applicant ’s house . On DATE the applicant was arrested for suspected car theft and a warrant was obtained to search his house for documents relating to motor vehicles . When executing the warrant the police covertly installed listening and recording equipment inside his house . Recordings were made between DATE and DATE . The Chief Constable ’s authorisation had been obtained for the entire period , except DATE and DATE , when the authorisation had lapsed and not been renewed , due to an oversight .", "It was the prosecution ’s case at the subsequent trial that the recordings obtained in this way revealed detailed discussions between the applicant and his co - accused demonstrating their involvement in conspiracies to import and distribute Class A drugs , in particular heroin .", "The applicant was arrested , together with a number of alleged associates , and charged with conspiracy to import and supply Class A drugs . He and his co - accused applied to have the prosecution struck out for abuse of process and/or the recordings excluded from evidence . On DATE the trial judge ruled against the defendants , observing as follows :", "“ I respectfully note the conclusion of ORG rights in the case of PERSON v. the GPE , adopted DATE , to the effect that the use of covert listening devices in accordance with the Guidelines is not done in accordance with the law and is thus in breach of LAW , because in GPE there is as yet no legally binding publicly accessible body of law regulating such activity . I bear in mind that the Convention is not yet part of our law , but that where possible domestic law should be interpreted in accordance with Convention principles .", "I take into account that in intruding on the privacy of ORG ’s home the police will have committed civil trespass and possibly criminal damage . I take into account that there may have been conduct outside FAC , in that the authority for the continued use of the listening device may not have been in place DATE and DATE . On the other hand , I bear in mind my finding that the police followed the LAW to the letter in all other respects and did not intend deliberately to circumvent the requirement to obtain the Chief Constable ’s authority . I take into account that the police acted in good faith throughout in pursuit of the public good in the detection and prosecution of very serious crime . Balancing these factors , I ’m satisfied that there is no evidence of abuse of power by the police which could found the basis for a stay of the proceedings as being an abuse of process . ...", "I turn next to consider the court ’s exclusionary power under s. CARDINAL of ORG . ... Being in tape recorded form there ’s unlikely to be dispute about [ the evidence ’s ] authenticity . It is highly relevant and potentially probative of the defendants’ involvement in the conspiracies alleged . It did not result from incitement , entrapment or inducements , or other conduct of that sort . The fact that the defendants may not have said what they did if they PERSON known the police were listening in does not mean that reception of evidence of what they said is unfair . The potential branches of the civil or criminal law and LAW and the possible lack of the Chief Constable ’s authority between certain dates do not affect the quality of the evidence ... ”", "Following this ruling , the applicant absconded . He was convicted in his absence on DATE , and sentenced to CARDINAL years’ imprisonment .", "It appears that the applicant was arrested DATE , at which point he appealed against conviction , arguing that the covertly obtained recordings should not have been used at trial and that he had made the damaging recorded statements only because he had been entrapped into so doing by participating informants . His renewed application was rejected by the full ORG on DATE , on the grounds that the trial judge ’s ruling of DATE was irreproachable and that there was no evidence of entrapment or any other abusive action on the part of the police ." ]

[ "8" ]

[]

[]

[]

[]

[]

[ "The first applicant , Mr PERSON , is a GPE citizen of GPE ethnic origin . He left GPE on DATE and entered GPE clandestinely in DATE , using a false passport . On DATE he submitted to ORG français de protection des réfugiés et apatrides , \" OFPRA \" ) a request for recognition of his refugee status . In accordance with a circular of CARDINAL DATE concerning asylum seekers , he obtained provisional leave to reside in GPE \" with a view to dealings with the OFPRA \" , and this was renewed on several occasions .", "On DATE the director of the OFPRA refused the request , on the grounds that Mr PERSON ’s statements were \" vague in places \" and not \" such as to establish the truth of the facts alleged or prove that his personal fears of persecution were well - founded for the purposes of LAW \" of DATE relating to ORG ( \" LAW \" ) .", "On DATE Mr PERSON appealed against this decision to ORG des recours des réfugiés , \" ORG \" ) , which on DATE dismissed the appeal for the following reasons :", "\" ... By virtue of paragraph A , sub - paragraph CARDINAL , of LAW of DATE and the LAW signed in GPE on DATE , a refugee is considered to be any person who , owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , unwilling to avail himself of the protection of that country ;", "... In order to claim the benefit of the above provisions , Mr GPE , who is of GPE nationality , maintains that because of his NORP origin he defended the cause of his people and was arrested on DATE for distributing leaflets ; that DATE he was searched for CARDINAL times and arrested twice , following attacks on GPE and NORP military camps ; that because he had taken part in the election campaign of a candidate of the EROS movement [ ORG ] , he was arrested on CARDINAL DATE by NORP troops ; that following another attack on CARDINAL members of the ORG [ ORG ] he was under suspicion and decided to leave GPE ; that he fears for his safety and liberty if he has to return to his country ;", "... However , the documents in the case - file do not make it possible to regard the facts alleged as having been proved or the fears expressed as being well - founded . The appeal can thus not be upheld . \"", "On DATE the prefecture of FAC directed the first applicant to leave NORP territory within DATE , and informed him that if he failed to comply he would be liable to expulsion ( reconduite à la frontière ) or a prison sentence and fine .", "Mr GPE immediately applied to ORG .", "He has been unlawfully resident in GPE since DATE . He claimed that if returned to GPE he would run the risk of treatment which was not compatible with LAW ) of the LAW . In support of this claim he produced a number of certificates , which are in the ORG ’s file of the case .", "The second applicant , Mr Nagalingam Pusparajah , who is also a GPE of GPE origin , entered GPE clandestinely in DATE . On DATE he submitted a request for recognition of refugee status to the OFPRA . His request was rejected on CARDINAL DATE for the following reasons :", "\" Mr Pusparajah has not adduced even prima facie evidence that his personal case is one of those covered by LAW , paragraph A , sub - paragraph CARDINAL , of LAW .", "The applicant maintains that he was a leading member of the NORP movement ; that during a search for him carried out by the NORP army his father was killed in his place ; and that he was eventually found and arrested on DATE when on his way to visit his sick mother . On being released DATE , he decided to leave the country . However , his declarations do not provide proof of the facts alleged . \"", "He appealed to ORG on DATE . His appeal was dismissed on DATE , on the grounds that :", "\" ... ORG , who is a GPE national of GPE origin , maintains that his family is being persecuted in his country and that he himself , a militant member of the ORG , saw his home bombed in DATE and searched in DATE ; and that he can not return without danger to his country , where he was imprisoned for DATE in DATE , on account of his militant activities ;", "... However , neither the documents in the case - file nor the statements made at the public hearing before the ORG make it possible to regard the facts alleged as established or the fears expressed as well - founded ; and , in particular , the documents produced and submitted such as a medical certificate issued in GPE on DATE and the statement by a priest dated CARDINAL DATE are not sufficient in this respect ... \"", "In a letter of CARDINAL DATE to the director of the OFPRA the second applicant requested that his case be re- examined . He stated that he had arrived in GPE in DATE , that his younger brother had lost his life on CARDINAL DATE in fighting between the ORG and the NORP army , and that his mother had been seriously injured .", "On DATE , the GPE Commissioner of Police ( préfet de police ) directed him to leave NORP territory before DATE , failing which an order for his expulsion could be issued .", "Mr Pusparajah did not comply .", "His case was re - examined , however , in the context of an application for exceptional leave to remain submitted in DATE . On DATE the Commissioner of Police dismissed that application on the grounds that Mr Pusparajah ’s lawful stay had been of very short duration and that he had not shown that he had had stable employment since entering GPE or that he had sufficient family ties . He again directed him to leave NORP territory before DATE , on pain of the penalties provided for in section CARDINAL of Order no . CARDINAL of DATE as amended ( see paragraph CARDINAL below ) .", "Mr Pusparajah claimed that if returned to GPE he would be exposed to treatment which was not compatible with LAW ) of the LAW . In support of this claim he produced a number of certificates , which are in the ORG ’s file of the case .", "In GPE , recognition of refugee status as defined by LAW and attribution of such status are the exclusive responsibility of the ORG and ORG , which were set up by PERSON no . CARDINAL of DATE .", "According to a circular from the Prime Minister , dated CARDINAL DATE and relating to asylum seekers , the provisional admission to GPE of aliens who are seeking asylum requires the issue of CARDINAL documents in turn : a provisional residence authorisation \" with a view to dealings with the OFPRA . \" , valid for DATE , and a receipt bearing the words \" Has requested asylum \" , issued for DATE and renewable , and equivalent to a provisional residence and work permit .", "If the OFPRA refuses to grant refugee status , it notifies the person concerned of its decision and sends a copy to the relevant prefecture . The decision is regarded as definitive if the alien does not appeal to ORG within DATE from DATE when he actually received notification ( ministerial circular of CARDINAL DATE ) .", "ORG is presided over by a judge from the ORG d’État and consists of a representative of the ORG ’s board of management and the NORP delegate of ORG High Commissioner for Refugees ( \" the ORG \" ) .", "A refusal by the ORG can be appealed against to the ORG d’État . The appeal has no suspensive effect , in that it does not provide grounds for extension of the provisional residence documents ( PERSON judgment of CARDINAL DATE , unreported ) . Requests to the OFPRA to re - examine the case and appeals against the rejection of such requests are likewise no grounds for the issue or extension of the receipt marked \" Has requested asylum \" ( circular of CARDINAL DATE ) .", "Where a request for recognition of refugee status has been definitively rejected , the circular of CARDINAL DATE requires prefects of departments and the GPE Commissioner of Police , when the person concerned attends at the prefecture , to communicate to him a direction to leave NORP territory within DATE , on pain of court proceedings . After DATE he must report to the proper authorities and inform them of the arrangements he has made for organising his departure ; the time - limit can be extended if the alien puts forward valid reasons and shows that he has made real preparations for departure , in particular a definite date for departure . On expiry of the last provisional residence authorisation , the relevant authorities must refer to the public prosecutor the offence defined in section QUANTITY of the Order of DATE as amended ( see paragraph CARDINAL below ) .", "If , however , it appears that there are particular circumstances which would expose the person concerned to serious risks if he returned to his country of origin , the authorities must immediately refer the case for a decision to the Minister of the ORG , by sending him a telegram giving precise details of the person concerned and the facts alleged .", "In this respect a circular of CARDINAL DATE of the Minister of the ORG restates the obligation to refer the matter to the central authorities in cases where there is an objection to repatriation based on the situation in the country of origin and the alien fears that he will be exposed there to serious risks to his safety or liberty . The decision is taken as soon as information has been received from the NORP delegation of the ORG . The person concerned is then granted a provisional residence authorisation , valid for DATE and renewable , during which period he must be requested to find a third country which might be prepared to receive him . If there is a risk of flight , the authorities can ask the Minister of the ORG to issue a compulsory residence order ( LAW of the Order of DATE ) .", "A direction to leave NORP territory is not served on the alien if he submits or manifests the intention of submitting a request for exceptional admission on the grounds of risks to his safety in the event of his return to his country of origin . In such cases the prefect takes the decision . If no such request is made , the alien is informed of the possibility of submitting written observations on his possible expulsion ( in accordance with section CARDINAL of the Decree of DATE on relations between the authorities and persons dealing with them ) , and of the possibility of appealing for the case to be reconsidered , appealing to a higher authority or appealing to the court within DATE from service of the direction . However , such an appeal does not have suspensive effect and , on expiry of the period granted to him to prepare his departure , the person concerned becomes liable to an administrative measure of expulsion or a fine and imprisonment for unlawful residence ( sections CARDINAL of the Order of DATE and circular of CARDINAL DATE of the Minister of the ORG ) .", "The Order of DATE relating to the conditions of entry and residence of aliens in GPE , as amended by PERSON no . CARDINAL - CARDINAL of CARDINAL September CARDINAL , Law no . CARDINAL - CARDINAL of DATE and PERSON no . CARDINAL of DATE , provides that :", "\" An alien who enters or resides in GPE without complying with the provisions of sections CARDINAL and CARDINAL shall be punished by imprisonment for DATE but not DATE and a fine of CARDINAL but not MONEY .", "The court may also prohibit the person convicted from entering or residing on NORP territory for a period not exceeding three years . The prohibition automatically entails the expulsion of the convicted person , where appropriate after his prison sentence has been served . \"", "\" The ORG ’s representative in a department , or in GPE the Commissioner of Police , may issue a reasoned decision ordering an alien ’s expulsion in the following cases :", "If the alien can not prove that he entered NORP territory lawfully , unless his position has been regularised subsequent to his entry ;", "If the alien has remained on NORP territory on expiry of a period of DATE from his entry into GPE without holding a lawfully issued first residence permit ;", "If an alien who has been refused issue or renewal of a temporary residence permit has remained on NORP territory for DATE from the date of notification of the refusal ;", "If the alien has been convicted by a final judgment of counterfeiting , forgery , residence under an assumed name or non - possession of residence permit . Once the alien has been served with the expulsion order , he shall immediately be permitted to inform a lawyer , his consulate or a person of his choice . \"", "\" An order for the deportation of an alien shall be automatically enforceable by the authorities . The same applies to an expulsion order which has not been challenged before the president of the administrative court or his deputy within the period laid down in LAW bis of the present Order or which has not been set aside at first instance or on appeal under the conditions laid down in that section . \"", "\" An alien subject to a deportation order or who is to be expelled , who shows that he is unable to leave NORP territory by proving that he can neither return to his country of origin nor enter any other country , may by derogation from section CARDINAL bis be compelled by an order of the Minister of the Interior to reside in a specified place where he must report periodically to the police or gendarmerie . \"", "\" An alien who is to be expelled and is unable to leave NORP territory immediately may be detained , if this is absolutely necessary , in LOC other than penal institutions by a reasoned written decision of a prefect for the time strictly necessary to arrange his departure .", "The public prosecutor shall be informed of this immediately .", "The alien shall immediately be informed of his rights through an interpreter if he does not understand NORP .", "On expiry of a period of TIME from the detention decision , the case shall be referred to the president of the tribunal de grande instance or a judge designated by him , who shall then give a ruling by means of an order , after hearing the person concerned in the presence of his legal representative , if any , or after having duly informed the said legal representative , on CARDINAL or more of the surveillance and supervision measures necessary to ensure his departure listed below :", "Surrender to the police or gendarmerie of all identity documents , in particular his passport , in exchange for a receipt serving as proof of identity ;", "A compulsory residence order ;", "In exceptional cases , extension of detention in the LOC mentioned in the first sub - paragraph of this section .", "The order extending detention shall run from expiry of the period of TIME laid down in this sub - paragraph .", "Application of these measures shall end not later than the expiry of a period of DATE from the issue of the order mentioned above . \"", "These various provisions have not been applied , or at least have not yet been applied , in the cases of Mr GPE and Mr Pusparajah .", "The circular of the Minister of the ORG dated DATE requires the police to serve the prefectoral expulsion order on the person concerned .", "An order which it has not been possible to enforce is recorded in the list of wanted persons .", "Neither the model forms for service of such orders , annexed to the various circulars , nor the circulars themselves require the alien to be notified of the country of destination when he is served with the expulsion order .", "Section CARDINAL bis of the Order of DATE ( as amended by PERSON no . CARDINAL of DATE ) provides that :", "\" An alien who is the subject of a prefectoral expulsion order may within TIME from service thereof apply to the president of the administrative court for the order to be set aside .", "The president or his deputy shall take a decision within a period of TIME from such application . He may proceed to the seat of the ordinary court nearest to the place of detention of an alien who is being detained pursuant to section QUANTITY bis of this Order .", "I. The alien may ask the president of the court or his deputy for the assistance of an interpreter and to be shown the case - file containing the documents on the basis of which the challenged decision has been taken .", "The hearing shall be in public . It shall take place without submissions from the Government Commissioner ( commissaire du Gouvernement ) and in the presence of the alien , unless the latter has been duly summoned and fails to attend . The alien shall be assisted by his legal representative if he has one . He may ask the president or his deputy for counsel to be appointed for him .", "II . The provisions of LAW bis of this Order may be applied as soon as the expulsion order has been issued .", "That order may not be enforced until the expiry of a period of TIME from its service or , if the case has been referred to the president of the administrative court or his deputy , until he has taken his decision .", "III . If the expulsion order is set aside , the surveillance measures provided for in LAW bis shall be discontinued immediately and the alien shall be issued with a provisional residence authorisation until the prefect has taken a fresh decision on the matter . \"", "Proceedings in respect of prefectoral expulsion orders are governed by Decree no . CARDINAL of DATE inserting additional provisions after PERSON , and providing inter alia :", "\" The following provisions only shall apply to the submission , investigation and adjudication of applications for the setting aside of prefectoral orders for the expulsion of foreign nationals . \"", "\" Decisions on applications brought against prefectoral orders for the expulsion of aliens shall be taken by the president of the administrative court or a judge appointed by him , without submissions from the Government Commissioner . \"", "\" The administrative court with territorial jurisdiction shall be the court in whose district is the office of the prefect who has issued the expulsion order . \"", "\" The application must include the name and address of the applicant and a statement of the facts and the grounds on which setting aside is requested . It shall be presented in a single copy . \"", "\" The applications mentioned in LAW may be submitted without representation by counsel .", "Once his application has been lodged , the alien may request counsel to be appointed for him ; the president of the administrative court shall immediately give notice thereof to the president of the bar association for the tribunal de grande instance within whose district the hearing is to be held . The president of the bar association shall make the appointment without delay . \"", "\" The application must be registered with the registry of the administrative court within TIME from service of the prefectoral expulsion order .", "However , if at the time of service of the order the alien is being detained by the administrative authorities , his application may be validly lodged , within the same TIME period , either with the said administrative authorities or with the registry of the court before which he appears for the extension of his administrative detention . \"", "\" The period of TIME within which the president of the administrative court or his deputy must take a decision shall run from the time when the application is registered with the registry of the court . \"", "\" If an alien who does not speak NORP sufficiently well so requests , the president shall appoint an interpreter ... . Such a request may be made as soon as the application to the court is lodged . \"", "\" The parties may submit pleadings or written observations up to the moment when the case is called . \"", "\" After the report presented by the president of the administrative court or his deputy , the parties may submit oral observations in person or through counsel . They may also produce documents in support of their pleadings . If these documents provide new evidence , the judge shall ask the other party to examine them and submit his observations thereon to him at the hearing . \"", "\" The decision shall be pronounced at the hearing . \"", "\" The operative provisions of the decision , together with the enforcement formula provided for in Article ORG , shall be served there and then on the parties present at the hearing , who shall immediately acknowledge receipt thereof .", "If it has not been served there and then , the decision shall be served without delay and by any means on the parties , who shall acknowledge receipt thereof . Service shall include notification of the possibility of appealing and the time - limit within which an appeal can be brought . \"", "\" The prefect who signed the challenged order and the alien may appeal against the decision to the president of ORG of the ORG d’État or a judge of the PERSON d’État appointed by him . \"", "\" The period for appealing shall be DATE . It shall run against any party to the proceedings from the date on which service was made on that party under the conditions laid down in FAC , second sub- paragraph . \"", "It should be noted that an appeal to the ORG d’État has no suspensive effect , but the appellant may request the president of ORG to order a stay of execution of the order ( ORG d’État , ORG judgment of CARDINAL DATE , PERSON DATE , p. CARDINAL ) . Such a request becomes devoid of purpose , however , if the order has been enforced before the ORG d’État gives judgment ( PERSON d’État , PERSON judgment of CARDINAL DATE , PERSON DATE , p. CARDINAL ) .", "The ministerial circulars of DATE and DATE state that service of a prefectoral expulsion order shall mention the possibility of bringing the appeal provided for in LAW bis of the Order of DATE and the rights which appellants have in the context of such proceedings . Forms of service have been drawn up in several languages , in order to put aliens in a position to exercise their rights effectively .", "Finally , in its GPE judgment of CARDINAL DATE ( PERSON DATE , p. CARDINAL ) , the ORG d’État distinguished between the decision to remove an alien from NORP territory and the decision as to his country of destination :", "\" ... The argument based on the fact that Mr GPE would be seriously at risk if he had to return to GPE can not be validly relied on in support of an appeal against the impugned [ expulsion ] order which does not specify the country to which the appellant is to be expelled ;", "...", "... In a separate decision , served on Mr GPE at the same time as that ordering his detention , the Commissioner of Police decided that the country to which he was to be expelled would be GPE ; ... having regard to the arguments in his application , the appellant must be regarded as having also made submissions for the setting aside of that decision , which was separate from the expulsion order ; ... the judgment appealed against must be quashed for failure to reply to those submissions , and this aspect of the case must be examined ;", "... Although Mr GPE , in asking for that decision to be set aside , maintains without giving any further details that his return to GPE would place him at serious risk because of his religious beliefs , he has not shown any particular circumstance such as to constitute a legal impediment to his expulsion to his country of origin ; ... he is therefore unable to maintain that the decision contained in the record of service of DATE was ultra vires and invalid ; \"", "A ministerial circular of CARDINAL DATE , specifically intended to take into account the recent case - law of the ORG d’État and ORG and to ensure compliance with Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL) of the Convention , strengthened the system for the protection of aliens who were the subject of measures of removal from NORP territory . Its aim was to improve both the supply of information to them before such measures were taken and also the relevant administrative procedures .", "A direction to leave NORP territory , served on an alien after the right of residence has been refused or after his request for granting of refugee status has been definitively rejected , must now inform him that he may leave voluntarily for the country of his choice ; if he does not do so , the expulsion measure will normally be enforced by sending him to the country of which he is a national or which has issued him with a currently valid travel document , or to any other country to which he proves that he may lawfully be admitted . In addition , prefects must notify the alien that he has the possibility of submitting , within DATE from service , written observations with reference to the risks he would be exposed to if he were to return to his country of origin .", "The circular states that the choice of country of destination is a decision which is distinct from the expulsion , and must in no way affect the lawfulness of the expulsion order . It provides that a note of it must be indicated on the record of the order . Such a decision can be the subject of an appeal , made parallel to the application for the order to be set aside ; it will be examined under the same conditions and within the same time - limits , and with the benefit of the safeguards which follow from the suspensive nature of the proceedings .", "If the administrative court finds that the order is lawful but annuls the decision as to the country of destination , the prefect must immediately refer the matter to the Minister of the ORG , so that the minister can make a compulsory residence order against the person concerned for DATE , generally not renewable , under LAW of the Order of DATE ( see paragraph CARDINAL above ) , in order to give him an opportunity of finding a third country which will admit him .", "A circular of the Minister of ORG and the Minister of the ORG dated DATE lays down the conditions for examination of applications for exceptional leave to remain submitted by unsuccessful asylum seekers , including NORP of GPE origin . It instructs prefects to invite the alien to submit to them in writing , in LANGUAGE , the arguments put forward by him alleging that his safety or liberty would be at risk if he returned to his country of origin . These arguments must be precise , detailed and different from those put forward before the OFPRA or ORG , so as to allow the OFPRA to re - examine the case . Finally , if the alien shows that in the event of return he would risk being subjected to punishment or treatment contrary to LAW , or if the arguments adduced appear to be serious and to deserve detailed consideration by the central authorities , prefects are to send the Minister of the Interior a highly detailed report on the person in question and the arguments relied on .", "The Minister of the ORG then examines the case in conjunction with the Minister of ORG ( who may in some cases consult the NORP diplomatic representatives in the country of origin ) and , if appropriate , the ORG delegate for GPE . As stated in the circular of CARDINAL DATE , the reason militating against the return to his country of origin of an asylum seeker whose request has been dismissed may be connected with the general situation in that country - armed conflict , civil war , or state of emergency , bringing about the suspension of air links , etc .", "In such circumstances , measures of removal to the country in question may be provisionally suspended .", "According to information provided by the ORG , the ORG examines the cases of asylum seekers from GPE on the basis of a number of criteria :", "- geographical origin of the asylum seeker , which makes it possible to determine the seriousness of the alleged fears , according to the movement over time of the scene of fighting ;", "- political commitment of the person concerned , placing him in opposition to those currently in power ;", "- membership of certain categories , making the authorities suspicious of the asylum seeker .", "In addition , the OFPRA works together with ORG and ORG in order to assess whether persons in fear of persecution because of rivalries between NORP separatist groups run a real risk from the point of view of LAW ) of the LAW . This assessment takes place on the basis of information received not only from ORG representatives ( ORG in GPE ) but also from outside sources ( publications , the media , expert reports , analyses , etc . ) . The ORG is also in contact with non - governmental organisations ( Médecins sans frontières ) who are present on the ground and in appropriate cases supply invaluable details and testimony on the development of the local situation . To this may be added the experience built up by the NORP authorities responsible for processing requests for asylum .", "According to the ORG , the ORG and ORG took CARDINAL final decisions in DATE on requests for asylum by GPE nationals , CARDINAL of whom were granted refugee status . The applicants disputed this before the Commission .", "The Government also pointed out that an expulsion order could not be made against such an asylum seeker unless the central authorities had first been consulted .", "In DATE CARDINAL of the CARDINAL NORP whose requests for asylum had been unsuccessful had such orders issued against them . Moreover , PERCENT of persons whose situation had been regularised within DATE to DATE in the GPE region were NORP .", "The applicants for their part produced a copy of a decision of ORG of DATE , dismissing an appeal which had been brought both against an expulsion order and against the prefect ’s decision to return the appellant to his country of origin . The court found that :", "\" ... neither the content of the case - file nor the evidence adduced at the hearing is such as to show that the decision to repatriate Mr PERSON to GPE , his country of origin , would contravene the provisions of LAW ) of ORG CARDINAL and CARDINAL of LAW of DATE ; further , the argument based on a violation of LAW is inadmissible , for want of sufficient information to assess the scope of that argument . \"" ]

[]

[]

[]

[]

[]

[]

[ "The applicant company , “ Wirtschafts - Trend ” ORG , is the owner and publisher of the DATE news magazine ORG with its seat in GPE . It is represented before the ORG by ORG , lawyers practising in NORP / GPE .", "The facts of the case , as submitted by the applicant company , may be summarised as follows .", "On DATE the news magazine ORG published an article with excerpts of TIME of preliminary investigations in criminal proceedings against CARDINAL GPE police officers , who had , on DATE , accompanied a deportation flight on which the deportee had died under unclear circumstances . The incident , which received high press coverage in GPE , evoked a public debate on deportation practices , in particular as regards the use of handcuffs and adhesive tapes for breaking the resistance of the deportee . Under the heading “ Lethal trick ” ( “ PERSON Trick ” ) the article at issue dealt with extracts of conflicting statements the NORP police officers had made on the incident and their conduct during the deportation flight , in particular at FAC in GPE , ORG ) and ORG ( PERSON ) . The article finished with the quotation of CARDINAL of the officers who stated that “ we were surprised and assumed at first that it was a trick ” that , after his handcuffs had been opened and the adhesive tapes , which had been place over his mouth and nose , had been taken away upon the landing , the deportee did not react to their request to follow them . “ TIME a NORP doctor confirmed the death of the NORP deportee . ” While throughout the article the police officers concerned were referred to with their first name and the initial of their last name , PERSON job title and his full last name were disclosed in an eye - catching position directly above the headline .", "On DATE Mr PERSON filed a compensation claim under section CARDINAL § CARDINAL of the NORP LAW ( Mediengesetz ) against the applicant company .", "On DATE the ORG ( PERSON ) dismissed the claim on the ground that PERSON had failed to substantiate which legitimate interests had been violated in his case .", "On DATE ORG ( Oberlandesgericht ) , granting PERSON appeal , quashed the lower court ’s decision and referred the case back to it to establish whether or not any legitimate interests of PERSON had been injured through the disclosure of his identity .", "On DATE ORG , after having held a hearing , ordered the applicant company to pay ORG CARDINAL ( ORG CARDINAL,CARDINAL ) in compensation to Mr PERSON The court noted that at the time of the publication of the article , criminal investigation proceedings and disciplinary proceedings were pending against PERSON and that he was suspended from office . Since the disclosure of PERSON K. ’s full name , he suffered social exclusion in his village and was exposed to debates with relatives and within his circle of acquaintances concerning the incident . As a consequence of the article , his quality of life had changed to the detriment . Therefore , the disclosure of Mr K. ’s full name violated his legitimate private interests , which prevailed over the public interest in the publication of such details , pursuant to section ORG § CARDINAL of LAW .", "In its appeal of CARDINAL DATE the applicant company complained that ORG balancing of interests was not in line with this ORG ’s case law under LAW , as there was no “ pressing social need ” to impose a fine .", "On DATE ORG , after having held a hearing , dismissed the appeal and confirmed the lower court ’s judgment . It noted that topics such as performance of police officers , treatment of asylum seekers and potential abuse of the exercise of authority are of predominant public interest . However , modalities of deportation practices , as reported in the article , could also be criticised without disclosing the identity of the involved police officer . The public interest in the disclosure of the identity of the person concerned could be outweighed by that person ’s legitimate interests . Moreover , in the light of the early stage of the criminal proceedings against Mr PERSON , the lower court had correctly given priority to his legitimate interests .", "Section CARDINAL § CARDINAL of LAW 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 CARDINAL ; additionally , section CARDINAL ( 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 or may substantially prejudice the victim ’s advancement . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE . He is currently serving a sentence of life imprisonment at FAC .", "NORP On DATE the applicant was found guilty by ORG on CARDINAL counts of premeditated murder committed on DATE , under , inter alia , section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ( PERSON . CARDINAL ) . On DATE ORG sentenced him to mandatory life imprisonment in respect of each count . The applicant had planted an explosive device under a car and detonated it , causing the death of PERSON and his CARDINAL children , aged DATE . The applicant had been promised the sum of QUANTITY by someone who he has not identified for the murder of PERSON .", "In its judgment passing sentence on the applicant , ORG observed that the prosecution had invited the court to examine the meaning of the term “ life imprisonment ” in LAW and , in particular , to clarify whether it entailed imprisonment of the convicted person for the rest of his life or just for DATE as provided by ORG of DATE and ORG of DATE ( hereinafter “ the Regulations ” ) , adopted under section CARDINAL of the Prison Discipline Law ( PERSON . CARDINAL ) . If the court found that the latter was applicable , then the issue of whether the sentences should be imposed consecutively or concurrently would arise and the prosecution would propose consecutive sentences .", "ORG relied primarily on the findings of ORG in DATE in the case of GPE v. PERSON , alias PERSON ( judgment of CARDINAL DATE , case no . ORG ) and accordingly stated that it was not competent to examine the validity of the ORG or take into account any possible repercussions they could have on the sentence . ORG held that the term “ life imprisonment ” used in LAW meant imprisonment for the remainder of the life of the convicted person . In view of this , the court did not consider it necessary to examine whether the sentences it imposed would run concurrently or consecutively .", "NORP In particular , in its judgment ORG stated the following :", "“ The PERSON on the basis of which the accused has been found guilty on CARDINAL counts of premeditated murder , provides that :", "‘ Whosoever shall be convicted of premeditated murder shall be liable to imprisonment for life’ .", "It follows , therefore , that for the offence in question life imprisonment is imposed by the court as a mandatory sentence .", "PERSON , on behalf of the Prosecution , has invited the court to examine the meaning of life imprisonment and decide whether it means imprisonment of the convicted person for the rest of his life or whether it means , as provided by ORG of DATE and ORG of DATE ( hereinafter “ the Regulations ” ) as provided by LAW of DATE and ORG of DATE ( hereinafter “ the Regulations ” ) , adopted under section CARDINAL of the Prison Discipline Law ( PERSON . CARDINAL ) , imprisonment for DATE . PERSON has suggested that in the event that the court concludes that life imprisonment is interpreted as being for DATE , an interpretation which , if we understood him correctly , he claimed as the correct one , then the issue as to whether the sentences should be imposed consecutively or concurrently would arise . It was , finally , his suggestion , which was in fact the purpose for which he referred to this matter , that , if this was the outcome , it would be correct in the present case , taking into account the special circumstances of the commission of the offences , that the sentences should be served consecutively .", "The same issue , in substance , was put before ORG in case no . ORG between GPE v. PERSON , alias Yiouroukkis . In that case ORG , in its detailed judgment , in which reference is made to the general principles governing the issue and also to the jurisprudence , concluded that the meaning of life imprisonment lies in the clear meaning imparted by the words , and that ORG was not competent to examine the validity of any regulations or to take into account any possible repercussions they could have on the sentence . We completely agree with this judgment to which we refer . Concerning the validity of the ORG , the Attorney - General of the ORG could probably have looked for other mechanisms for deciding the matter at the time when the competent authorities attempted to implement the specific regulation . We do not make mention here of the constitutional right of the President to grant pardon . With regard to the court ’s observation that the repercussions of such regulations , if it is assumed of course that they are valid , are not taken into account , we refer in addition to the decision in PERSON . App . NORP p. CARDINAL , PERSON CARDINAL Cr . App . NORP p. CARDINAL and NORP v. PERSON ( DATE ) Crim . ORG CARDINAL .", "We consider that imprisonment for life means imprisonment for the remainder of the convicted person ’s life . It is therefore pointless to consider whether the sentences will run concurrently or whether they will be served consecutively . ”", "When the applicant was admitted to prison to serve his sentence , he was given written notice by the prison authorities that the date set for his release was DATE . In particular , he was given an CARDINAL form titled “ Personal File of Convict ” , “ I.D. no . CARDINAL ” . On the form , under the heading “ Sentence ” , it was marked “ Life ” and then “ DATE ” ; under the heading “ Period ” it was marked “ From CARDINAL DATE to DATE ” and under the heading “ Expiry ” it was noted “ Ordinary Remission DATE ” . The applicant ’s release was conditional on his good conduct and industry during detention . Following the commission of a disciplinary offence on DATE , his release was postponed to DATE .", "The applicant appealed against his conviction .", "On DATE ORG dismissed the appeal upholding his conviction .", "On DATE in the case of PERSON v. GPE ( judgment of DATE , ( DATE ) CARDINAL A.A.D. CARDINAL ) , ORG , in the context of a habeas corpus application lodged by a life prisoner who was not released on the date given by the prison authorities , declared the Regulations unconstitutional and ultra vires ( see paragraphs CARDINAL below ) .", "On DATE the Prison Law of DATE ( Law no . CARDINAL ) was enacted , repealing and replacing LAW .", "By a letter of DATE , the applicant applied , via ORG , to the President of the Republic at the relevant time for pardon or the suspension of the remainder of his sentence in order to help care for his wife who was suffering from leukaemia .", "By a letter of DATE , the Attorney - General at the material time refused his request . In particular he informed the applicant that , following an examination of his application , he was of the opinion that a recommendation to the President to suspend or commute his sentence under LAW was not justified .", "The applicant was not released on DATE .", "On DATE the applicant submitted a habeas corpus application to ORG ( first - instance jurisdiction ) challenging the lawfulness of his detention . In this context he relied upon LAW . ORG , after considering the above - mentioned provisions , dismissed the application on DATE .", "In his judgment PERSON stated , inter alia , the following :", "“ ... What is of importance in the present case is the principle set out in the case of PERSON and not the differences in the details of the facts . The principle then that has been laid down in the case of PERSON is that LAW applies only to the sentence that is imposed and not to the manner of serving the sentence . LAW CARDINAL does not prohibit a retrospective change in the law or in practice concerning release or conditional release from prison of a prisoner .", "I am therefore of the view that the principle set out in GPE can be applied in the present case . Everything that the learned counsel of the applicant has pleaded has to do with the practice of release from prison . In the instant case ORG imposed a sentence of life imprisonment on the applicant and explained to him at the same time that life imprisonment meant imprisonment for the remainder of his life . What the prison authorities then did , with the CARDINAL form , constitutes an action concerning the execution of the sentence . After the case of LAW on the basis of which the prison authorities gave the applicant the CARDINAL form , have ceased to apply , with the result that the sentence of life imprisonment imposed on the applicant by ORG is applicable . What happened was a change in the legal situation concerning the time of the applicant ’s release . As in the PERSON case , LAW is not applicable .", "...", "I endorse the principle set out in GPE . I consider that the applicant can not derive a right to judicial review on the basis of LAW because of the alleged change in the date of his release from prison which does not change the legal basis for his detention . It should be emphasised that his detention is founded on the sentence of life imprisonment imposed on him by ORG and this had been explained to him as ‘ imprisonment for the remainder of his life’ . It follows that the relevant suggestion by PERSON does not stand and is dismissed .", "On this occasion , I should add that the decision of the Commission on the issue of interpretation of LAW is in line with the jurisprudence of ORG ( see PERSON , Ooms and PERSON v. GPE ( ‘ LOC cases ) DATE , Series A no . CARDINAL ) ...", "The fact that PERSON is a decision of the ORG does not render it less persuasive . It constitutes a decision of a specialised organ with vast experience in interpreting the LAW . It therefore constitutes an authority of great persuasiveness . I am satisfied about the correctness of the ORG ’s decision in GPE , which I have endorsed .", "It was further the suggestion of Mr PERSON that ‘ this kind of sentence imposed on the applicant without the possibility of examination by ORG does not conform with LAW .", "...", "I endorse the above approach [ in GPE ] . Its essence is that the change in release policy does not constitute a violation of LAW . The existence or not of ORG does not form part of the ratio of the decision . This answers the suggestion of Mr PERSON concerning the absence of ORG in GPE . Consequently , his suggestion based on LAW does not stand and is dismissed .", "...", "Finally , I must note that the applicant has sought his release from prison through an order of habeas corpus . As stated , however , in the case of PERSON ( Civil Appeal no . DATE , DATE ) , adopting the relevant position of LANGUAGE jurisprudence ( see GPE ’s ORG , CARDINALth edition , Volume CARDINAL , § § DATE and CARDINAL ) :", "‘ In general the writ of habeas corpus will not be granted to persons convicted or in execution under legal process , including persons in execution of a legal sentence after conviction on indictment . The writ of habeas corpus will not be granted where the effect of it would be to review the judgment of CARDINAL of the superior courts which might have been reviewed on appeal or to question the decision of an inferior court or tribunal on a matter within its jurisdiction ; or where it would falsify the record of a court which shows jurisdiction on the face of it.’", "Consequently , the granting of a habeas corpus order in the present case would have been tantamount to reviewing the sentence that had been imposed by ORG , whereas this could have been done in the context of an appeal . ”", "On DATE the applicant lodged an appeal with ORG ( appeal jurisdiction ) .", "In his grounds of appeal , the applicant challenged the interpretation of the term “ life imprisonment ” made by ORG when sentencing him in DATE in view of the prison regulations applicable at the time and the notice given to the applicant by the prison authorities upon his admission to prison . He argued that the fact that he had not challenged his sentence following conviction could not be interpreted as an acceptance of ORG interpretation of the term “ life imprisonment . ” He relied upon , inter alia , LAW and DATE of the LAW in relation to the lawfulness of his continuing detention .", "As regards LAW , the applicant claimed that the conduct of the authorities had been contrary to this provision . In particular , ground CARDINAL of his appeal read as follows :", "“ The existence on the date on which the sentence was imposed on the convicted person of the ORG that defined a sentence of life imprisonment as being DATE , the issuing of the FCARDINAL notice , the admission that the applicant would have been released on DATE if the aforementioned ORG had been applicable and the sudden annulment of all the above constituted inhuman and degrading treatment .", "The Republic can not behave in this way towards the applicant ’s life without any consequences for anyone apart from the applicant , who had to live with this uncertainty .", "The aforementioned change of DATE imprisonment to imprisonment for life following an error by ORG and/or the Attorney - General of the Republic and/or the President of the Republic constitutes , without any fault on the applicant ’s part , inhuman and degrading treatment which , on account of its uncertainty , violates LAW .", "The aforementioned change from the imposed DATE imprisonment to a death sentence , which will take effect on an unknown date given the fact that there is no possibility of re - examining the matter , constitutes inhuman treatment contrary to LAW . Indeed , this becomes even more obvious , when one considers that the death penalty has already been abolished in GPE . ”", "Concerning LAW , the applicant in ground CARDINAL of his appeal noted that he was not requesting judicial review of his sentence on account of a change in policy concerning DATE of his release but the examination of the lawfulness of his detention , given that even the prison authorities had admitted that he should have been released on DATE . In this connection , he complained of the lack of a mechanism to examine the lawfulness of his detention .", "When challenging ORG ( first instance ) interpretation of LAW , the applicant distinguished his case from that of NORP v. GPE ( no . CARDINAL/CARDINAL , Commission decision of DATE , ORG and Reports CARDINAL , p. CARDINAL ) , in that GPE related to the manner of application of the sentence in view of the change in the policy of the parole board whereas in his case the issue raised was that of a retrospective change of the law due to unconstitutionality and the increase of his sentence from DATE to life . In this connection , he emphasised that in GPE there was no parole board unlike in GPE .", "On DATE ORG dismissed the appeal . It stated , inter alia :", "“ The appellant is essentially raising CARDINAL issue . And his learned counsel has acknowledged that judgment as to this [ issue ] will determine the conclusion ... We summarise the appellant ’s positions as set out in the grounds of appeal as explained .", "He does not invoke the ORG as an autonomous ground for his release , especially since ... they are not applicable any more . Furthermore , he does not suggest or attempt a review of ORG judgment , as was wrongly perceived at first instance . We are not going against , as he explained , ORG judgment but the ORG as a whole . The ORG were then applicable at that time and since ORG had not annulled them for being unconstitutional , we must conclude that it considered them valid . And since the law does not provide a definition of the term ‘ life imprisonment’ , it was an element of the regulation of the sentence provided . As Mr PERSON put it , the overall legal situation at the time of the imposition of the sentence , indicated that life imprisonment meant in essence DATE imprisonment . In addition , even if there was doubt , this had to be taken to the applicant ’s benefit . Hence , in view of this fact , there was no reason to lodge an appeal against ORG judgment especially since the applicant had been served with the FCARDINAL notice .", "...", "The suggestion of the appellant presumes that a judicial assessment of unconstitutionality , or , more precisely , that the ORG are ultra vires in relation to the law on the basis of which they were issued , brings about legislative change of whatever form . However , as has been decided ( see PERSON v. ORG ( DATE ) CARDINAL A.A.D. CARDINAL , at CARDINAL and PERSON v. GPE , DATE ) , judicial assessment necessarily adjudicates retrospectively on the law or regulation and , as the principle of separation of powers dictates , it does not entail a legislative development . It is a fact , however , that this question , both at first instance and before us , has not been touched upon from this point of view so as to raise the issue of PERSON no . CARDINAL(CARDINAL)/CARDINAL .", "In any event ORG imposed a sentence of life imprisonment on the appellant , expressly specifying that this meant imprisonment for the remainder of his life . This was the reason for which it did not examine the question of possible consecutiveness and the appellant ’s perception that it is inferred that ORG recognised the Regulations as valid is wrong . ORG essentially considered that the Regulations were not connected with the issue of the sentence envisaged for it did not consider that the then existent Regulations changed the fact that in accordance with the law , imprisonment for the remainder of the appellant ’s life was imposed .", "Was this approach wrong ? Did in reality the law , viewed as a whole , even in the light of the interpretation suggested by the appellant comparing LAW , envisage imprisonment for DATE ? We would say that the first - instance judgment was not wrong in finding that this situation corresponded to the one in the case of GPE . The principle applied , namely that LAW does not concern the enforcement of the sentence , which remains CARDINAL of life imprisonment , is not in question . The ORG were made on the basis of and for the purposes of ORG , whereas it is LAW that determines the sentence , in this case mandatory life imprisonment and no other .", "Nevertheless , and as Mr PERSON also agreed , we are not reviewing the correctness of the judgment of ORG . Such review does not fall within the [ court ’s ] jurisdiction in the context of a habeas corpus application .", "...", "The appellant is being detained on the basis of an ORG judgment after being sentenced to life imprisonment , determined as imprisonment for the remainder of his life . Thus , he is being detained on a lawful basis and his application for release was correctly rejected with the final observation that ‘ the granting of a habeas corpus order in the present case would have been tantamount to reviewing the sentence that had been imposed by ORG , whereas this could have been done in the context of an NORP . ”", "Under NORP law , the offence of premeditated murder carries a mandatory sentence of life imprisonment .", "Section CARDINAL(CARDINAL ) of LAW ( PERSON . CARDINAL ) ( as amended in DATE by Law no . CARDINAL ) provides as follows :", "“ Any person who causes the premeditated death of another person by an unlawful act or omission is guilty of the crime of premeditated murder . ”", "Section CARDINAL(CARDINAL ) of LAW ( PERSON . CARDINAL ) ( as amended in DATE by PERSON no . CARDINAL/CARDINAL ) provides as follows :", "“ Any person who shall be convicted of premeditated murder shall be liable to imprisonment for life . ”", "Before its amendment by PERSON no . CARDINAL/CARDINAL , the above section provided the mandatory sentence of the death penalty for the offence of premeditated murder .", "Section CARDINAL of LAW ( as amended by LAW . CARDINAL and CARDINAL ) provides that , with the exception of premeditated murder and the offence of treason ( sections DATE and CARDINAL of LAW ) , in cases where a person has been convicted of other serious offences that are punishable by a sentence of imprisonment for life , such as manslaughter ( section CARDINAL(CARDINAL ) of LAW ) , or of any other period , the court trying the case has the discretion to impose a sentence of imprisonment for a shorter period or one of a pecuniary form instead which does not exceed the amount that court is empowered to impose .", "In the case of PERSON v. GPE ( ( DATE ) CARDINAL C.L.R. CARDINAL ) , ORG examined the constitutionality of sections CARDINAL and CARDINAL of LAW ( at the time the death penalty was still in force ) , and held as follows :", "“ The first objective of LAW [ of LAW ] is to sanction the death penalty for the limited class of grave crimes specified therein . The second , to vest competence in the legislature to fix such measure of punishment as mandatory in the exercise of its legislative power ... The expression ‘ a law may PERSON in the second part of LAW imports discretion leaving it to the legislature to ordain the death penalty for premeditated murder as a matter of legislative policy . They are not bound but may do so if they deem it appropriate . By necessary implication they may ordain any other fixed measure of punishment including , no doubt , a sentence of life imprisonment . ... Obviously the constitutional legislation singled out the crimes listed in LAW for exceptional treatment in view of their gravity and their repercussions on the well - being of society . In the case of premeditated murder what marks the gravity of the offence is the element of premeditation that necessarily renders the crime particularly heinous . In agreement with ORG , we rule that sections CARDINAL and CARDINAL ) of LAW are not unconstitutional and as such make a sentence of life imprisonment obligatory upon conviction for premeditated murder . ”", "Article CARDINAL of the LAW provides as follows :", "“ CARDINAL . NORP The President or the Vice - President of the Republic shall have the right to exercise the prerogative of mercy with regard to persons belonging to their respective Community who are condemned to death .", "Where the person injured and the offender are members of different Communities such prerogative of mercy shall be exercised by agreement between the President and the Vice - President of the LOC ; in the event of disagreement between the CARDINAL the vote for clemency shall prevail .", "NORP In case the prerogative of mercy is exercised under paragraph CARDINAL or CARDINAL of this Article the death sentence shall be commuted to life imprisonment .", "NORP The President and the Vice - President of the Republic shall , on the unanimous recommendation of the Attorney - General and the Deputy Attorney - General of the Republic , remit , suspend , or commute any sentence passed by a court in GPE in all other cases . ”", "Following the events of DATE , in particular the withdrawal of NORP from the government and the consequent occupation of northern GPE by NORP troops , the decision to remit , suspend , or commute any sentence under LAW has to be taken by the President of the Republic with the concurrence of the Attorney - General of the Republic .", "The Attorney - General may make recommendations or give advice to the President of the Republic concerning the early release of prisoners sentenced to life imprisonment . The President , however , is not bound by such advice or recommendations .", "The relevant provisions of ORG , as applicable at the time FAC of DATE came into force ( see paragraph CARDINAL below ) , read as follows .", "“ ORG may make regulations for the proper custody and support of prisoners , for the nature and amount of labour to be performed by them , for the classification of prisoners according to their different sentences , for the punishment of offences committed by prisoners , and for the maintenance of good order and discipline in prisons . All such regulations , before coming into force , shall be published in the GPE . ”", "“ Regulations made under LAW may make provision whereby , in such circumstances as may be prescribed by the regulations , a person serving a sentence of imprisonment may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct ; and on the discharge of a person from a prison in pursuance of any such remission as aforesaid his sentence shall expire . ”", "“ The Governor may at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions , if any , as the Governor may from time to time determine . ”", "NORP The relevant provisions of FAC of DATE , made on the basis of section CARDINAL of the Prison Discipline Law ( PERSON . CARDINAL ) , read as follows .", "“ No convicted person shall be discharged from the Prison before the expiration of his sentence except as provided by LAW . ”", "“ Every prisoner serving a sentence of DATE or more may be granted remission of CARDINAL of the sentence , on the ground of good conduct and industry . ”", "“ Where the imprisonment is for life or where a sentence of death is commuted to imprisonment for life , remission of the sentence shall be calculated as if the imprisonment is for DATE . ”", "“ The date of the expiration of the sentence and the earliest possible date of discharge shall be entered in the personal record of each prisoner and in the discharge book to be kept at the prison , and the Director shall inspect such records and discharge book at frequent intervals so as to ensure that the provisions of this Regulation are strictly complied with . ”", "“ The Director shall submit to the minister for transmission to the Attorney - General of the Republic the name of every prisoner serving a life sentence who has served DATE of such sentence , or of every prisoner serving a sentence exceeding QUANTITY years who has served DATE of his sentence , who has attained , or is believed in the absence of positive evidence to have attained , DATE , for consideration of his case . The Director shall communicate this rule to every such prisoner . Prisoners must be made distinctly to understand that the submission of their name to the minister in no way implies that any remission of sentence will be necessarily granted . ”", "The Prison ( General ) ( Amending ) Regulations of DATE came into force on CARDINAL DATE and amended ORG of DATE .", "The following definition of “ imprisonment for life ” was introduced in LAW :", "“ In the present Regulations :", "...", "‘ imprisonment for life’ means imprisonment for DATE .", "... ”", "Regulation CARDINAL , governing the remission of the sentence of prisoners serving a sentence of life imprisonment , provided as follows :", "“ ( i ) Every prisoner serving a sentence of imprisonment for life may be granted remission of his sentence on the ground of good conduct and industry , not exceeding in total CARDINAL of such sentence .", "( ii ) The decision on the reduction of the sentence , as well as the extent of such remission for each aforesaid prisoner , shall not be taken unless the said prisoner has served DATE of his sentence . ”", "Regulation CARDINAL(c ) was repealed .", "In the case of GPE v. the Attorney - General of GPE ( ( DATE ) CARDINAL C.L.R. CARDINAL ) , ORG stated , inter alia , the following concerning subsidiary legislation :", "“ ... the power for the enactment of subsidiary legislation must , in the nature of things , emanate strictly from the provisions of the enabling law . Any other approach would constitute an encroachment on the legislative powers of ORG , the body exclusively entrusted with legislative powers , under our LAW . Subsidiary legislation enacted without just cause will be declared ultra vires ... A body to which power is delegated to legislate must derive authority from the provisions of the enabling enactment ; any attempt to bypass or transgress the limits set thereto will be struck down as ultra vires . They can not infer the existence of any authority to legislate , other than that expressly conferred by law , and must , therefore , confine themselves to the CARDINAL corners of the enabling enactment . Any relaxation of this approach would certainly undermine the system of separation of powers that pervades our system of law and finds expression in the LAW . ”", "In the case of PERSON v. GPE ( ( DATE ) , judgment of DATE ) , ORG , when examining the manner of the remission of sentence by the President under LAW with regard to a prisoner serving a DATE sentence , stated the following :", "“ ... Under LAW the President of the Republic remitted the sentence passed by the ORG and not the sentence that would have been served in the light of LAW . This is clear from the wording of LAW which in so far as material on this point says that ‘ The President ... remits ... any sentence passed by a court in the Republic ... ’ . ”", "In its judgment of CARDINAL DATE in the case of GPE v. PERSON , alias Yiouroukkis ( case no . CARDINAL ) ORG , when sentencing the accused for premeditated murder under LAW , stated , among other things , the following :", "“ The accused has been sentenced to life imprisonment after being found guilty of premeditated murder . This sentence is imposed by the ORG mandatorily ; since it is the only one provided by LAW , PERSON . CARDINAL , as amended by PERSON no . CARDINAL/CARDINAL , which also amends section CARDINAL of LAW , the ORG can not impose another sentence for the crime of premeditated murder . After the abolition by this PERSON of the death penalty , the legislature provided for the above sentence so it would be in agreement with LAW . LAW provides for the commutation of a death sentence to a sentence of life imprisonment , in the event that the President of GPE his right of pardon on the basis of LAW .", "...", "Counsel for the accused suggested that the ORG should order that the sentence of life imprisonment that was imposed on the accused should run concurrently with the one he is already serving .", "...", "... [ i]n support of his suggestion he referred to the case of NORP v. PERSON ( DATE ) CARDINAL All E.R. CARDINAL .", "... In contrast , PERSON argued that the ORG must order that the sentence imposed should be served after the one already being served by the accused because , on the basis of the Regulations of CARDINAL ( ORG , Part CARDINAL of CARDINAL ) , which were made by ORG and published in ORG after being put before ORG , the interpretation of the term ‘ life imprisonment’ is given as meaning ‘ imprisonment for DATE . Regulation CARDINAL of these ORG provides that a person sentenced to life imprisonment may be granted remission of his sentence on the ground of good conduct and industry , not exceeding in total CARDINAL of this sentence . Therefore , Mr GPE continued , the sentence of life imprisonment has been determined at a period of DATE , or DATE if the convicted person demonstrates good conduct . Consequently , what Lord PERSON said in the case of R v. PERSON , on which counsel for the accused relied , does not apply . Mr PERSON also showed his concern , as Senior Counsel of the Republic , about the possible cases , such as the present one , where CARDINAL person commits many murders but is only given CARDINAL sentence of imprisonment for DATE or DATE .", "Our opinion is that neither Mr GPE nor PERSON is treating the legal issue correctly .", "...", "On the basis of everything said by Lord PERSON [ in the case of NORP v. PERSON ( DATE ) CARDINAL All E.R. CARDINAL ] , life imprisonment means imprisonment for the remainder of the time for which the applicant is alive . Accordingly , and since a sentence of life imprisonment has been imposed on the accused , no other such sentence can follow . PERSON suggests , however , that the court must issue this order , for he is also basing himself on the Regulations of DATE and is concerned that , since these Regulations are in force , the accused may possibly be released in DATE and thus is not facing the danger of serving another prison sentence of QUANTITY or DATE , if the second sentence follows the first one .", "LAW CARDINAL of the LAW provides that a court may not impose a longer sentence than that provided for by the law at the time of the commission of the offence . LAW indeed provides that the sentence of life imprisonment is mandatory and the only sentence following conviction for premeditated murder . In our judgment , the sentence ‘ imprisonment for life’ means exactly what is stated by the simple NORP words , that is , imprisonment for the remainder of the biological existence of the convicted person . This interpretation was also given by ORG in the case of NORP v. PERSON ... As we have already stated , section CARDINAL(CARDINAL ) of LAW is the only provision prescribing the sentence of life imprisonment as mandatory , and this in the light of the provisions of LAW . LAW were drawn up on the basis of ORG PERSON . CARDINAL ) , which still applies on the basis of the provisions of the LAW even though it was enacted just when GPE became an NORP colony . The provisions of this law , however , have to be applied in such a way that they comply with the express provisions of LAW . We wonder whether these Regulations are not unconstitutional and whether the interpretation of the term ‘ imprisonment for life’ , which is encountered in the LAW and LAW , so as to mean ‘ DATE , is arbitrary . We say ‘ we wonder’ since such an issue has not been raised before us and thus we have no right in this procedure to convey an opinion on this . Another observation that can be made , however , is the following : it appears that the drafters of the Regulations , even if they are valid , did not notice the special provision of LAW of the above PERSON ( PERSON . CARDINAL ) which concerns life prisoners and provides that they may be released on licence by a decision of the ‘ PERSON , which may be revoked . The life sentence is specifically provided for in the above PERSON to last for life , along the lines of the LANGUAGE legal system . This is why Lord PERSON stated what we quoted above . Another issue that is raised , even for the purposes of academic debate , is to what extent a law or regulation can provide for the remission , suspension or commutation of a convicted person ’s sentence in view of the express provision of LAW which bestows this privilege on the President of the Republic with the concurrence of the Attorney - General .", "It has been established by judicial precedent that when the court imposes a sentence , it does not take into account regulations , even if they are applicable , that allow for the remission of the sentence when a convicted person displays good conduct . The Regulations of DATE were made in order to serve the purposes to which the court does not refer when passing the sentence , which is determined on the basis of the applicable legislation and LAW . It is therefore up to the competent authorities , when and if the matter is raised at the appropriate time , to take into account what we have mentioned above in the form of legal observations . We have already imposed on the accused the sentence that the law envisages , that is , life imprisonment , and we have nothing else to add . ”", "On DATE , in a letter to ORG , through ORG , the Attorney - General at the time stated the following concerning the prisoner PERSON :", "“ In reply to your letter dated DATE and file no . GPE , I would inform you that the convicted person PERSON , to whom your letter refers , was sentenced to life imprisonment by ORG on DATE in criminal case no . ORG and this was interpreted in ORG judgment to mean imprisonment for the rest of his biological existence .", "This legal approach concerning the nature of life imprisonment was also adopted in a subsequent case , no . CARDINAL , by ORG on DATE .", "In view of the above , the duration of the sentence in the case of a sentence of life imprisonment is not determined and is not reduced in accordance with LAW ) of ORG DATE respectively , but the sentence in question is subject to remission or suspension by the President of the Republic , in accordance with LAW , who in exercising his powers , may take into account , among other things , the spirit of the above - mentioned LAW and PERSON ) . ”", "DATE . On DATE , in a letter to the Director General of ORG , the Attorney - General at the time stated the following concerning the prisoner PERSON :", "“ In reply to your letter dated DATE and file no . GPE CARDINAL.CARDINAL.CARDINAL , concerning the duration of the life imprisonment of the convicted person , PERSON , I observe the following :", "...", "In the present case ORG , when it imposed the sentence of life imprisonment on the above - mentioned convicted person , interpreted section CARDINAL(CARDINAL ) of LAW , PERSON . CARDINAL ( as amended , for this purpose , by PERSON no . CARDINAL/CARDINAL ) and judged that life imprisonment means imprisonment for the rest of the convicted person ’s biological existence . Consequently , there is a court judgment for the duration of the sentence of the specific convicted person which has not been overruled on appeal and is binding and mandatory for all the authorities of the Republic .", "The interpretation of the relevant provision of LAW given by ORG was followed ... , in a subsequent case , by ORG and since this interpretation has not been questioned by ORG or overruled by ORG , it must be regarded as the correct judicial interpretation of LAW provision in question and must be applied in the future to all situations where an accused is sentenced to life imprisonment , even if reference is not made in the judgment to the fact that such imprisonment means imprisonment for the rest of his biological existence .", "...", "No issue of unequal treatment of prisoners who are serving a sentence of life imprisonment in comparison with prisoners who are serving sentences of a shorter term can be raised , because the sentence of life imprisonment , owing to its nature , differs radically from any other sentence of imprisonment and issues of unequal treatment can arise only when comparing similar , and not dissimilar , things .", "Furthermore , there is no possibility of applying secondary legislation , such as the Prison ( General ) Regulations of DATE and DATE , when this conflicts with primary legislation such as the relevant provision of LAW . This is why , to the extent that the LAW in question conflict with the relevant provision of LAW as it has been interpreted judicially , they can not be applied .", "...", "... when the President of the Republic , in cooperation with the Attorney - General , examines the possibility of remission of the sentence in accordance with LAW , in the case in which the convicted person is serving a sentence of life imprisonment , he will have in mind that the sentence , unless there is a remission , means imprisonment for the remainder of the biological existence of the convicted person . ”", "On DATE ORG ( first instance ) in the case of PERSON v. GPE ( see paragraph CARDINAL above ) ruled that the Regulations were unconstitutional and ultra vires . The prisoner in that case had also been convicted of premeditated murder and sentenced to life imprisonment . He had submitted a habeas corpus application to ORG when he was not released on the date that had been given to him as a release date by the prison authorities . ORG dismissed his application and affirmed that the term “ life imprisonment ” under LAW meant imprisonment for the remainder of the life of the convicted person . In particular , the court stated as follows :", "“ LAW provides a mandatory sentence for the crime of premeditated murder : ‘ ... a sentence of imprisonment for life’ ( see section CARDINAL(CARDINAL ) of LAW as amended by PERSON no . CARDINAL/CARDINAL ) . The constitutionality of this provision of the law was examined in the case of GPE ( DATE ) CARDINAL C.L.R. CARDINAL and was held to be correct in the light of the provisions of Articles CARDINAL § CARDINAL and CARDINAL of the LAW . The sentence of life imprisonment is not equated by the legislature with a prison sentence for any period of time , neither where it is imposed as a mandatory punitive measure on the basis of section CARDINAL(CARDINAL ) nor as a discretionary measure under LAW of LAW , PERSON . CARDINAL . This would anyhow be contrary to the provisions of these CARDINAL sections of LAW since life imprisonment is mandatory for the crime of premeditated murder whereas for the purposes of section CARDINAL , where life imprisonment is a discretionary measure , the courts have the discretion to impose a sentence of a shorter period . A prison sentence for a period shorter than life imprisonment may comprise a sentence longer than imprisonment for DATE with which life imprisonment is equated on the basis of LAW of FAC . In the case of PERSON ( CARDINAL ) CARDINAL C.L.R. CARDINAL ORG imposed a sentence of imprisonment of DATE following the commutation of the appellant ’s conviction for premeditated murder to manslaughter .", "Mr PERSON [ the applicant ’s advocate ] suggested that the enactment of ORG of DATE ( LAW CARDINAL ) by ORG with the approval of the ORG , as provided by the enabling PERSON for the Submission to ORG issued under LAW of DATE ( no . CARDINAL/CARDINAL ) and ORG of DATE ( no . CARDINAL ) resulted in the amendment of the relevant provisions of LAW so that a sentence of life imprisonment entailed only imprisonment for DATE . In support of his position he referred to ORG , CARDINALnd edition , pp . CARDINAL - CARDINAL , where it is stated that in GPE the amendment of secondary legislation by ORG entails its transformation into primary legislation .", "This suggestion ignores :", "( a ) the fact that FAC were made within the scope of the authority granted by ORG and not on the basis of LAW ;", "( b ) the direct connection between the Regulations of DATE with the authority granted by section CARDINAL of PERSON . CARDINAL and the fact that authority for their issue is drawn exclusively from the provisions of that law ;", "( c ) the strict separation of powers which applies in GPE and the restriction of the executive to the enactment of secondary legislation on the basis of express authority which is granted by primary legislation ( see Police v. ORG , CARDINAL GPE CARDINAL ; GPE v. Attorney - General ( DATE ) CARDINAL C.L.R. CARDINAL , and GPE ( DATE ) CARDINAL C.L.R. CARDINAL ) .", "Acceptance of Mr PERSON ’s position would have , inter alia , as a consequence the involvement of the executive in the enactment of primary legislation in violation of LAW and the principle of separation of powers . In President of ORG ( DATE ) CARDINAL C.L.R. CARDINAL and President of ORG ( DATE ) CARDINAL C.L.R. CARDINAL , it is noted that the participation of ORG in the creation of secondary legislation does not transform its nature into primary legislation .", "In Republic v. Sampson ( Civil Appeal DATE , decided on CARDINAL DATE ) the full bench of ORG had the opportunity to examine the legal status of ORG in relation to the enabling law , ORG PERSON . CARDINAL . At the outset we noted that this law was enacted in DATE and , as with any other colonial law which was in force at the time of the proclamation of the Republic , the provisions of PERSON . CARDINAL are applied while being adjusted ‘ to the necessary extent to the Constitution’ ( LAW ) . This adjustment , as we have pointed out , is within the competence of the judiciary ( see , inter alia , ORG ( DATE ) CARDINAL C.L.R. CARDINAL , and ORG ) v. ORG DATE , decided on CARDINAL DATE ) .", "The adjustment of the provisions of PERSON . CARDINAL ensures that its provisions are compatible with the principle of the separation of powers , which constitutes the judiciary as the sole judge of the punishment of offenders ( see , inter alia , PERSON ( cited above ) and ORG of GPE v. PERSON , GPE CARDINAL ; GPE of GPE v. PERSON , CARDINAL R.S.C.C. DATE ; ORG of Lefka v. PERSON , CARDINAL R.S.C.C. DATE ; PERSON v. PERSON , CARDINAL R.S.C.C. DATE ; GPE of GPE v. PERSON , CARDINAL R.S.C.C. DATE ; GPE of GPE v. PERSON and Another , CARDINAL GPE DATE ; GPE Police v. PERSON , CARDINAL R.S.C.C. DATE ; GPE of PERSON v. PERSON , CARDINAL R.S.C.C. DATE ; PERSON v. The Police ( DATE ) CARDINAL J.S.C. CARDINAL ) .", "Consequently , to the degree and extent that section CARDINAL , in conjunction with section CARDINAL , of PERSON . CARDINAL confers power for the determination of the duration of a sentence of imprisonment on an authority other than a judicial one , it is contrary to the LAW and has ceased to be in force following the proclamation of the Republic . Besides , the granting of power to ORG to remit the sentence because of good conduct and industry , under the provisions of LAW , is contrary to the principle of the separation of powers , which precludes the involvement of an executive or administrative organ in the determination of the punishment of an offender . The only authority on whom power is conferred by LAW to remit , suspend or commute a prison sentence is the President of the Republic , acting with the concurrence of the Attorney General . The examination of the power to make secondary legislation conferred by sections CARDINAL and CARDINAL of PERSON . CARDINAL is not directly required in this case , since neither of the CARDINAL provisions concerns the serving of a sentence of life imprisonment . The serving of life imprisonment is regulated specifically by the provisions of LAW of PERSON . CARDINAL , from which it emerges that life imprisonment means imprisonment for the remainder of the life of the convicted person , subject to the right granted to the President of the Republic to suspend the sentence for such period of time as may be fixed on the release of the convicted person on licence . LAW . CARDINAL is in harmony with the LAW and has maintained its force after the proclamation of the Republic inasmuch as it is consistent with the powers conferred on the President of the Republic by LAW . ”", "ORG thus concluded that it had not been shown that Mr PERSON should have been released on the date given or any subsequent date and , consequently , the habeas corpus application was rejected .", "In DATE CARDINAL life prisoners ( CARDINAL serving a mandatory life sentence and CARDINAL a discretionary life sentence ) were released on the basis of LAW . Their sentences were commuted to twenty years’ imprisonment and then remitted so as to allow their immediate release . The procedure followed for the release of these prisoners was the same . The following example concerns the case of CARDINAL such prisoner :", "In a letter of CARDINAL DATE to the President of the Republic , the Attorney - General of the Republic stated the following in relation to a life prisoner :", "“ Dear Mr President ,", "PERSON ( convict no . DATE in FAC ) was sentenced by ORG to life imprisonment for premeditated murder .", "On the basis of the applicable Prison ( General ) Regulations DATE and DATE , it was considered that life imprisonment was equal to imprisonment for DATE and it was announced to him , DATE after he was sentenced , that his sentence would be DATE imprisonment from DATE .", "In the meantime his sentence was reduced to CARDINAL years’ imprisonment on account of a presidential pardon in respect of CARDINAL of the sentence ( DATE ) , on the occasion of the election of the new President of the Republic in DATE , and on account of the remission of DATE for good conduct and industry , in accordance with ORG , and the date of his release was determined as DATE .", "On DATE ORG , in another case , judged that life imprisonment was for the remainder of the biological existence of the convicted person and , hence , on DATE , I gave the opinion that in such a case the relevant Regulations can not be applied in a way that would automatically reduce life imprisonment to CARDINAL years’ imprisonment .", "In the light of all the above , I suggest that this convicted person ’s sentence should be commuted to DATE imprisonment and reduced by DATE on the basis of the presidential pardon of DATE and by such an additional period that he may be immediately released .", "The life prisoners PERSON , and PERSON and PERSON were afforded the same treatment , the first CARDINAL in DATE and the last - mentioned recently .", "I take this opportunity to suggest , on humanitarian grounds , that the sentences of all life prisoners whose date of release was determined , on the basis of the Prison ( General ) Regulations DATE and DATE , as falling within DATE and DATE should be commuted to DATE imprisonment and reduced so they may be released immediately and not kept in a state of agony as to whether they will eventually receive the same treatment .", "The next date determined , on the basis of the above Regulations , for release of a life prisoner is DATE .", "The relevant order is enclosed for your signature in the event that you agree with my above suggestion . ”", "On DATE the President of the Republic announced the following in relation to the same life prisoner :", "“ Because the convicted person PERSON ( no . CARDINAL ) was sentenced , on DATE , in criminal case no . CARDINAL , by ORG , to life imprisonment for premeditated murder , and", "§ CARDINAL of the LAW , commutation of the sentence to imprisonment of DATE and its remission so that he may be released immediately ;", "For this reason , on the recommendation of the Attorney - General of the Republic , by this Order , on the basis of LAW , the convicted person ’s sentence is commuted to DATE imprisonment and is remitted so that he is released immediately . ”", "On DATE an announcement was made concerning the release of CARDINAL life prisoners , the relevant part of which stated :", "“ The President of the Republic , on the basis of recommendations to this end by the Attorney - General of the Republic , and with the opportunity of the first anniversary of ORG during his presidential term , has decided to remit the sentences , so that they are released immediately , of the following life prisoners , who , if their sentences had been assessed on the basis of CARDINAL years’ imprisonment , would have been released in DATE or DATE : PERSON PERSON Saado El Khalifa Khalet Abdel Kader El Khatib Saadeldin Mohammad Idress Achilleas Georgiou Avraam Anastasis PERSON . ”", "On DATE , the Prison Law of DATE ( Law no . CARDINAL ) was enacted , repealing and replacing LAW ( PERSON . CARDINAL ) .", "The relevant part of section CARDINAL(CARDINAL ) , governing the release of prisoners , provides as follows :", "“ No prisoner who is serving a sentence of imprisonment may be discharged from prison until he has served his sentence in accordance with the provisions of this law except in the case provided for by LAW or any other law in force . ”", "Section CARDINAL(CARDINAL ) of the Prison Law of DATE provides that , with the exception of prisoners serving a life sentence , a sentence can be remitted if the prisoner demonstrates good conduct and industry . The relevant part reads as follows :", "“ In accordance with the provisions of this PERSON , a person who is serving a prison sentence shall obtain remission of his sentence if he displays good conduct and industry , unless a sentence of life imprisonment has been imposed on him . ”", "Section CARDINAL of the PERSON ( as amended by PERSON no . CARDINAL(I)/CARDINAL ) , governing the release of prisoners under conditions , provides as follows :", "“ CARDINAL . Subject to the provisions of the LAW , the President of the Republic , with the agreement of the Attorney - General of the Republic , may order by decree the conditional release of a prisoner at any time .", "A prisoner who is conditionally released by virtue of this section , may , until the expiry of his sentence , be under the supervision and inspection of a person specified in LAW and shall conform to whatever other conditions and restrictions are set out in the said Decree .", "NORP The President of the Republic , with the agreement of the Attorney - General of the Republic , may at any time by a new decree amend or nullify the conditions and restrictions contained in the decree issued by virtue of subsection CARDINAL above .", "NORP If before the expiry of the sentence of the prisoner who is released , as referred to above , the President of the Republic , with the agreement of the Attorney - General of the Republic , is satisfied that the said person has failed to comply with any valid condition or restriction set out in the decree , he may by a new decree revoke the convicted person ’s conditional release and order his return to prison to serve the rest of his sentence .", "After the convicted person ’s return to prison he shall be entitled to the benefits provided in CARDINAL of this PERSON only after DATE has elapsed from the date of his return to prison and provided that during DATE he has displayed industry and good conduct .", "The period of time from the date of the decree for the release of the prisoner on the basis of this section until the date of its revocation shall be included in the period of the sentence served by the prisoner .", "A prisoner who does not comply with the decree revoking his release shall be deemed to be a fugitive from lawful detention . ”", "The relevant provisions of the LAW read as follows .", "“ No person shall be deprived of his life except in the execution of a sentence of a competent court following his conviction of an offence for which this penalty is provided by law . A law may provide for such penalty only in cases of premeditated murder , high treason , piracy jure gentium and capital offences under military law . ”", "“ No person shall be subjected to torture or to inhuman or degrading punishment or treatment . ”", "“ No person shall be held guilty of any offence on account of any act or omission which did not constitute an offence under the law at the time when it was committed ; and no person shall have a heavier punishment imposed on him for an offence other than that expressly provided for it by law at the time when it was committed . ”", "“ No law shall provide for a punishment which is disproportionate to the gravity of the offence . ”", "“ CARDINAL . A party to any judicial proceedings , including proceedings on appeal , may , at any stage thereof , raise the question of the unconstitutionality of any law or decision or any provision thereof material for the determination of any matter at issue in such proceedings and thereupon the ORG before which such question is raised shall reserve the question for the decision of ORG and stay further proceedings until such question is determined by ORG .", "ORG , on a question so reserved , shall , after hearing the parties , consider and determine the question so reserved and transmit its decision to the ORG by which such question has been reserved .", "Any decision of ORG under paragraph CARDINAL of this Article shall be binding on the court by which the question has been reserved and on the parties to the proceedings and shall , in case such decision is to the effect that the law or decision or any provision thereof is unconstitutional , operate as to make such law or decision inapplicable to such proceedings only . ”", "Under the LAW the Attorney - General is an independent officer of the Republic . The relevant parts of LAW provide as follows :", "“ CARDINAL . NORP The President and the Vice - President of the Republic shall appoint jointly CARDINAL persons who are qualified for appointment as a judge of ORG one to be the Attorney - General of GPE and the other to be the Deputy Attorney - General of the Republic .", "...", "The Attorney - General of the Republic shall be the Head and the Deputy AttorneyGeneral of the Republic shall be the Deputy Head of ORG which shall be an independent office and shall not be under any Ministry .", "...", "The Attorney - General and the Deputy Attorney - General of the Republic shall be members of the permanent legal service of the LOC and shall hold office under the same terms and conditions as a judge of ORG other than its President and shall not be removed from office except on the like grounds and in the like manner as such judge of ORG .", "... ”", "Under LAW , the Attorney - General is the legal adviser of the Republic and the President :", "“ CARDINAL . The Attorney - General of the Republic , assisted by the Deputy Attorney - General of the Republic , shall be the legal adviser of the Republic and of the President and of the Vice - President of the Republic and of ORG and of the Ministers and shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him by this LAW or by law .", "The Attorney - General of the Republic shall have power , exercisable at his discretion in the public interest , to institute , conduct , take over and continue or discontinue any proceedings for an offence against any person in the LOC . Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions . ”", "In her report the Commissioner for Administration examined , inter alia , issues concerning life imprisonment . In this context she examined the situation in other member ORG , principally GPE , GPE and GPE , vis - à - vis GPE . She stated , amongst other things , the following :", "“ ...", "Life imprisonment", "In LOC there are currently CARDINAL prisoners who have been sentenced to life imprisonment . The matter of the sentence of life imprisonment , in the light of the regime in force , is being discussed both by ORG and by the competent committee under the aegis of ORG , which also had the initiative in promoting the subject . The central component of this process now in progress is the regulating by law of life imprisonment in a way which will give the possibility to those serving life sentences of being released once they have served a significant part of their sentence and previously received the appropriate treatment and preparation . Reservations are expressed about whether such regulating is constitutional .", "I am of the opinion that the regulating by law of the matter is permitted by LAW . It is not a procedure for granting a pardon but the regulating of the serving of a sentence which in no way conflicts with the prerogative of the President of the Republic to remit , commute or suspend a sentence by virtue of LAW . In accordance with the separation of powers , the regulating by law of the matter could include , in the case of the imposition by the courts of the sentence of life imprisonment , empowering the same court to fix a minimum term for the sentence which would be served obligatorily before examination of the possibility of the conditional release of the prisoner . I am of the opinion that this minimum term of the sentence should not exceed CARDINAL - five years . Within the framework of the proposed regulation a committee may be set up with an advisory role which , on the basis of enacted criteria and in accordance with the rehabilitation progress of each prisoner serving a life sentence and the particular circumstances of each case , could recommend conditional release .", "...", "Conclusions – Recommendations – Suggestions", "...", "– In relation to the matter of prisoners serving life sentences , I consider essential the acceleration of the process of the regulating by law of the matter in a way which will fix a minimum time - limit for serving the sentence , which will not exceed CARDINAL - five years , after the expiration of which and according to the circumstances of each case the possibility of the conditional release of a prisoner serving a life sentence can be examined .", "... ”", "The following paragraphs contain a summary of the information provided by the Government in the context of the present proceedings as to the position under their domestic law concerning the operation and validity of the DATE and CARDINAL Regulations .", "Prior to ORG judgment in the case of PERSON v. GPE ( see paragraphs CARDINAL , DATE and DATE above ) , the Regulations – in particular LAW and DATE – were understood by the executive and administrative authorities of the Republic , including ORG , as imposing a maximum period of DATE to be served by any person who had been sentenced to life imprisonment . Any prisoner sentenced to life imprisonment after the above Regulations came into force would , in practice , have had a period of DATE automatically deducted from the time to be served in prison by way of remission pursuant to LAW . DATE of remission could be deducted from this DATE period as a consequence of misconduct by the prisoner . It was understood by the LOC ’s executive and administrative authorities , including ORG , that a life prisoner ’s misconduct could not result in him being detained beyond the DATE point . In fact , because of the very limited number of life prisoners in GPE and the dates of their respective convictions , no life prisoner had ever reached the point in his sentence when these provisions were applied directly so as to lead to his release . The release of the CARDINAL life prisoners in DATE had been pursuant to LAW in the light of how the Regulations would have operated in their cases .", "In its judgment in the case of PERSON , ORG declared Regulation CARDINAL to be unconstitutional and ultra vires in relation to the enabling primary legislation , namely FAC . Under NORP domestic law , the position was that in proceedings where the constitutionality of subsidiary legislation was raised by a party by way of collateral challenge , the court ’s judgment only took effect in relation to the particular subject matter of the proceedings . Thus , ORG judgment in the case of LAW , in which the constitutionality of LAW had been raised as a collateral issue to PERSON habeas corpus application , was only operative so as to determine the ongoing legality of his detention . It also followed from LAW that the above judgment did not operate so as to render LAW unconstitutional and invalid as against persons other than the parties to that case . In other words , it did not result in LAW being rendered invalid vis - à - vis other individuals .", "Because ORG judgment in PERSON had been binding on the parties to the case , including the executive and administrative authorities of GPE could not thereafter lawfully be applied by the above authorities . Nonetheless , the judgment could not be understood as having retrospective effect such as to impugn the validity of Regulation CARDINAL as it had been applied to other individuals affected by that Regulation . Therefore , the fact that Regulation CARDINAL was declared unconstitutional and ultra vires by ORG in DATE did not have retrospective effect such as to render the Regulation void ab initio for all purposes . It did not , for example , render unlawful any action taken pursuant to LAW between the date of its enactment and the judgment in Hadjisavvas . Accordingly , at the time of the applicant ’s offence in DATE or at the time he was sentenced in DATE , LAW could not have been void or without legal effect in respect of the applicant . After the Hadjisavvas judgment , however , the administrative and executive authorities of the Republic could not lawfully take action , in reliance on LAW , treating it as reducing a life sentence imposed by a court to a maximum of CARDINAL years’ imprisonment since this would have been inconsistent with the LAW as authoritatively interpreted by ORG in that judgment .", "DATE . DATE of ORG on the Prevention of Terrorism provides as follows :", "“ ...", "Nothing in this Convention shall be interpreted either as imposing an obligation to extradite if the person who is the subject of the extradition request risks being exposed to the death penalty or , where the law of the requested party does not allow for life imprisonment , to life imprisonment without the possibility of parole , unless under applicable extradition treaties the requested party is under the obligation to extradite if the requesting party gives such assurance as the requested party considers sufficient that the death penalty will not be imposed or , where imposed , will not be carried out , or that the person concerned will not be subject to life imprisonment without the possibility of parole . ”", "Matters relating to long - term imprisonment and conditional release were addressed by ORG as DATE as DATE , when it adopted ORG ( CARDINAL ) CARDINAL on the treatment of long - term prisoners on CARDINAL DATE ( at the FAC meeting of ORG ) :", "“ ORG ,", "...", "I. Recommends that the governments of the member States :", "...", "NORP ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted ;", "grant the prisoner conditional release , subject to the statutory requirements relating to the time served , as soon as favourable prognosis can be formulated ; considerations of general prevention alone should not justify refusal of conditional release ;", "adapt to life sentences the same principles as apply to long - term sentences ;", "NORP ensure that a review , as referred to in CARDINAL , of the life sentence should take place , if not done before , after DATE of detention and be repeated at regular intervals ;", "... ”", "In its general report the sub - committee responsible for drafting the resolution stated :", "“ ... it is inhuman to imprison a person for life without any hope of release . A crime - prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society . Nobody should be deprived of the chance of possible release . Just how far this chance can be realised must depend on the individual prognosis . ”", "On DATE ORG R ( CARDINAL ) CARDINAL concerning prison overcrowding and prison population inflation ( adopted at the ORG meeting of ORG ) , the relevant part of which provides as follows .", "“ ...", "The development of measures should be promoted which reduce the actual length of the sentence served , by giving preference to individualised measures , such as early conditional release ( parole ) , over collective measures for the management of prison overcrowding ( amnesties , collective pardons ) .", "Parole should be regarded as CARDINAL of the most effective and constructive measures , which not only reduces the length of imprisonment but also contributes substantially to a planned return of the offender to the community .", "NORP In order to promote and expand the use of parole , best conditions for offender support , assistance and supervision in the community have to be created , not least with a view to prompting the competent judicial or administrative authorities to consider this measure as a valuable and responsible option .", "Effective programmes for treatment during detention and for supervision and treatment after release should be devised and implemented so as to facilitate the resettlement of offenders , to reduce recidivism , to provide public safety and protection and to give judges and prosecutors the confidence that measures aimed at reducing the actual length of the sentence to be served and the community sanctions and measures are constructive and responsible options .", "... ”", "On DATE ORG adopted Rec(CARDINAL)CARDINAL on conditional release ( at the NORP meeting of ORG ) , the relevant parts of which provide as follows .", "“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,", "Considering that it is in ORG member States’ interest to establish common principles regarding the enforcement of custodial sentences in order to strengthen international cooperation in this field ;", "Recognising that conditional release is one of the most effective and constructive means of preventing reoffending and promoting resettlement , providing the prisoner with planned , assisted and supervised reintegration into the community ;", "Considering that it should be used in ways that are adapted to individual circumstances and consistent with the principles of justice and fairness ;", "...", "Considering , therefore , that it is desirable to reduce the length of prison sentences as much as possible and that conditional release before the full sentence has been served is an important means to that end ;", "Recognising that conditional release measures require the support of political leaders , administrative officials , judges , public prosecutors , advocates and the public , who therefore need a detailed explanation as to the reasons for adapting prison sentences ;", "Considering that legislation and the practice of conditional release should comply with the fundamental principles of democratic GPE governed by the rule of law , whose primary objective is to guarantee human rights in accordance with ORG and the case - law of the organs entrusted with its application ;", "...", "Recommends that governments of member PERSON :", "ORG introduce conditional release in their legislation if it does not already provide for this measure ;", "be guided in their legislation , policies and practice on conditional release by the principles contained in the appendix to this recommendation ;", "NORP ensure that this recommendation on conditional release and its explanatory memorandum are disseminated as widely as possible .", "Appendix to Recommendation Rec(CARDINAL)CARDINAL", "...", "II . General principles", "NORP Conditional release should aim at assisting prisoners to make a transition from life in prison to a law - abiding life in the community through post - release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community .", "CARDINAL(a ) In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community , the law should make conditional release available to all sentenced prisoners , including life - sentence prisoners .", "CARDINAL ) If prison sentences are so short that conditional release is not possible , other ways of achieving these aims should be looked for .", "When starting to serve their sentence , prisoners should know either when they become eligible for release by virtue of having served a minimum period ( defined in absolute terms and/or by reference to a proportion of the sentence ) and the criteria that will be applied to determine whether they will be granted release ( ‘ discretionary release system’ ) or when they become entitled to release as of right by virtue of having served a fixed period defined in absolute terms and/or by reference to a proportion of the sentence ( ‘ mandatory release system’ ) .", "The minimum or fixed period should not be so long that the purpose of conditional release can not be achieved .", "...", "IV . Granting of conditional release", "Discretionary release system", "The minimum period that prisoners have to serve to become eligible for conditional release should be fixed in accordance with the law .", "The relevant authorities should initiate the necessary procedure to enable a decision on conditional release to be taken as soon as the prisoner has served the minimum period .", "The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit . They should also be realistic in the sense that they should take into account the ORG personalities and social and economic circumstances as well as the availability of resettlement programmes .", "The lack of possibilities for work on release should not constitute a ground for refusing or postponing conditional release . Efforts should be made to find other forms of occupation . The absence of regular accommodation should not constitute a ground for refusing or postponing conditional release and in such cases temporary accommodation should be arranged .", "The criteria for granting conditional release should be applied so as to grant conditional release to all prisoners who are considered as meeting the minimum level of safeguards for becoming law - abiding citizens . It should be incumbent on the authorities to show that a prisoner has not fulfilled the criteria .", "If the decision - making authority decides not to grant conditional release it should set a date for reconsidering the question . In any case , prisoners should be able to reapply to the decision - making authority as soon as their situation has changed to their advantage in a substantial manner .", "Mandatory release system", "The period that prisoners must serve in order to become entitled to release should be fixed by law .", "...", "ORG . Procedural safeguards", "Decisions on granting , postponing or revoking conditional release , as well as on imposing or modifying conditions and measures attached to it , should be taken by authorities established by law in accordance with procedures covered by the following safeguards :", "( a ) NORP convicted persons should have the right to be heard in person and to be assisted according to the law ;", "( b ) the decision - making authority should give careful consideration to any elements , including statements , presented by convicted persons in support of their case ;", "( c ) NORP convicted persons should have adequate access to their file ;", "( d ) decisions should state the underlying reasons and be notified in writing .", "Convicted persons should be able to make a complaint to a higher independent and impartial decision - making authority established by law against the substance of the decision as well as against non - respect of the procedural guarantees .", "Complaints procedures should also be available concerning the implementation of conditional release .", "All complaints procedures should comply with the guarantees set out in Rules CARDINAL of the NORP rules on community sanctions and measures .", "Nothing in DATE should be construed as limiting or derogating from any of the rights that may be guaranteed in this connection by LAW .", "... ”", "On DATE ORG adopted Rec(CARDINAL)CARDINAL on ORG ( at the PERSON meeting of ORG ) , the relevant part of which provides as follows .", "“ Part VIII", "Sentenced prisoners", "Objective of the regime for sentenced prisoners", "CARDINAL NORP In addition to the rules that apply to all prisoners , the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime - free life .", "CARDINAL Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment . ”", "“ CARDINAL . Meanwhile , the ORG has passed amendments to the LAW allowing prison sentences to be replaced by community service . The Minister of ORG also disclosed current discussions in the government on the penalty of life imprisonment , with a view to making termination of imprisonment possible subject to certain conditions . ”", "“ CARDINAL . In her report concerning the detention conditions at FAC in DATE , the ORG criticised the Cypriot authorities’ interpretation of life sentence as imprisonment for the rest of the convicted person ’s life . In most other ORG member GPE life imprisonment does not entail imprisonment for the rest of the natural life of the convicted person . At the time of the Commissioner ’s first visit there were discussions in the government about the possibility of terminating life imprisonment subject to certain conditions . A solution to this question has yet to be found , though . The Deputy Director of FAC spoke of the difficulties in dealing with those currently serving life sentence , CARDINAL men at the time of the ORG ’s visit , both in terms of the ORG morale , and security issues . The usual incentives for encouraging good behaviour in prisoners were inevitably of no use in relation to those serving life sentences , and this posed security problems both for the warders and for the other prisoners . ”", "The Council Framework Decision CARDINAL/CARDINAL/JHA of DATE on the NORP arrest warrant and the surrender procedures between member GPE ( ORG CARDINAL of DATE , p. CARDINAL ) provides for the execution in any member ORG of a judicial decision made in another member ORG for the arrest and surrender of a person for the purpose of criminal proceedings or the execution of a custodial sentence . The relevant parts of LAW provide as follows :", "“ The execution of the NORP arrest warrant by the executing judicial authority may , by the law of the executing member ORG , be subject to the following conditions :", "...", "NORP if the offence on the basis of which the NORP arrest warrant has been issued is punishable by custodial life sentence or life - time detention order , the execution of the said arrest warrant may be subject to the condition that the issuing member ORG has provisions in its legal system for a review of the penalty or measure imposed , on request or at DATE , or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing member ORG , aiming at a non - execution of such penalty or measure ; ... ”", "The relevant part of LAW , pertaining to applicable penalties , provides as follows :", "“ CARDINAL . Subject to Article CARDINAL , the ORG may impose one of the following penalties on a person convicted of a crime referred to in LAW :", "( a ) Imprisonment for a specified number of DATE , which may not exceed a maximum of DATE ; or", "( b ) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person .", "... ”", "DATE . Article CARDINAL , concerning the ORG by ORG on the reduction of sentences , provides as follows :", "“ CARDINAL . The ORG of enforcement shall not release the person before expiry of the sentence pronounced by the ORG .", "The ORG alone shall have the right to decide any reduction of sentence , and shall rule on the matter after having heard the person .", "When the person has served CARDINAL of the sentence , or DATE in the case of life imprisonment , the ORG shall review the sentence to determine whether it should be reduced . Such a review shall not be conducted before that time .", "NORP In its review under § CARDINAL , the ORG may reduce the sentence if it finds that CARDINAL or more of the following factors are present :", "( a ) The early and continuing willingness of the person to cooperate with the ORG in its investigations and prosecutions ;", "( b ) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the ORG in other cases , and in particular providing assistance in locating assets subject to orders of fine , forfeiture or reparation which may be used for the benefit of victims ; or", "( c ) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence , as provided in the Rules of Procedure and Evidence .", "ORG If the Court determines in its initial review under LAW that it is not appropriate to reduce the sentence , it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence . ”" ]

[ "7" ]

[]

[]

[ "14", "3", "5", "7" ]

[ "5-1" ]

[]

[ "NORP The applicant , Mr GPE , is a NORP national , who was born in DATE and lives in GPE ORG .", "The Government of GPE ( “ the Government ” ) were represented by their Agent , Ms PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant was charged , indicted and tried for ill - treatment and rape ( CARDINAL and CARDINAL of LAW ) . The case was remitted to ORG súd ) , as the court of first instance , after its judgment ( rozsudok ) convicting the applicant had been quashed by ORG ( Krajský súd ) following an appeal by the applicant ( odvolanie ) .", "The current state and outcome ( if any ) of the proceedings is unknown .", "NORP In the course of his trial the applicant was remanded in custody and the term of his detention was repeatedly extended . The relevant part of the requests , appeals and decisions is described below .", "The requests for release of DATE and DATE were dismissed by ORG on DATE and , following an interlocutory appeal ( sťažnosť ) by the applicant , by ORG on DATE , the final decision being served on the applicant on DATE . The proceedings leading up to the latter decision were found by ORG ( Ústavný súd ) on DATE to have been short of the “ speediness ” requirement under LAW . Accordingly , ORG found a violation of that provision and awarded the applicant the equivalent of MONEY ( ORG ) in just satisfaction .", "In the same judgment ( nález ) ORG found that the procedure leading up to a decision of ORG ( Najvyšší súd ) of DATE to extend the applicant ’s detention until DATE had equally been incompatible with the applicant ’s rights under LAW . A separate violation of that provision was found and , in that respect , the applicant was awarded the equivalent of some LAW by way of just satisfaction .", "The request for release of DATE was dismissed on DATE and , following an interlocutory appeal by the applicant , also on DATE .", "On DATE the applicant again requested release . He relied on different grounds from those submitted in his previous request , which at that time had not yet been determined . In particular , the applicant argued that in the proceedings leading up to the ORG decision of DATE ( see paragraph CARDINAL above ) on the last extension of his detention , he had been deprived of access to the case file and his observations had not been taken into account . This request has never been determined , which was found by ORG to be in breach of the applicant ’s rights under LAW ( see paragraphs CARDINAL et seq . below ) .", "A further request for extension of the applicant ’s detention was dismissed on DATE , which is why the applicant was released , on DATE . In that decision , ORG observed , inter alia , that repeated requests for release and challenges for bias were the lawful right of the applicant and that , although they had undoubtedly had an impact on the length of the proceedings , they were no excuse in themselves for unjustified delays in the proceedings .", "In the course of the proceedings , the applicant sought the withdrawal of individual judges as well as the entire bench of ORG and ORG , on the grounds of bias . These challenges had the following outcomes :", "- A challenge concerning an assessor in the ORG chamber dealing with the applicant ’s case was dismissed as unfounded on DATE and , upon an interlocutory appeal by the applicant , also on DATE .", "- Further challenges were lodged on DATE , against all the judges of ORG and the presiding judge of ORG chamber dealing with the applicant ’s case . Their outcomes are unknown .", "On DATE and CARDINAL DATE the applicant introduced and amended respectively a complaint under LAW no . PERSON . , as amended ) with ORG , contending that the procedure in respect of his request for release of DATE ( see paragraph CARDINAL above ) had been contrary to his rights under LAW .", "NORP On DATE and DATE , respectively , the complaint was declared admissible and ORG found a violation of the applicant ’s rights under the provision invoked .", "ORG acknowledged that the applicant ’s request for release of DATE was based on grounds other than those in his request of DATE . The applicant was thus not precluded by law from making the second request before the final determination of the first one . Nevertheless , it had to be taken into account that the grounds underlying the second request must have already been known to the applicant at the time of the first request .", "The Constitutional Court further observed that , at the relevant time , ORG had to deal with a number of matters concerning the applicant ’s detention , including a request for its extension . However , in view of ORG , it had been for ORG to deal first with the applicant ’s request for release and only then with the other matters , and not , as ORG had done , the other way round .", "ORG considered that the applicant ’s procedural actions , and especially their accumulation at the relevant time , had been obstructionist in nature and that , with the term of the applicant ’s detention nearing its end , as authorised at that time in the decision of DATE ( see paragraph CARDINAL above ) , the applicant ’s intention in taking those actions had been to create a time constraint for the courts . However , this had had no impact on the substantive conclusion , but was to be taken into account in connection with the applicant ’s compensation claim . It was precisely for this reason that ORG concluded that the finding of a violation of the applicant ’s right was sufficient satisfaction for him . In addition , the applicant was awarded legal costs .", "The relevant part of Article CARDINAL reads as follows :", "“ ...", "Everyone shall have the right to compensation for damage caused by an unlawful decision of a court , other ORG body or a body of public administration , or by wrongful official action .", "Conditions and details ... shall be provided for by an Act of ORG . ”", "Article CARDINAL :", "“ CARDINAL . ORG shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .", "If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash that decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order that authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .", "In its decision on a complaint ORG may award appropriate financial compensation to a person whose rights under paragraph CARDINAL have been violated .", "Liability for damage or other loss in respect of a person who has violated rights or freedoms as referred to in paragraph CARDINAL shall not be affected by a ORG decision . ”", "LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) governs the organisation of ORG , the procedure before it and the status of its judges .", "An individual complaint under LAW is made subject to the rule of exhaustion of ordinary remedies , which is formulated in the relevant part of section CARDINAL(CARDINAL ) and ( CARDINAL ) as follows :", "“ CARDINAL . ORG ] [ individual ] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means , which a statute effectively provides to [ the complainant ] with a view to protecting [ the complainant ’s ] fundamental rights or freedoms , and which the complainant is entitled to use under special statute .", "The Constitutional Court shall not declare ORG ] [ individual ] complaint inadmissible even if the condition under paragraph CARDINAL has not been fulfilled , if the complainant establishes that [ the complainant ] has not fulfilled this condition for reasons worthy of particular consideration . ”", "Under its section CARDINAL ) , when dealing with individual complaints , in the event of a finding of a violation of a fundamental rights or freedoms :", "“ ORG may also grant appropriate financial compensation to a person whose fundamental right or freedom has been violated . ”", "Section CARDINAL(CARDINAL ) provides that :", "“ If ORG quashes a final and binding ( právoplatné ) decision , measure or act and remits the matter for further proceedings , the person who issued the decision , decided on the measure or carried out the act is liable to examine and determine the matter anew . In such proceedings or a procedure [ he ] is bound by the legal view of ORG . ”", "In connection with the present application , as well as CARDINAL other individual applications under the Convention of a similar kind , ORG produced a report .", "The report is dated DATE and concerns specifically the existence of an enforceable right to compensation , as required by LAW , in respect of detention in contravention of LAW and the Constitutional Court ’s practice in awarding appropriate financial compensation .", "The report and case - law references contained therein can be summarised as follows .", "Awarding appropriate financial compensation under LAW is an optional remedy in respect of a violation by a public authority of fundamental rights and freedoms of individuals and legal entities which has been found by ORG . The purpose of appropriate financial compensation is to complete the protection of the fundamental right violated in instances where it has been established that the violation occurred in such a way as to call for a level of protection higher than the mere finding of a violation or , as the case may be , an order by ORG that a case be dealt with without a violation of the fundamental right in question ( cases nos . PERSON CARDINAL/CARDINAL and PERSON CARDINAL/CARDINAL ) .", "The question of an award of appropriate financial compensation arises in particular where it is not possible to remedy the violation of the right or freedom by quashing the impugned decision or measure or by restoring the status quo ante ( case no . I ÚS CARDINAL/CARDINAL ) .", "The purpose of appropriate financial compensation is to reduce the loss felt as a result of the violation of the fundamental right ; the Constitutional Court determining the award of compensation on an equitable basis and taking into account the circumstances of the individual cases concerned ( mutatis mutandis , case no . III ÚS CARDINAL/CARDINAL ) .", "As regards the system of remedies in respect of detention in violation of LAW , by virtue of LAW , the liability of a person who has violated rights or freedoms as referred to in paragraph CARDINAL of that Article for damage or other loss is not to be affected by ORG decision , including on appropriate financial compensation . This provision is of particular relevance in correlation with the right to compensation for damage ( including nonpecuniary damage ) caused by a public authority under LAW .", "The provision of LAW , which allows for an award of appropriate financial compensation , is a special and autonomous remedy , which is independent of LAW . It does not constitute a lex specialis and , therefore , an award or non - award of appropriate financial compensation under LAW does not preclude a claim for compensation for pecuniary or non - pecuniary damage under sections CARDINAL , DATE and CARDINAL of LAW .", "LAW ( Law no . CARDINAL/CARDINAL ) was enacted on DATE and became operative on DATE . It provides for the liability of the ORG for damage which has been caused by , inter alia , unlawful arrest , detention ( zadržanie ) or other deprivation of liberty ( section ORG ) ) ; decisions concerning remand in custody ( väzba ) ( section CARDINAL ) ) ; and wrongful official action ( section CARDINAL ) ) .", "Pursuant to section CARDINAL , where a decision on arrest , detention or any other deprivation of liberty has been quashed as being unlawful or where there has been wrongful official action in that context , a person affected by it is entitled to compensation for damage .", "The right to compensation for damage caused by a decision concerning detention on remand is vested in the person who has been detained , provided that any criminal proceedings against him or her have been dropped ( section CARDINAL(CARDINAL)(a ) ) , or he or she has been acquitted ( section CARDINAL ) ) , or the matter has been referred to another authority ( section CARDINAL ) ) .", "NORP However , no such right arises when the person concerned himself or herself has given cause to be remanded in custody ( section CARDINAL(CARDINAL)(a ) ) .", "Section CARDINAL , which deals with compensation for damage caused by wrongful official action , provides :", "“ CARDINAL . The ORG is liable for damage caused by wrongful official action . Wrongful official action includes a public authority ’s failure to take action or issue a decision within the statutory time - limit , general inactivity in the exercise of public authority , unjustified delays in proceedings or other unlawful interference with rights and legally recognised interests of individuals and legal entities .", "The right to compensation for damage caused by wrongful official conduct is vested in the person who sustained the damage . ”", "Section CARDINAL defines the manner and extent of compensation for damage . Its relevant part provides :", "“ CARDINAL . Damage and lost profit shall be compensated for , unless special legislation provides otherwise .", "In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct , monetary compensation shall also be awarded for non - pecuniary damage , if it is not possible to compensate for it otherwise . ”", "Under section CARDINAL(CARDINAL ) , unless provided for otherwise by special legislation , disputes concerning matters regulated by LAW are to be decided upon by the courts .", "In a judgment of CARDINAL DATE ( in case no . CARDINAL CARDINAL/CARDINAL ) ORG granted an action for damages by CARDINAL individuals against the ORG under LAW and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal .", "On DATE the Banská Bystrica Regional Court upheld the judgment following the defendant ’s appeal .", "On DATE ORG allowed an appeal ( case no . MONEY ) in an action by an individual against the ORG under LAW for damages and awarded him a sum of money in compensation for non - pecuniary damage caused by his remand in custody in the context of a criminal trial that had ended with his acquittal .", "In a judgment of CARDINAL DATE ( case no . CARDINALC CARDINAL/CARDINAL ) the GPE I ORG allowed an action for damages by an individual against the ORG under LAW and awarded the claimant a sum of money in compensation for non - pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial .", "The impugned wrongful official action concerned extension of the claimant ’s detention pending trial .", "The action was preceded by a constitutional judgment of DATE ( case no . I. ÚS CARDINAL/CARDINAL ) in which ORG found a violation of the claimant ’s rights under LAW and CARDINAL in connection with the same facts .", "However , ORG did not award the claimant damages , as he had made no claim for damages ." ]

[]

[]

[]

[]

[]

[]

[ "Early in the morning of CARDINAL DATE law - enforcement agencies in the town of GPE , in GPE , were attacked by a number of heavily armed persons , who appear to have been local insurgents . The agencies included ORG of ORG , ORG of ORG of ORG , various district departments of ORG , ORG of ORG , various checkpoints of ORG , ORG of ORG , ORG of ORG , the office of ORG of ORG and a few privately owned weapons shops . According to the Government , there were CARDINAL participants in the attack .", "The ensuing fight between the governmental forces and the insurgents lasted until CARDINAL DATE .", "The applicants submitted that they were relatives of participants in the attack who died on CARDINAL and DATE or shortly afterwards ( see the annex listing the applicants’ family connections to the deceased persons ) .", "The Government did not dispute this claim , with the exception of DATE applicant , PERSON , who , in their view , was not in any way related to the deceased Mr PERSON GPE .", "According to the nineteenth applicant ’s initial statement , the deceased Mr PERSON GPE was her husband . She later changed this submission , stating that they were not officially married but had lived together since DATE . At the time of the events in DATE she was DATE pregnant . The nineteenth applicant has submitted a copy of a birth certificate issued on DATE in the name of ORG , born on DATE . The certificate names Mr PERSON GPE as the girl ’s father and the nineteenth applicant as her mother .", "According to the information initially provided by the Government , on CARDINAL and DATE their forces successfully repelled the attack and killed CARDINAL local insurgents . The Government did not specify the names of those killed .", "The Government also stated that on DATE they arrested Mr PERSON ( one of the QUANTITY nephews of the fiftieth applicant ) , who had gunshot wounds to the head and chest . He died in prison on DATE .", "On DATE Mr PERSON GPE ( CARDINAL of the seventeenth applicant ’s sons and a participant in the attack of CARDINAL DATE ) fired shots at police officers manning a local checkpoint and was killed when the officers returned fire .", "In their observations on the admissibility of the case , the ORG stated that the authorities had killed a total of CARDINAL insurgents in the anti - terrorist operations mounted in response to the attack of CARDINAL DATE .", "In essence , they acknowledged that all of the deceased referred to by the applicants were among those killed by the authorities .", "It appears that on DATE the authorities instituted criminal proceedings no . CARDINAL - CARDINAL - CARDINAL in connection with the attack in GPE .", "In the course of the investigation it was established that DATE a group of individuals , including PERSON , ORG . PERSON , PERSON , PERSON , PERSON and ORG , had formed a terrorist group . It was this group that organised the attack . CARDINAL law - enforcement officers and QUANTITY civilians were killed , whilst CARDINAL law - enforcement officers and CARDINAL civilians were injured . Massive damage was done to property .", "The applicants did not have any procedural status in the criminal proceedings in case no . CARDINAL - CARDINAL - CARDINAL .", "NORP Immediately following the attack , on CARDINAL , DATE , DATE and DATE an unspecified number of persons ( including some of the applicants ) signed collective petitions requesting various officials , including the prosecutors , to return the bodies for burial .", "DATE and until DATE the applicants received replies from the prosecution and other authorities informing them that they would receive definite answers once the investigation into the events had been completed .", "Attempts by some of the applicants to challenge these replies in the domestic courts were unsuccessful , as they were rejected as premature both at first instance and on appeal .", "On DATE the investigation authority terminated the criminal proceedings in respect of the CARDINAL deceased insurgents on account of their deaths . An individual decision had been taken in respect of each of them , describing the degree and character of their individual involvement and concluding that these persons had taken part in the attack and died as a result of the ensuing fight . It appears that the deceased referred to by the applicants were among those concerned by this decision .", "The Prosecutor General ’s Office notified the applicants of the above decisions on DATE , but no copies of the decisions in question were attached to the notifications .", "Some of the applicants applied to the domestic courts in connection with the authorities’ failure to provide them with copies of the decisions of CARDINAL - DATE . As a result of the proceedings , most of these applicants were furnished with a copy of the relevant decision . However , they were refused standing to take part in the criminal proceedings against the deceased as their official representatives or to have the deceased ’s personal belongings returned to them .", "In the GPE proceedings the ORG submitted copies of the decisions of CARDINAL - DATE in respect of each of the applicants’ relatives .", "According to the ORG , CARDINAL corpses of the presumed terrorists were cremated on DATE . According to the applicants’ submissions , it appears that they first learned of the cremations from the Government ’s observations in the present case .", "According to the ORG , the cremations took place pursuant to a decision not to return the bodies of the deceased to their families , dated DATE . In contrast to the individual decisions of CARDINAL - DATE , the decision of CARDINAL DATE referred to the deceased persons collectively . The decision stated , in particular :", "“ ... the head of investigation group ... [ official S. ] , having examined the materials in case file no . CARDINAL - CARDINAL - CARDINAL , established : ... [ that ] in the course of the counter - terrorist special operation aimed at tackling the attack , CARDINAL terrorists were eliminated , namely :", "[ The decision names among the deceased all of the persons referred to by the applicants , see the list in the annex . ]", "At present all forensic expert examinations , including molecular genetic examinations , involving ... the corpses of the deceased terrorists , have been finalised and their identities have been established by way of proper procedure .", "By decisions of CARDINAL - CARDINAL DATE the criminal proceedings in respect of these CARDINAL persons , who had committed ... the attack on various sites and law - enforcement agents of the town of GPE ... were discontinued on account of their deaths , under LAW part CARDINAL subpart CARDINAL and LAW part CARDINAL subpart CARDINAL of LAW .", "Pursuant to section CARDINAL(CARDINAL ) of ORG Law no . PERSON ) : “ persons against whom a criminal investigation concerning their terrorist activities has been closed on account of their death following interception of the said terrorist act shall be interred in accordance with the procedure established by ORG of GPE . Their bodies shall not be handed over for burial and the place of their burial shall not be disclosed . ”", "Pursuant to part CARDINAL of Decree no . CARDINAL , “ On interment of persons whose death was caused by the interception of terrorist acts carried out by them ” , approved by ORG of GPE on DATE , “ the interment of [ these ] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements , set up by organs of the executive branch of the subjects of GPE or by organs of local government ... ”", "[ In view of the above , official PERSON decided to : ]", "bury the bodies of the CARDINAL terrorists ... ;", "forward the decision to the President of GPE for execution ;", "inform [ his superiors ] of this decision ” .", "The Government alleged that the authorities had notified the applicants of the decision of CARDINAL DATE , but acknowledged that no copy of that decision had been provided to them .", "It appears that on several occasions ORG informed the applicants , in substance , of the refusal to return the bodies . It does not appear that the applicants were furnished with a copy of the decision of CARDINAL DATE .", "The applicants submitted that they had first obtained a copy of the decision of DATE in DATE , along with the Government ’s observations on the admissibility of the case . They also indicated that they had learned about the cremation of the corpses of their deceased relatives in DATE ( see paragraph CARDINAL above ) .", "NORP The applicants’ initial attempts to obtain judicial review of the decisions of CARDINAL - DATE and CARDINAL DATE were unsuccessful , as the courts refused to examine their arguments .", "Some of the applicants contested the legislation governing the interment of terrorists before ORG . Their initial complaints were rejected as premature . Eventually , the complaints of the thirteenth and CARDINAL applicants were accepted for examination .", "On DATE the ORG delivered a judgment ( no . CARDINAL ) in which , in essence , it rejected their complaints alleging that section CARDINAL(CARDINAL ) of the Interment and Burial Act and Decree no . CARDINAL of the Government of GPE of DATE were unconstitutional . The ruling stated , in particular , that the impugned legal provisions were , in the circumstances , necessary and justified . The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question :", "“ ... At the same time , the interest in fighting terrorism , in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts , coupled with the risk of mass disorder , clashes between different ethnic groups and aggression by DATE those involved in terrorist activity against the population at large and law - enforcement officials , and lastly the threat to human life and limb , may , in a given historical context , justify the establishment of a particular legal regime , such as that provided for by section CARDINAL(CARDINAL ) of LAW , governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph LAW CARDINAL ( CARDINAL ) of ORG of ORG on combating terrorism through culture , dated DATE , in which it was stressed that extremist interpretations of elements of a particular culture or religion , such as heroic martyrdom , self - sacrifice , apocalypse or holy war , as well as secular ideologies ( nationalist or revolutionary ) could also be used for the justification of terrorist acts .", "Action to minimise the informational and psychological impact of the terrorist act on the population , including the weakening of its propaganda effect , is one of the means necessary to protect public security and the morals , health , rights and legal interests of citizens . It therefore pursues exactly those aims for which LAW and international legal instruments permit restrictions on the relevant rights and freedoms .", "The burial of those who have taken part in a terrorist act , in close proximity to the graves of the victims of their acts , and the observance of rites of burial and remembrance with the paying of respects , as a symbolic act of worship , serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question , creating the preconditions for increasing inter - ethnic and religious tension .", "In the conditions which have arisen in GPE as a result of the commission of a series of terrorist acts which produced numerous human victims , resulted in widespread negative social reaction and had a major impact on the collective consciousness , the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security , including incitement to hatred and incitement to engage in acts of vandalism , violence , mass disorder and clashes which may produce further victims . Meanwhile , the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity .", "In such circumstances , the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part . ... ”", "The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards , such as effective judicial review , were in place to protect individuals from arbitrariness . The court noted that ORG CARDINAL - CARDINAL of the Code of Criminal Procedure provided for such review ( see paragraph CARDINAL below ) .", "In sum , ORG upheld the impugned provisions as being in conformity with the LAW but at the same time interpreted them as requiring that the authorities refrain from burying bodies unless a court had confirmed the competent authority ’s decision . It reasoned as follows :", "“ ... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue , on account of the deaths of the suspects , a criminal case against or prosecution of participants in a terrorist act . Accordingly , they also presuppose an obligation on the court ’s part to examine the substance of the complaint , that is , to verify the lawfulness and well - foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act , and to establish the absence of grounds for rehabilitating [ the suspects ] and discontinuing the criminal case . They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures . Until the entry into force of the court judgment the deceased ’s remains can not be buried ; the relevant ORG bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition , in particular through the burial of the remains in the ground ... or by [ cremation ] , individually , if possible , and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... and of the time , location and cause of death ... ”", "Judge PERSON issued a separate opinion in which he agreed that the impugned provisions were in conformity with the LAW but held a different view as to how they should be interpreted . The opinion stated as follows :", "“ ... if the relevant law - enforcement agencies find , as a result of a preliminary investigation , that a terrorist act has been committed and that a given person was involved , but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act , and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health , morals , rights , lawful interests and safety of others , they are entitled to take a decision refusing to hand over the body and applying special arrangements for burial .", "At the same time , in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him , the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased ’s identity , the time and place of death , the cause of death , the place of burial and the data necessary for the proper identification of the grave ( a given location and number ) . The burial must take place with the participation of the relatives , in accordance with custom and tradition and with humanitarian respect for the dead . The administrative authorities of a ORG governed by the rule of law must respect the cultural values of a multi - ethnic society , transmitted from generation to generation . ... ”", "Judge PERSON issued a dissenting opinion in which he described the legislation in question as incompatible with the LAW . In particular , he noted :", "“ ... The impugned norms banning the return of the deceased ’s bodies to their relatives and providing for their anonymous burial are , in our view , absolutely immoral and reflect the most uncivilised , barbaric and base views of previous generations ...", "The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law . This right is clearly self - evident and stems from human nature as , perhaps , no other natural right . Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them , to have an opportunity to perform one ’s moral duty and display one ’s human qualities , to bid farewell , to grieve , mourn and commemorate the deceased , however he may be regarded by society and the state , to have the right to a grave , which in all civilisations represents a sacred value and the symbol of memory . ... ”", "After ORG judgment of DATE the domestic courts apparently changed their approach and agreed to review the formal lawfulness of the decisions of CARDINAL - DATE and DATE .", "CARDINAL applicants ( nos . CARDINAL , DATE and DATE ) were able to obtain a copy of the decisions of CARDINAL - DATE concerning their deceased relatives , but did not pursue any proceedings in this connection or in connection with the decision of CARDINAL DATE .", "CARDINAL applicants ( nos . CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE ) did not claim or receive a copy of the decisions of CARDINAL - DATE and did not institute proceedings in connection with any of the decisions in this case .", "The remaining applicants , with the exception of CARDINAL ( nos . CARDINAL , DATE and CARDINAL ) obtained a copy of the decisions of CARDINAL - DATE concerning their relatives and brought court proceedings to contest them .", "CARDINAL applicants ( nos . CARDINAL , DATE , DATE , DATE , DATE , CARDINAL and DATE ; see table CARDINAL in the annex ) , after a few sets of proceedings , obtained a favourable judgment , issued at final instance by ORG , which quashed both the decisions of DATE and the decision of CARDINAL DATE as unlawful . In respect of the decisions of CARDINAL - DATE , the court noted that these decisions had failed to take account of the recent amendments to LAW ( see paragraph CARDINAL below ) and remitted the case to the investigating authority for fresh examination . The decision of CARDINAL DATE was quashed in so far as it relied on the decisions of CARDINAL DATE and also because it had not been taken by a competent official . According to the applicants , these judgments remained without enforcement .", "It appears that the domestic courts subsequently changed their position in connection with the requirement to take account of the amendments to LAW and began quashing the decisions by way of supervisory review ( see paragraph CARDINAL below ) .", "CARDINAL applicants ( nos . CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE ; see table CARDINAL in the annex ) , after several sets of proceedings , obtained a favourable judgment , issued at final instance by ORG . These judgments concerned only the decisions of CARDINAL - DATE , and quashed them as unlawful . The court noted that the decisions failed to take account of the recent amendments to LAW and remitted the case to the investigating authority for fresh examination . These applicants did not apparently bring separate proceedings in respect of the decision of CARDINAL DATE . According to the applicants , the judgments remained without enforcement .", "According to the information submitted by the Government in connection with the proceedings brought by the thirteenth applicant , a fresh examination of the case in the lower courts resulted in a final decision of DATE upholding the decision of CARDINAL - DATE in full .", "In the domestic proceedings CARDINAL applicants ( nos . CARDINAL , DATE and DATE ; see table CARDINAL in the annex ) were expressly denied a copy of the decisions of CARDINAL DATE concerning their deceased relatives and , as a result , the competent courts were unable to review the lawfulness of the decisions of CARDINAL - DATE and DATE . ORG specifically stated in their respective judgments that the investigating authority had unlawfully refused to furnish the applicants and the courts with a copy of the decisions of CARDINAL - DATE and to provide access to the relevant case - file materials in respect of these applicants’ deceased family members . In their submissions the respondent Government explained that the evidence collected by the investigation in respect of the deceased family members of the applicants in question had also been used in the criminal proceedings against the surviving participants in the attack , and that the refusal in question had been motivated by the need to preserve the integrity of these criminal proceedings .", "CARDINAL applicants ( nos . CARDINAL and DATE ; see table CARDINAL in the annex ) obtained a copy of the decisions of CARDINAL - DATE in respect of their deceased relatives and unsuccessfully contested them in court . ORG rejected their appeals and upheld the decisions as lawful . These applicants were subsequently successful in obtaining a favourable judgment from the same court , declaring the decision of CARDINAL DATE unlawful because it had not been taken by a competent official .", "The CARDINAL applicant , PERSON obtained a copy of the decisions of CARDINAL - DATE in respect of her brother PERSON and her husband Mr NORP PERSON and unsuccessfully contested them in court . By final judgments of CARDINAL DATE and DATE ORG rejected her appeals in respect of her brother and husband respectively . It does not appear that she brought any court proceedings in respect of the decision of DATE .", "The Government argued that the applicants could have obtained copies of the decisions of CARDINAL - CARDINAL DATE and relevant case - file documents whenever they wished .", "The CARDINAL applicant indicated that only some of the applicants had been provided with such access .", "According to the applicants who took part in the identification of the bodies , for DATE following the events of CARDINAL and DATE the corpses were kept in the town morgue and other locations , in wholly unsatisfactory conditions . In particular , the bodies gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of each other .", "On an unspecified date PERSON , apparently a relative of the thirtieth applicant , complained in writing that the bodies had been piled up and stored at street temperature , noting that some of the corpses were decomposing and giving off an intense putrid smell . On an unspecified date PERSON , the TIME applicant , stated that she had seen the bodies on DATE after the events in question and that some of them were decomposing and contained worms . Mr PERSON , the husband of DATE applicant , said that when he had taken part in the identification procedure on DATE , the bodies had been naked and piled on top of each other . Similar written observations were made by PERSON , the fifth applicant ’s husband , and PERSON , the first applicant .", "The applicants produced a video recording in support of their submissions , apparently filmed inside refrigerator wagons and confirming that the bodies were naked and that some of them were piled on top of one another .", "In response to an enquiry by the ORG dated DATE , the Government submitted that the bodies of those who had attacked the town had been kept at “ premises specifically designed for the long - term storage of corpses and containing all the necessary equipment ” .", "NORP In response to a letter from the applicants requesting an explanation for the appalling storage conditions , ORG stated in a letter of DATE that until a procedural decision in respect of the corpses had been taken they had been kept in specially equipped rooms , in refrigerated chambers set to the appropriate temperature . The authorities did not disclose the locality where the bodies were stored .", "In their observations on admissibility of CARDINAL DATE , the ORG explained that following the events the corpses had initially been sent to the GPE morgue . They had then been stripped and the clothes sent for forensic expert examination . Thereafter all the corpses had been placed in CARDINAL refrigerated wagons , equipped with all necessary storage facilities , and sent to the town of GPE - on - Don for genetic examination . The Government also acknowledged that immediately after the attack no facilities had been available to keep the bodies and that this was probably what had been filmed in the recording submitted by the applicants .", "There is no information in the ORG submissions which could confirm the participation of CARDINAL applicants , CARDINAL . CARDINAL , CARDINAL , DATE and DATE , in the relevant identification procedure .", "CARDINAL applicants ( nos . CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE and DATE ) did not participate in the identification procedure in person because the relevant corpses were identified by someone else .", "The remaining CARDINAL applicants ( nos . CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE ) submitted hand - written statements confirming their personal participation in the identification procedure ( see table CARDINAL in the annex ) .", "According to the applicants , they had access to the bodies both in the GPE town morgue and in CARDINAL refrigerator wagons parked on a plot of land belonging to ORG . Provision of access to the bodies was random , as not everyone who wanted to take part in the identification process was admitted . In some cases the provision of access was not properly documented .", "Since the provision of access was limited , the relevant facilities were usually surrounded by crowds of relatives of the deceased .", "The Government partly disputed the applicants’ submissions . They referred to the protocols of identification , confirming that all CARDINAL applicants listed in paragraph CARDINAL and the QUANTITY applicant , PERSON , had taken part in the identification . They contested the personal participation in the identification procedure of the ninth ( Mrs PERSON ) , the seventeenth to the twentieth applicants ( Mr Betal Muradinovich Kerefov , Mr PERSON , PERSON and PERSON ) and the DATE applicant ( Mr Karalbi PERSON ) . They confirmed the participation of the remaining applicants listed in paragraph CARDINAL above .", "In the Government ’s submissions all corpses had been initially held in the GPE morgue . CARDINAL the applicants examined the corpses and the clothing . From DATE the bodies were placed in CARDINAL refrigerator wagons . On DATE the wagons were moved to the town of GPE - on - Don for molecular genetic examinations and on DATE all of the bodies were cremated . CARDINAL and DATE the person in charge of the identification procedure was the head of the investigation group , investigator PERSON From DATE he was replaced by investigator S.", "According to the ORG ’s most recent submissions , the overall number of human casualties as a result of the events of CARDINAL DATE was QUANTITY civilians , QUANTITY police and law - enforcement officers and CARDINAL participants in the attack .", "The Interment and Burial Act ( no . CARDINAL-FZ , dated DATE ) contains the following provisions :", "“ The present ORG defines interment as the ritual actions of burying a person ’s body ( or its remains ) after his or her death in accordance with customs and traditions which are not contrary to sanitary or other requirements . The interment may be carried out by way of placing the body ( or its remains ) in the earth ( burial in a grave or in a vault ) , in fire ( cremation with subsequent burial of the urn containing the ashes ) , in water ( burial at sea ) . ... ”", "“ CARDINAL . The locations of interment are specially designated [ in accordance with relevant rules ] areas with ... cemeteries for burial of bodies ( remains ) of the dead , walls of sorrow for the storage of urns containing the deceased ’s ashes ... , crematoriums ... as well as other buildings ... designed for carrying out burials of the dead . ... ”", "“ CARDINAL . The statement of wishes of a person concerning the dignified treatment of his or her body after death ( the will of the deceased ) is a wish expressed in oral form in the presence of witnesses or in writing :", "about consent or lack of consent to undergo an autopsy ;", "about consent or lack of consent to have parts or tissues of the body removed ;", "to be buried in a specific location , in accordance with a specific set of customs and traditions , next to specific people who died previously ;", "to be cremated ;", "entrusting the fulfilment of these wishes to a specific person .", "Actions in respect of the dignified treatment of the body of a dead person should be carried out in accordance with [ his / her ] wishes , unless there are circumstances that render impossible the fulfilment thereof or if the [ national ] legislation provides for different rules .", "Where a deceased made no statement of wishes , the right to authorise the actions specified in part CARDINAL of this section shall belong to a spouse , close family members ( children , parents , adopted children and adoptive parents , brothers and sisters , grandchildren and grandparents ) , other relatives or the legal representative of the dead , and in the absence of such persons , other persons who have assumed responsibility for burying the dead person . ”", "“ The executors of a deceased person ’s statement of wishes shall be persons as nominated in the statement , if they agree to act accordingly . Where there is no specific indication regarding the executors of the statement of wishes or if the nominated persons do not agree to act accordingly , the directions in the statement shall be executed by the surviving spouse , close family members or other relatives or legal representatives of the deceased . In the event of a reasoned refusal by the nominated persons to execute the directions of the deceased ’s statement of wishes , he or she may be buried by another person who has agreed to assume this obligation , or by a specialised funeral service . ”", "“ CARDINAL . On the territory of GPE every human being shall be guaranteed that after his or her death interment will be carried out regard being had to his or her wishes , with the provision for free of a plot of land for burial of a body ( remains ) or ashes in accordance with the present LAW ... ”", "“ A spouse , close family members , other relatives , legal representatives of a deceased person or another person who has assumed the obligation to bury the deceased , shall enjoy the following guarantees :", "( CARDINAL ) the issuance of documents necessary for interment of a deceased within DATE of the cause of death being established ; in cases where there were reasons to place the deceased in a mortuary for an autopsy , the delivery of the body of the deceased at the request of a spouse , close family members , other relatives , legal representative or another person who has assumed the obligation to bury the deceased can not be delayed for DATE from the time when the cause of death is established ; ... ”", "Section CARDINAL of NORP Federation Law no . CARDINAL ( the Suppression of Terrorism Act ) defines terrorism as follows :", "“ ... violence or the threat of its use against physical persons or organisations , and also destruction of ( or damage to ) or the threat of destruction of ( or damage to ) property and other material objects which creates a danger for people ’s lives , causes significant loss of property or entails other socially dangerous consequences , perpetrated with the aim of undermining public safety , intimidating the population or exerting pressure on ORG bodies to take decisions favourable to terrorists or to satisfy their unlawful property and/or other interests ; an attempt on the life of a ORG or public figure , committed with the aim of halting his or her ORG or other political activity or in revenge for such activity ; or an attack on a representative of a foreign ORG or an official of an international organisation who is under international protection , or on the official LOC or means of transport of persons under international protection , if this act is committed with the aim of provoking war or of straining international relations . ”", "Terrorist activity within the meaning of the Act encompasses :", "“ ( CARDINAL ) NORP organisation , planning , preparation and commission of a terrorist act ;", "( CARDINAL ) incitement to commit a terrorist act or violence against physical persons or organisations , or to destroy material objects for terrorist purposes ;", "( CARDINAL ) NORP organisation of an illegal armed formation , a criminal association ( criminal organisation ) or an organised group for the commission of a terrorist act , or participation therein ;", "( CARDINAL ) NORP recruitment , arming , training and deployment of terrorists ;", "( CARDINAL ) NORP intentional financing of a terrorist organisation or terrorist group or other assistance provided thereto . ”", "DATE . Section CARDINAL defines a terrorist act as :", "“ ... the direct commission of a crime of a terrorist nature in the form of an explosion , an act of arson , the use or threat of the use of nuclear explosive devices or of radioactive , chemical , biological , explosive , toxic , or strong - acting poisonous substances ; destruction of , damage to or seizure of means of transport or of other objects ; attempts on the life of ORG or public figures or of representatives of national , ethnic , religious or other population groups ; seizure of hostages or abduction of persons ; causing of danger to the life , health or property of an indefinite number of persons by creating the conditions for accidents or disasters of a technogenic character or a real threat to cause such danger ; the spreading of threats in any form or by any means ; other actions that endanger people ’s lives , cause significant loss of property or entail other socially dangerous consequences . ”", "In the same section a terrorist is defined as :", "“ ... a person who takes part in carrying out terrorist activity in any form . ”", "On DATE a terrorist attack took place in ORG in the city of GPE , resulting in a hostage incident which produced heavy casualties , including the death of CARDINAL hostages ( see GPE and Others v. GPE , nos . PERSON and PERSON , § § PERCENT , ORG DATE ( extracts ) ) .", "Shortly after the attack , on DATE , GPE enacted changes to LAW by adding section CARDINAL(CARDINAL ) , which reads as follows :", "“ [ The ] interment of terrorists who die as a result of the interception of a terrorist act shall be carried out in accordance with the procedure established by the Government of GPE . Their bodies shall not be handed over for burial and the place of their burial shall remain undisclosed . ”", "On the same date GPE also enacted changes ( FZ - no . CARDINAL ) to the Interment and Burial Act by adding section CARDINAL ) , which states :", "“ Persons against whom a criminal investigation concerning their terrorist activities has been closed on account of their death following interception of the said terrorist act shall be interred in accordance with the procedure established by the Government of GPE . Their bodies shall not be handed over for burial and the place of their burial shall not be disclosed . ”", "Decree no . CARDINAL of the Government of GPE , adopted in accordance with section CARDINAL(CARDINAL ) of LAW , defines the procedure for the interment of persons whose death was caused by the interception of terrorist acts conducted by them :", "“ ... CARDINAL . Interment of [ these ] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements , set up by organs of the executive branch of the subjects of GPE or by organs of local government ...", "Services provided by the specialist funeral agency in connection with the interment of [ these ] persons shall include : processing of documents necessary for interment ; clothing of the body ; provision of a grave ; transfer of the body ( remains ) to the place of burial ( cremation ) ; burial .", "The transfer of the body ( remains ) to the place of burial ( cremation ) by rail or air shall be carried out on the basis of a transfer permit issued under an established procedure .", "The place of burial shall be determined with reference to the limitations laid down by the Interment and Burial Act .", "For the purposes of the burial the official conducting the preliminary investigation shall send the necessary documents to the specialist funeral agency , including a copy of the decision to close the criminal case and the criminal investigation with regard to [ these ] persons ; he or she shall also send a statement confirming the death to the civilian registry office in the person ’s last place of permanent residence .", "The relatives of the persons [ concerned ] shall be notified by the official conducting the preliminary investigation of the location of the registry office from which they can obtain a death certificate .", "At the discretion of the official conducting the preliminary investigation , the relatives of [ these ] persons may be provided with copies of the medical documents concerning the death , produced by a medical organisation , and the report on the autopsy ( if conducted ) ; personal belongings shall also be returned if they are not subject to confiscation .", "NORP The specialist funeral agency shall produce a report on the completed burial , which shall be sent to the official conducting the preliminary investigation ; the document shall become part of the criminal case file . ”", "On DATE ORG of GPE examined a complaint lodged by CARDINAL individuals challenging the constitutionality of LAW part CARDINAL sub - part CARDINAL ( FAC for a decision refusing to institute or to discontinue criminal proceedings ) and LAW part CARDINAL ( Discontinuance of criminal proceedings in a court hearing ) of LAW . The court concluded that the above - mentioned statutory provisions were unconstitutional , in so far as they provided for the possibility of terminating a criminal case owing to the death of a suspect ( or an accused person ) without obtaining the consent of that person ’s close relatives . The court noted , in particular , as follows :", "“ ... respect for fundamental procedural guarantees of individual rights , including the presumption of innocence , must be secured also in resolving the question concerning the termination of a criminal case with reference to non - rehabilitating circumstances . In taking their decision to refuse the institution of a criminal case or to terminate the criminal case at the pre - trial stages of the criminal proceedings , the competent bodies should take it as a point of departure that persons in respect of whom the criminal proceedings have been discontinued [ who were not pronounced guilty of an offence ] can not be viewed as guilty – in the constitutional sense these persons can only be regarded as having been involved in criminal proceedings at the said stage owing to the relevant suspicions or accusations ...", "At the same time , by discontinuing a criminal case owing to the death of a suspect ( or an accused person ) [ the authority ] also stops the process of proving his or her guilt , but in so doing the accusation or suspicion is not lifted , quite the contrary : in reality [ the authority ] reaches a conclusion as to the commission of the criminal act by ... a specific person and the impossibility of criminal prosecution owing to the said person ’s death . By this logic , the person in question , without the adoption or entry into force of any verdict , is declared guilty , and this constitutes a breach by the ORG of its duty to secure the judicial protection of that person ’s honour , dignity and good name protected by [ various provisions of ] ... the LAW , and as regards the persons whose interests may be affected by this decision – it constitutes a breach of their right of access to a court ...", "... [ in other words , ] the termination of a criminal case with reference to nonrehabilitating circumstances in general is possible only if the rights of the participants in the criminal proceedings are respected , which means , in particular , that there is a need to secure the consent of the suspect ( or the accused person ) to take such a decision ] ...", "... If , however , the person in question objects to [ such a decision ] , he must be entitled to have the case against him proceed to the stage of its examination by the trial court ...", "[ The court , having analysed the applicable domestic provisions , concludes that ] LAW did not provide that [ the relatives of the deceased person in respect of whom the criminal case was discontinued ] had any rights which would allow them to protect the rights of their deceased relative who was formerly accused . Since the interested persons , and primarily the close relatives of the deceased , are not permitted to take part in the proceedings , the [ relevant ] procedural decisions ... are taken by an investigator or a court – without participation of the defence ...", "Such limitations do not have an objective or reasonable justification and entail a breach of [ the constitutional rights of the persons in question ] ...", "[ The court further decides that ] the protection of the rights and legal interests of the close relatives of the deceased person ... aimed at [ securing ] his or her rehabilitation should take place through the provision to them of the necessary legal status and the resulting legal rights within the framework of the criminal proceedings ...", "[ The court concludes that the rights provided for by LAW were insufficient to guarantee an adequate level of judicial protection to the interested persons ] ...", "[ Thus , in cases where ] the close relatives object to the discontinuance of the proceedings owing to the death of the formerly suspected or accused person , the competent investigative body or the court should proceed with the examination of the case . At the same time , the interested persons should enjoy the same rights as the deceased person [ himself or herself ] would have enjoyed ... ”", "Article CARDINAL ( “ Murder ” ) of LAW , as in force at the relevant time , provides :", "“ CARDINAL . Murder , that is the intentional infliction of death on another person , shall be punishable by deprivation of liberty for a term of DATE . ”", "DATE . Article CARDINAL ( “ Terrorism ” ) of LAW , as in force before the entry into force on DATE of ORG no . CARDINAL of DATE , provides :", "“ CARDINAL . Terrorism , that is the commission of an explosion , arson or other action , creating a danger for people ’s lives , or causing considerable pecuniary damage or other socially dangerous consequences , if such actions were committed with the aim of undermining public safety , threatening the population or influencing decision - making by the authorities , or the threat of committing such actions with the same aims , shall be punishable by deprivation of liberty for a term of DATE ... ”", "The same Federal Law of DATE renamed and amended LAW of LAW , which is now entitled “ NORP act ” and provides :", "“ CARDINAL . NORP The commission of an explosion , arson or other action , creating public fear and a danger for people ’s lives , causing considerable pecuniary damage or other grievous consequences , with the aim of exerting pressure on decision - making by the authorities or international organisations , or the threat of committing such actions with the same aims shall be punishable by deprivation of liberty for a term of DATE . ”", "DATE defines close relatives as spouses , parents , children , adoptive parents , adopted children , brothers and sisters , grandparents and grandchildren .", "Part CARDINAL of LAW provides :", "“ ... a court , a prosecutor and an investigator shall be obliged to inform a suspect , an accused , a victim , a civil claimant and other participants in criminal proceedings of their respective rights , duties and liability and to provide them with the possibility of enforcing such rights . ”", "Articles DATE of the Code of Criminal Procedure and LAW of LAW of GPE provide that incidents resulting in the death of a person are cases of public prosecution which are to be investigated and prosecuted irrespective of the will of the victim of the crime . In all circumstances displaying signs of the commission of a crime the relevant officials are to take the measures set out in LAW aimed at an investigation into the event and the identification of the person or persons responsible for committing the crime in question .", "Article CARDINAL of the Code describes the status of a victim in the criminal proceedings :", "“ The victim , his legal representative and ( or ) legal counsel shall have the right to take part in the criminal prosecution of the accused ... ”", "Article CARDINAL of the Code lists possible grounds for a decision refusing to institute a criminal case or discontinuing the proceedings :", "“ ( CARDINAL ) . A criminal case can not be instituted and an instituted criminal case should be discontinued on CARDINAL of the following grounds :", "...", "( CARDINAL ) the death of an accused or a suspect , except for cases where the continuation of the proceedings is necessary for rehabilitation of the deceased person . ... ”", "DATE Code also states :", "“ CARDINAL . Criminal prosecution in respect of a suspect or an accused shall be discontinued with reference to CARDINAL of the following grounds :", "( CARDINAL ) discontinuance of a criminal case with reference to [ CARDINAL of the grounds mentioned in part CARDINAL of Article CARDINAL , including sub - part CARDINAL ] ... ”", "Part DATE lists the situations in which it is necessary for the relevant official to obtain the consent of a suspect or an accused to discontinue criminal prosecution . There is no need to obtain anyone ’s consent in the event of that person ’s death .", "DATE of the Code defines the victim as a “ physical person who has sustained physical , pecuniary or non - pecuniary damage ” as a result of the criminal offence , the decision on recognising someone as a victim being taken by an investigator or a court . It further states that :", "“ ... ( CARDINAL ) The victim shall be entitled :", "( CARDINAL ) to submit evidence ;", "( CARDINAL ) to make challenges and motions ;", "...", "( CARDINAL) to have a representative ;", "( CARDINAL ) to take part , with leave from an [ investigator ] in investigative actions which take place at his or her request ... ;", "...", "( CARDINAL ) upon termination of the preliminary investigation , to study all of the materials of the criminal case ... ;", "( CARDINAL ) to receive copies of decisions instituting a criminal case , recognising him or her as a victim or refusing to do so , on discontinuance of a criminal case ... ;", "( CARDINAL ) to avail himself or herself of other rights set out in this LAW . ”", "Part CARDINAL of this provision states :", "“ In criminal cases concerning crimes which resulted in the death of a person , the rights of the victim as set out in the present provision shall be transferred to CARDINAL of his or her close relatives . ”", "DATE of the PERSON states :", "“ CARDINAL . A victim ... may be represented by counsel ...", "Personal participation in a criminal case by the victim ... shall not preclude him or her from enjoying the right to be represented [ by counsel in that criminal case ] . ”", "Article CARDINAL of the Code provides for the possibility of appeal against the decisions of various authorities , in accordance with the procedure set out in the Code and particularly in Articles CARDINAL - CARDINAL thereof :", "“ The actions ( or inactions ) and decisions of the body of inquiry , the inquiring officer , the investigator , the public prosecutor or the court shall be amenable to appeal in accordance with the procedure established in the present Code , by the participants in the criminal court proceedings and by other persons in so far as the procedural actions in question and the procedural decisions adopted affect their interests . ”", "“ CARDINAL . NORP The public prosecutor shall consider the complaint within DATE of the date of its receipt . In exceptional cases , where it is necessary to request that additional materials be supplied or other measures be taken for checking the complaint , it shall be admissible to consider it within a period of DATE ; the applicant shall be duly informed .", "Following consideration of the complaint , the public prosecutor shall take a decision allowing it in whole or in part or rejecting it .", "NORP The applicant shall be immediately notified of the decision taken on the complaint and of the further procedure for lodging an appeal against it .", "NORP In the cases stipulated by the present Code the inquiring officer , the investigator or the public prosecutor shall be entitled to lodge an appeal with a higher - ranking prosecutor against the actions ( inactions ) and decisions of the public prosecutor . ”", "“ CARDINAL . Decisions by the inquiring officer , the investigator and the public prosecutor concerning a refusal to institute a criminal case or the termination of the criminal case , and other decisions and actions ( or lack of action ) on their part which are liable to inflict damage on the constitutional rights and freedoms of the participants in the criminal court proceedings or interfere with ORG access to the administration of justice , may be appealed against before the district court at the place where the preliminary inquiry is conducted .", "NORP The complaint may be lodged with the court by the applicant or his or her defence counsel , legal representative or representative , either directly or through the inquiring officer , investigator or public prosecutor .", "The judge shall verify the legality and well - foundedness of the actions ( or lack of action ) and the decisions taken by the inquiring officer , the investigator and the public prosecutor , not DATE after the date of the lodging of the complaint , at a court session in the presence of the applicant and his or her defence counsel , legal representative or representative , if they are taking part in the criminal case , other persons whose interests are directly affected by the action ( or lack of action ) or by the decision against which the appeal has been lodged , and the public prosecutor . Failure to attend by persons who have been duly informed of the time of consideration of the complaint and have not insisted that they be present , shall not be seen as an obstacle to consideration of the complaint by the court . Complaints shall be considered by the court at a public hearing unless stipulated otherwise . ...", "At the start of the court session , the judge shall announce what complaint is being considered , introduce himself to the persons attending the court session and explain their rights and responsibilities . The applicant , if he is taking part in the court session , shall then adduce the grounds for the complaint , following which evidence shall be heard from other persons in attendance . The applicant shall have the right to respond .", "After considering the complaint , the judge shall adopt one of the following decisions :", "( CARDINAL ) a decision finding the action ( or lack of action ) or the decision of the corresponding official to be illegal or ill - founded and finding him or her liable to provide redress for the violation ;", "( CARDINAL ) a decision rejecting the complaint .", "Copies of the judge ’s decision shall be sent to the applicant and to the public prosecutor .", "The lodging of a complaint shall not suspend performance of the action and the decision appealed against unless the body of inquiry , the inquiring officer , the investigator , the public prosecutor or the judge deems it necessary . ”", "“ CARDINAL . Complaints and ORG appeals against judgments , rulings and resolutions of the courts of first instance and appeal courts , as well as complaints and ORG appeals against court decisions taken in the course of the pre - trial proceedings in the criminal case , shall be lodged in accordance with the arrangements laid down in ... [ other provisions of the Code ] .", "Complaints and ORG appeals against court decisions which have acquired legal force shall be lodged in accordance with the arrangements laid down by [ other provisions of the Code ] . ”", "Article CARDINAL of the Code establishes the arrangements governing appeals against decisions not to institute criminal proceedings :", "“ CARDINAL . If there are no grounds for the institution of criminal proceedings the public prosecutor , the investigator , the body of inquiry or the inquiring officer shall take a decision not to institute criminal proceedings . A decision not to institute criminal proceedings on the ground set out in point CARDINAL of the first paragraph of LAW shall be admissible only in respect of the individual concerned .", "NORP When taking the decision not to institute criminal proceedings after checking the available information about the crime based on the suspicion of its perpetration by the person or persons concerned , the public prosecutor , the investigator or the body of inquiry shall be obliged to consider the possibility of instituting criminal proceedings against the person who reported or spread false information about the crime on a charge of making deliberately false accusations .", "A decision not to institute criminal proceedings following verification of information concerning a crime that has been publicised in the mass media must be made public .", "A copy of the decision not to institute criminal proceedings shall be sent to the applicant and to the public prosecutor within TIME of the time the decision was given . In this case , the applicant shall be informed of his or her right to appeal against the decision and of the procedure for lodging an appeal .", "A decision not to institute criminal proceedings may be appealed against to the prosecutor or the court in accordance with the procedure laid down in ORG CARDINAL and CARDINAL of the present Code .", "If the prosecutor finds a decision not to open criminal proceedings to be unlawful or unfounded , he or she shall revoke the decision not to open the case and shall institute criminal proceedings in the manner established by the present article or return the materials for additional verification .", "If the judge finds the decision not to institute criminal proceedings to be unlawful or unfounded , he or she shall adopt the corresponding decision , forward it for execution to the public prosecutor and notify the applicant . ”", "By ORG no . CARDINAL of DATE “ On the practice of application by the courts of the legislation governing the participation of a victim in criminal proceedings ” ORG summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the old DATE Code of Criminal Procedure :", "“ ... CARDINAL . ... is recognised as a victim an individual who has sustained non - pecuniary , physical or pecuniary damage directly . The recognition of such an individual as the victim does not depend on his age , physical or psychological condition . ...", "Since ... in cases involving crimes which resulted in the death of a victim , the [ relevant ] rights [ are transferred ] to [ his or her ] close relatives , CARDINAL of whom , regard being had to the agreement between them , shall be recognised as the victim . If certain persons outside the circle of the close relatives of the deceased insist on being recognised as victims , they may also be recognised as such ... ”", "By ORG no . CARDINAL of DATE “ On the practice of application by the courts of the norms governing the participation of a victim in criminal proceedings ” , which replaced in full ORG no . CARDINAL of DATE , ORG summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the new CARDINAL Code of Criminal Procedure :", "“ ... CARDINAL . In accordance with the law , a victim , being a physical person who has suffered physical , pecuniary or non - pecuniary damage ... has in the criminal proceedings his or her own interests , for the protection of which he or she , as a participant in the criminal proceedings on the side of the prosecution , enjoys the rights of a party .", "A person who has suffered as a result of a criminal offence shall be recognised as a victim irrespective of his or her nationality , age , physical or psychological condition or other aspects of his or her personality , and irrespective of whether anyone has been identified as being involved in the commission of that offence .", "The courts should also take into account any damage inflicted on the victim by the offence , or by a criminally prohibited act committed in a state of insanity . ...", "In accordance with part CARDINAL of LAW a person who sustained damage [ from an offence ] shall acquire the rights and obligations set out in the legislation governing criminal procedure as of the time of adoption by a [ competent ] investigator ... or a court of the decision recognising that person as a victim . At the same time , it should be borne in mind that the legal status of that person as a victim is determined on the basis of his or her factual situation ... [ thus , this procedural decision does nothing but reflect the existing factual situation and does not determine it ] .", "The person in question can obtain recognition as a victim by making a relevant application ... The refusal to recognise someone as a victim , as well as the inaction of the [ relevant official ] leading to a failure to recognise that person as a victim can be appealed against in court by way of a pre - trial procedure in a criminal case set out in ORG CARDINAL and CARDINAL of LAW . ...", "In criminal cases concerning crimes which resulted in the death of a person , the rights of a victim shall be transferred to CARDINAL of his or her close relatives ( part CARDINAL of LAW of LAW ) . By virtue of part CARDINAL of LAW the close relatives are spouses , parents , children , adoptive parents , adopted children , brothers and sisters , grandparents and grandchildren .", "If the criminal offence affected the rights and legal interests of a few close relatives at the same time and they all insist on acquiring the rights of victims , these persons can also be recognised as victims . ...", "The meaning of part CARDINAL of LAW is that representatives of the victim ... could be not only counsel , but also other persons ... capable of providing them with qualified legal assistance . ...", "The courts must comply with the requirements of the law in that the victim , acting with the aim of using his ... powers as set out in the legislation on criminal procedure ... has the right to receive copies of the decision on the institution of a criminal case , recognition of his victim status ... on the discontinuance of a criminal case ... and copies of other procedural documents affecting his interests ( LAW ) . ...", "On the basis of the principle of equality of the rights of the parties ( LAW ) a victim has the same rights as the defence to make challenges and applications , to submit evidence , to participate in its examination , to plead ...", "The victim , his or her representative or legal representative at any stage of the criminal proceedings should be given an opportunity to inform the court about his or her position on the substance of the case and the arguments he or she deems necessary to justify that position . At the same time , the court should take into account the arguments of the victim in respect of the questions which affect his or her rights and legal interests , and to give them a reasoned assessment in taking the judicial decision . ...", "With a view to creating the necessary conditions for the victim to carry out his procedural duties and to enforce his rights ... , the courts , where there are justified grounds , should take measures to assist the victim in collecting the evidence ( receipt of documents , lodging of requests for certificates , etc . ) .", "The victim , his legal representative , representative ... shall have the right to take part in all court proceedings in the examined case for the protection of his or her rights and legal interests . In order to secure that right , the presiding judge should inform them of the date , time and place of the court proceedings . ... ”", "The applicants submitted that no other NORP country had a law on its statute book similar to section CARDINAL(CARDINAL ) of the Interment and Burial Act .", "They also submitted that a similar practice had existed de facto in GPE and been used at an administrative level without ever being codified in law . They referred to the judgment in the case of GPE and Others v. Minister of Defence & Others , DATE , no . HCJ CARDINAL , in which ORG of Justice condemned the practice . According to the applicants , in DATE the NORP authorities announced that they were putting an end to the practice of refusing to return the bodies of NORP , “ except in exceptional circumstances ” .", "The applicants also referred to CARDINAL opinions of ORG issued under LAW in cases against GPE , GPE and GPE , in which the authorities had refused to inform the relatives of a prisoner under sentence of death of the date of execution , to return the body for burial or to disclose the place of burial ( no . CARDINAL , GPE v. GPE , DATE , paragraph CARDINAL ; no . CARDINAL , PERSON v. GPE , DATE , paragraph CARDINAL ; no . CARDINAL/CARDINAL , GPE v. GPE , DATE , paragraph CARDINAL ; no . CARDINAL/CARDINAL , ORG v. GPE , DATE , paragraph CARDINAL ; no . CARDINAL/CARDINAL , PERSON v. GPE , DATE , paragraph CARDINAL ; no . ORG , PERSON , DATE , paragraph CARDINAL ; no . CARDINAL/CARDINAL , GPE v. GPE , DATE , paragraph CARDINAL ) . In particular , in the case of ORG v. LANGUAGE ( no . ORG ) ORG ruled as follows :", "“ CARDINAL The ORG has taken note of the author ’s claim that the authorities did not inform her about [ her ] husband ’s execution but continued to acknowledge her intercessions on his behalf following the execution . The ORG notes that the law then in force did not allow for a family of an individual under sentence of death to be informed either of the date of execution or the location of the burial site of the executed prisoner . The ORG understands the continued anguish and mental stress caused to the author , as the wife of a condemned prisoner , by the persisting uncertainty of the circumstances that led to his execution as well as the location of his gravesite . It recalls that the secrecy surrounding the date of execution and the place of burial , as well as the refusal to hand over the body for burial , have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress . The ORG considers that the authorities’ initial failure to notify the author of the execution of her husband and the failure to inform her of his burial place , amounts to inhuman treatment of the author , in violation of article CARDINAL of the LAW ” .", "The applicants also relied on the judgment of ORG DATE in the case of GPE GPE ( ORG . H.R. , ( Ser . C ) No . CARDINAL ( DATE ) . In that case ORG agents attacked ORG in DATE , killing CARDINAL members of the N’djuka clan ( paragraph CARDINAL ( CARDINAL ) ) . The authorities also prevented the survivors from recovering the bodies . It was further reported that some of the corpses were cremated . The ORG gave a detailed account of the specific funeral rituals of the N’djuka , having noted that :", "“ CARDINAL(CARDINAL ) . The N’djuka have specific rituals that must be precisely followed upon the death of a community member . A series of religious ceremonies must be performed , which require DATE to be completed ; these rituals demand the participation of more community members and the use of more resources than any other ceremonial event of NORP society .", "CARDINAL ) . It is extremely important to have possession of the physical remains of the deceased , as the corpse must be treated in a specific manner during the N’djuka death rituals and must be placed in the burial ground of the appropriate descent group . Only those who have been deemed evil do not receive an honourable burial . Furthermore , in all Maroon societies , the idea of cremation is considered very offensive .", "CARDINAL(CARDINAL ) . If the various death rituals are not performed according to N’djuka tradition , it is considered a moral transgression , which will not only anger the spirit of the individual who died , but may also offend other ancestors of the community . This leads to a number of ‘ spiritually - caused illnesses’ that become manifest as actual physical maladies and can potentially affect the entire natural lineage . The N’djuka understand that such illnesses are not cured on their own , but rather must be resolved through cultural and ceremonial means ; if not , the conditions will persist through generations . ”", "ORG held in paragraph CARDINAL of its judgment that the applicants had suffered inhuman treatment , contrary to LAW , because :", "“ ... CARDINAL of the greatest sources of suffering for the ORG members is that they do not know what has happened to the remains of their loved ones , and , as a result , they can not honor and bury them in accordance with fundamental norms of N’djuka culture . The ORG notes that it is understandable , then , that community members have been distressed by reports indicating that some of the corpses were burned ... ” .", "As part of the just satisfaction award ( paragraph CARDINAL of the judgment ) ORG was ordered :", "“ ... to recover promptly the remains of the PERSON community members killed during the DATE attack . If such remains are found by the ORG , it shall deliver them as soon as possible thereafter to the surviving community members so that the deceased may be honoured according to the rituals of N’djuka culture ” ." ]

[ "13", "8" ]

[ "8-1" ]

[]

[ "14", "3", "8" ]

[]

[]

[ "The applicant was born in DATE and lives in PERSON ( GPE ) .", "On CARDINAL DATE ORG lodged a criminal complaint against a number of its employees , including the applicant , alleging suppression of documents , forgery and uttering , and fraud , offences which it claimed had caused it a loss of MONEY . It accused the employees concerned of having debited the account of ORG ( “ the ORG ” ) using CARDINAL cheques from a cheque book that had been produced in the railway company ’s name but never actually issued to it . On DATE the public prosecutor instituted proceedings against the applicant .", "On DATE the applicant was summoned to appear before the investigating judge and was placed in pre - trial detention . On DATE he was released on bail , subject to court supervision entailing , among other things , a ban on leaving the country .", "In a decision of CARDINAL DATE ORG of ORG committed some of the accused , including the applicant , for trial in ORG , composed of CARDINAL judges as is the rule for cases dealt with by courts of appeal at first instance .", "The hearing , initially set down for DATE , was adjourned firstly until DATE because of a strike by members of ORG and subsequently until DATE because of the ill health of CARDINAL of the other defendants . On DATE the hearing was again adjourned , this time until DATE .", "On DATE the applicant , who before joining the bank had been an officer in the merchant navy , applied to have the ban on his leaving the country lifted so that he could work in the navy again . He argued that he needed to be in gainful employment in order to support his wife and CARDINAL children and pointed out that the proceedings had been adjourned several times by the court itself . However , his application was refused by the public prosecutor and subsequently by ORG , ORG having earlier rejected a similar application .", "The trial finally began on DATE – five years , DATE and DATE after ORG decision of DATE and DATE after the complaint had been lodged and the proceedings instituted . Hearings were held on CARDINAL , DATE , DATE , DATE and DATE . CARDINAL of the co - defendants requested the production in court of the back - up tape for the bank ’s computer ( but not the cheques in question ) . Counsel for the bank produced a declaration by the bank ’s information technology department attesting that the copies of the computer tapes in the file were authentic . The declaration was read out at the hearing without eliciting any reaction from the defendants . During the trial CARDINAL documents were read out and evidence was heard from CARDINAL witnesses .", "ORG gave judgment on DATE . It convicted the applicant and sentenced him to DATE and CARDINAL months’ imprisonment , to be reduced by the period already spent in pre - trial detention , and ordered the confiscation and destruction of the CARDINAL cheques in question . Lastly , it ruled that if the applicant decided to appeal , the appeal would suspend the execution of the sentence .", "The applicant appealed against the judgment to the appropriate court , namely ORG , sitting as a bench of CARDINAL judges . On DATE that court upheld the judgment delivered at first instance but reduced the sentence to DATE and CARDINAL months’ imprisonment .", "During the trial the applicant had requested the production of certain extracts from the log file of the bank ’s computer and of the original cheques and had asked for a handwriting expert , PERSON , to be summoned and cross - examined in the presence of another handwriting expert .", "ORG refused those requests on the following grounds :", "“ The precision and authenticity of the extracts from the bank ’s central computer records , accompanied by declarations by senior executives of the bank , are beyond dispute , and the production of the extracts is unnecessary . Nor is there any need to summon and cross - examine PERSON , because he has drawn up a detailed report which was read out at the trial . Lastly , the photocopies of the relevant cheques , which none of the parties disputes are forged , satisfy the needs of the proceedings and production of the originals therefore serves no purpose . ”", "ORG read out the items of evidence that had already been adduced at first instance and heard evidence from CARDINAL prosecution and CARDINAL defence witnesses .", "It noted that , contrary to what the applicant had maintained , the connection between the cheques in question and the ORG ’s account could not have been established by members of the bank ’s information technology department , which was empowered only to process data from branches . It further observed that on the date of the offence , the applicant had been the only person to use the computer on which the offence had been committed . The handwriting expert had concluded that characteristics of the applicant ’s handwriting and signature were visible on the cheques . Lastly , ORG noted that the applicant was one of the very limited number of the bank ’s employees who knew the ORG ’s account number and the names of the ORG employees authorised to issue cheques .", "The applicant appealed on points of law . On DATE ORG quashed the judgment appealed against in respect of the charges of suppressing documents and forgery and uttering , and remitted the case to ORG in respect of the charge of fraud only .", "ORG held a hearing on DATE . The applicant again requested the production of extracts from the bank ’s log file and sought a declaration from counsel for the bank attesting that the photocopies of the cheques were authentic . ORG refused those requests . With regard to the first request , it ruled that it was impossible to recover the extracts from the bank ’s log file because the relevant tape reels had not been kept , and added that the authenticity of the documents in question was clear from other pieces of documentary evidence . It construed the second request as an attempt to establish whether the defendant had had an accomplice , whereas his guilt was apparent from other evidence . ORG also held that it had not been proved that the photocopies of the cheques had been falsified . It concluded that the defendant had committed the offence on the basis of a pre - defined plan , which he had intended to carry out several times in order to misappropriate funds from ORG .", "On DATE ORG found the applicant guilty of fraud within the meaning of LAW , holding that the loss sustained by the bank had resulted from deception on the part of its employees and that the question whether the computer had been used or not was irrelevant . It sentenced him to DATE and CARDINAL months’ imprisonment ( to be reduced by DATE , the period already spent in pre - trial detention ) and ordered the destruction of the forged cheques .", "On DATE ORG , on an appeal by the applicant , upheld ORG judgment ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant 's father purchased a building located at FAC , GPE , which was made up of CARDINAL blocks , A and B , containing CARDINAL and QUANTITY flats respectively .", "In DATE the ORG nationalised the building under Decree no . CARDINAL/CARDINAL .", "On DATE the applicant applied to the board established by ORG to deal with applications lodged under PERSON no . LANGUAGE ( “ the Board ” ) seeking the return of the whole building under PERSON no . LANGUAGE on the legal status of nationalised residential property ( “ PERSON no . NORP ” ) .", "On DATE the ORG decided that buildings nationalised prior to DATE in respect of which former owners had lodged a claim for restitution under PERSON no . NORP or had brought an action for recovery of possession before the courts were not to be sold to tenants until their legal status had been clarified .", "NORP On DATE and DATE the city council sold to the tenants the CARDINAL flats in block B and the adjoining land , under PERSON no . LANGUAGE .", "On DATE the applicant brought an action against the city council before ORG for recovery of possession of the entire building .", "In a judgment of DATE the court granted the action for recovery of possession and recognised the applicant as the building 's owner . It held that the applicant 's father had not been among those individuals to whom Decree no . CARDINAL/CARDINAL had applied , since he was specifically excluded by its LAW . It ordered the city council to return the building to the applicant . The judgment became final and , in the absence of an appeal , became legally binding .", "On DATE , under PERSON no . LANGUAGE , the city council sold to the former tenants flat no . DATE of the CARDINAL flats in block A of the building in question – and the adjoining land .", "By a decision of DATE , issued in compliance with the judgment of DATE , the city council ordered that the whole building be returned to the applicant .", "On DATE the applicant and the representatives of the city council signed a memorandum assigning possession of the part of the building which had not been affected by the above - mentioned contracts of sale ( see paragraphs CARDINAL and CARDINAL above ) . They noted that , in order for the rest of the building to be returned to the applicant , the contracts concluded with the tenants would first have to be set aside .", "On DATE the Board informed the applicant that he could no longer benefit from the reparation measures provided for in Law no . CARDINAL , a piece of extraordinary legislation , since the building 's return had been ordered in the judgment of DATE .", "In DATE the city council advised the applicant that , under PERSON no . LANGUAGE , he was entitled only to damages , and not to the return of the property .", "On DATE the city council brought an action in ORG , seeking to have set aside the contracts of sale concluded with the tenants ( see paragraphs CARDINAL above ) . On CARDINAL DATE the applicant asked to be allowed to take part in these proceedings ; he too requested that the contracts be set aside .", "In a judgment of CARDINAL DATE the court dismissed the main claim lodged by the city council and allowed in part the applicant 's interlocutory request .", "At the same time , the court held that the agreements concerning the sale of the flats were valid , on the ground that the applicant had not proved that the parties thereto had been acting in bad faith . In those circumstances , it considered that it was open to the applicant to bring an action for recovery of possession in order to have his title to the property compared with those of the purchasers of the flats in question .", "NORP The applicant appealed against that judgment .", "In a judgment of DATE ORG dismissed the applicant 's appeal . It noted that he had not submitted evidence that would rebut the presumption of the purchasers ' good faith and held that , when the contracts were concluded , the tenants could reasonably have assumed that the ORG was the rightful owner of the flats .", "In assessing the parties ' good faith , the court took into account that the applicant had not expressly notified the city council of his intention to seek the building 's return . It dismissed the idea that communication of the introductory claim for recovery of possession amounted to notification , on the ground that the judgment of DATE did not refer to the exact date on which the claim had been lodged .", "The court also held that the purchasers would have been unable , by taking reasonable steps , to find out about the existence of the action for recovery of possession brought by the applicant against the city council .", "The applicant lodged a further appeal .", "In a judgment of CARDINAL DATE , ORG gave judgment against him , considering that he had not proved that the purchasers were acting in bad faith when the contracts were concluded . It observed that possible bad faith on the part of the city council did not implicitly entail that of the purchasers .", "ORG also held that at the time of the sale the purchasers did not know , and could not have found out by taking reasonable steps , that the ORG was not the rightful owner of the building . In addition , it considered that the application for restitution lodged by the applicant with the city council in DATE ( see paragraph CARDINAL above ) did not affect the purchasers ' good faith , given that in DATE the local authorities had informed the applicant that , under PERSON no . LANGUAGE , he was entitled only to damages and not to the return of the property .", "In NORP law , the concept of “ title ” refers to the legal act by which the right of ownership is acquired , namely , for example , through sale , gift or succession , or through the nationalisation law and its practical implementation in the actions of the legally empowered administrative authorities .", "Decree no . CARDINAL/CARDINAL was one of the nationalisation decrees that was widely applied with regard to immovable property ; under it , numerous buildings , listed in the schedules annexed to the decree and which belonged to former industrialists , owners of large estates , bankers and owners of large trading enterprises , were nationalised . LAW of the decree expressly excluded from its scope immovable property belonging to workers , civil servants , small artisans , persons working in intellectual professions and retired persons .", "In the absence of special legislation governing the legal status of nationalised immovable property , the courts initially considered that they had jurisdiction to deal with cases concerning such property , particularly where it had been nationalised in application of Decree no . CARDINAL/CARDINAL . In those disputes , the national courts held that they had jurisdiction to rule on whether the provisions of the various nationalisation decrees met the substantive and procedural requirements laid down in the Constitutions in force when they were adopted .", "During this initial phase , the loss of ownership as a result of nationalisation was considered to have involved a transfer of “ title ” if , at the time of expropriation , there had been compliance with the relevant decrees , the LAW and the international treaties to which GPE was a party .", "In a second period , subsequent to ORG departure from precedent on DATE , the national courts no longer considered that they had jurisdiction to analyse the application of the nationalisation decrees and to order the return of immovable property nationalised in application of Decree no . CARDINAL/CARDINAL . They considered that legislation alone could bring the nationalisations carried out under Decree no . CARDINAL/CARDINAL into accord with the provisions of the LAW concerning the right of property ( see also GPE v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-VII ) .", "In a third period the State enacted PERSON no . LANGUAGE , which allowed for the sale to tenants of nationalised buildings which had passed lawfully into the ownership of the ORG . The return of nationalised buildings to the former owners or their heirs was possible only if they lived in those buildings as tenants or if the property was unoccupied and had not been rented out . In respect of property which did not fulfil those conditions , it was open to the former owners to request compensation .", "In decision no . CARDINAL , which was binding on the authorities responsible for implementing the PERSON , the government defined nationalised buildings legally vested in the ORG as those which had passed into the ownership of the ORG under a legislative provision . Under the same decision , PERSON no . DATE was not applicable to immovable property held de facto by the ORG , that is , where ownership was not based on any legislative provision , given that the ORG had no title to such property .", "Legal opinion , followed in practice by the national courts , found that ORG “ title ” as governed by decision no . CARDINAL implied the existence of a legislative provision authorising nationalisation . It was sufficient for the ORG merely to refer to legislation that was in force at the time of the nationalisation of a property for its expropriation to be considered as having taken place lawfully ( PERSON , PERSON and PERSON , PERSON preluate abuziv . ORG . CARDINAL comentată şi adnotată ( “ The legal status of wrongfully seized property . An annotated commentary on PERSON CARDINAL/CARDINAL ” ) , PERSON , GPE , DATE , vol . I , p. CARDINAL ; similarly , PERSON , ORG . CARDINAL . Regimul juridic aplicabil imobilelor preluate abuziv ( “ Law no . CARDINAL . The legal regime applicable to wrongfully seized property ” ) , PERSON All PERSON , GPE , DATE , p. CARDINAL ; PERSON , GPE civil . Drepturile reale ( “ Civil Law . Rights in rem ” ) , PERSON All PERSON , GPE , DATE , pp . CARDINAL - CARDINAL ; and judgment no . CARDINAL/CARDINAL of ORG ) . It was thus sufficient that immovable property nationalised under Decree no . CARDINAL/CARDINAL had been included in the schedules annexed to the decree for it to be considered as having been nationalised “ by transfer of title ” , irrespective of whether or not the substantive and procedural requirements imposed by the decree had been met at the time of nationalisation .", "Having sold off , under decision no . CARDINAL , part of the immovable property considered to have been nationalised “ by transfer of title ” , in a fourth period , marked by the adoption and entry into force of government decision no . CARDINAL/CARDINAL on DATE , the executive amended and added to the definition of the immovable property which had been nationalised “ by transfer of title ” . It introduced an additional condition : under LAW of the latter decision , property acquired by the ORG through transfer of title was that which had been acquired in accordance with the requirements of the decrees in force at the material time . The decision also provided :", "“ ...", "Residential property which passed into ORG ownership in violation of the legislative provision in force at the material time , or where ORG ownership was not based on any legislative provision , shall be considered as having passed into ORG ownership without title , and is excluded from the scope of PERSON no . DATE .", "A claim for restitution or compensation may be made under ordinary law in respect of immovable property which does not come within the scope of PERSON no . NORP and for which the ORG has no valid title . ... ”", "According to precedent , as confirmed by the practice of the domestic courts , decision no . CARDINAL/CARDINAL is considered to apply not only to property expropriated in fact , but also to that acquired in violation of the legal requirements imposed by the nationalisation decree , both of which were held to have been nationalised “ without title ” ( PERSON , PERSON and PERSON , op . cit , p. CARDINAL ; similarly , PERSON , ORG . CARDINAL/CARDINAL , cited above , p. CARDINAL , and Drept civil , cited above , p. CARDINAL ; and judgment no . CARDINAL of ORG ) .", "Property acquired by ORG no . CARDINAL/CARDINAL was considered to have been nationalised by transfer of title if the legal requirements set out in GPE I § § DATE and II of the decree were met on the date of the nationalisation and if , on DATE , the person listed as owner on the annexed schedules was the real lawful owner .", "Section CARDINAL(CARDINAL ) of this PERSON provides :", "“ Property acquired by the ORG DATE and DATE , provided that it passed into ORG ownership by virtue of a valid title , that is to say in a manner not contrary to the LAW , to international treaties to which GPE was a party or to any legislation in force at the time of its transfer to the State , shall likewise form part of the public or private property of the ORG or other public authorities . ”", "After the ORG had sold off , under decision no . CARDINAL/CARDINAL , some of the property nationalised “ by transfer of title ” , PERSON no . CARDINAL/CARDINAL introduced a new “ validity ” condition for ORG title ; the validity of the ORG 's right of ownership became subject to the compliance of the nationalisation decree and its administrative implementing acts with the LAW , the international treaties to which GPE was a party and the laws in force at the date on which the property in question passed into ORG ownership . A contrario , in the absence of such compliance , the ORG did not have valid title and had thus not acquired ownership rights to the immovable property . The former owner could consequently claim it by applying to the competent courts for examination of the “ validity ” of ORG title ( PERSON , PERSON and PERSON , op . cit . , p. CARDINAL ; similarly , PERSON , ORG . CARDINAL/CARDINAL , cited above , p. CARDINAL , and Drept civil , cited above , pp . CARDINAL - CARDINAL ) .", "The courts granted actions for recovery of possession brought against the ORG where they considered that the relevant nationalisation decree had been applied in breach of the conditions set out in it ( see , for example , judgment no . CARDINAL of ORG ; and judgments nos . CARDINAL/CARDINAL and CARDINAL of ORG application of nationalisation Decree no . CARDINAL/CARDINAL to a person who was exempt from its application ; judgments LAW . CARDINAL and DATE of ORG – failure to comply with the administrative formalities set out in nationalisation Decree no . CARDINAL/CARDINAL ) .", "In certain cases ORG decided , in application of the new condition introduced by PERSON no . CARDINAL/CARDINAL , that certain nationalisation decrees had been contrary to the LAW in force at the time of their adoption and to the international treaties to which GPE had been a party .", "Thus , in judgment no . CARDINAL , it held that Decree no . CARDINAL/CARDINAL failed to comply with LAW ; in judgment no . CARDINAL , it held that Decree no . CARDINAL/CARDINAL was contrary to LAW on account of its discriminatory nature ; in judgment no . CARDINAL , it stated that Decrees nos . PERSON and CARDINAL/CARDINAL did not comply with the provisions of the DATE and DATE Constitutions respectively . This case - law was followed by some of the lower courts ( for example , judgments ORG . CARDINAL and CARDINAL of ORG – published in PERSON and PERSON , PERSON şi alte drepturi reale . Tratat de jurisprudenţă CARDINAL­CARDINAL ( “ The right of ownership and other real - property rights . Treatise on the case - law DATE ” ) , ORG PERSON , GPE , DATE , p. CARDINAL – which noted the failure of Decree no . CARDINAL/CARDINAL to comply with the DATE LAW ; judgment no . DATE of ORG , published in PERSON and PERSON , op . cit . , p. CARDINAL ) .", "NORP In other cases , ORG , followed by another group of courts , held that Decree no . CARDINAL/CARDINAL conferred “ valid ORG title ” ( judgments nos . CARDINAL and CARDINAL , ORG of Justice ; no . CARDINALR/CARDINAL , ORG of Appeal ; nos . CARDINALR/CARDINAL and CARDINAL , ORG ; nos . CARDINAL and CARDINAL , ORG , published in PERSON and PERSON , op . cit . , p. CARDINAL ) .", "In addition , although ORG considered in judgments LAW . CARDINAL and CARDINAL/CARDINAL that Decree no . CARDINAL/CARDINAL was contrary to LAW and the DATE LAW , it nonetheless held in judgment no . DATE that that decree conferred valid ORG title .", "As to Decree no . ORG , ORG ruled in judgments nos . CARDINAL/CARDINAL , DATE and CARDINAL that it contravened the DATE LAW , although it held in judgments FAC . CARDINAL/CARDINAL and CARDINAL that it conferred “ valid ORG title ” .", "Where the seller is not the owner of the possession to be sold , NORP legislation does not explicitly penalise the sale of someone else 's property , which is not regulated by statute . Legal opinion and precedent have consistently noted that this does not deprive the rightful owner of his or her title ( see , for example , judgment no . DATE of ORG , published in the journal PERSON , no . DATE , p. CARDINAL ; judgment no . CARDINAL of ORG , published in the journal PERSON , no . CARDINAL , p. CARDINAL ; judgment no . CARDINAL/CARDINAL of ORG , published in LAW of ORG in DATE , p. CARDINAL ; judgment no . CARDINAL of FAC ) . In practice , the contract of sale concluded between a seller who is not the owner and the purchaser is binding on them alone ( res inter alios acta ) and not in respect of the rightful owner ; the property does not cease to belong to the rightful owner , who continues to be free to dispose of it ( see , for example , judgment no . CARDINAL of ORG , LAW , DATE , p. CARDINAL ) .", "The fate of the contract depends on the good or bad faith of the parties to it . If the parties acted in bad faith in concluding the contract , in that they were aware that the seller was not the owner of the property , legal opinion and the case - law generally consider that the sale was a speculative operation , was unlawful in purpose and , accordingly , that it is null and void ( fraus omnia corrumpit ) ( see , for example , judgment no . CARDINAL of ORG , published in Summary of the Judicial Practice of the Galaţi Court of Appeal , DATE , p. CARDINAL ) .", "If the parties to the contract , or at least the purchaser , concluded the sale in good faith and if the purchaser was persuaded that the seller fulfilled all the legal requirements to be entitled to transfer title ( LAW ) , the contract is tainted only by relative nullity ( see , for example , judgment no . DATE of ORG , published in the journal PERSON , no . DATE , p. CARDINAL ; judgment CARDINAL of ORG , published in ORG , no . CARDINAL/CARDINAL ) . The lawful owner can not apply to have such a sale set aside , because he or she is not a party to the contract , but he or she does have the option of defending his or her title by means of an action for recovery of possession if the property is in the purchaser 's possession ( see , for example , judgment no . CARDINAL of ORG , Case - Law Reports , DATE , p. CARDINAL ; judgment no . CARDINAL of ORG , published in the journal PERSON , no . DATE , p. CARDINAL ; judgment CARDINAL/CARDINAL of ORG , delivered on DATE and published in ORG , no . CARDINAL , p. CARDINAL ; judgment no . CARDINAL of ORG , published in the journal PERSON , no . CARDINAL , p. CARDINAL ; judgment no . CARDINAL/CARDINAL of ORG , published in LAW of ORG in DATE , p. CARDINAL ) .", "Legal opinion and the case - law define an action for recovery of possession , which is not regulated by statute , as an action by which the owner of a specific individual property who has lost possession of it to a third party seeks to have his or her title to the property re - established and to obtain possession of it from the third party , who is not the owner . The claim , as an indefeasible action to establish title which is not subject to limitation of time , is intended to establish directly the existence of the claimant 's title ; obtaining possession is merely an incidental effect .", "The NORP courts have considered that it is sufficient during recovery proceedings to examine the CARDINAL titles , namely those of the claimant and the respondent , in order that the court examining the action may declare that CARDINAL of them had priority ( este mai caracterizat ) over the other on account , for example , of its chronological priority or the fact that it had previously been included in a land register ( see , for example , judgment no . CARDINAL/CARDINAL of FAC , published in PERSON and PERSON , op . cit . , p. CARDINAL , and judgment no . CARDINAL of ORG ) .", "The new PERSON establishes the principle of the return of unlawfully nationalised property , subject to certain exceptions , including CARDINAL concerning buildings sold to tenants under PERSON no . DATE , introduced by section CARDINAL(d ) of PERSON no . CARDINAL . Where return of property is not possible , the former owners are entitled to compensation . The relevant sections of PERSON no . CARDINAL/CARDINAL provide :", "“ ...", "( CARDINAL ) Persons who were owners of immovable property seized by the ORG without valid title shall conserve their title ... ”", "“ The compensation awarded to former owners shall be exclusively in the form of damages :", "...", "( d ) the building was sold to the former tenant in compliance with the provisions of Law no . NORP ... ”", "“ ...", "( CARDINAL ) The sale or donation of immovable property unlawfully seized by the ORG shall be declared null and void , save where these transactions were concluded in good faith . ... ”", "On DATE the government adopted decision no . CARDINAL on the uniform application of PERSON no . CARDINAL/CARDINAL , which enshrines the principle of the stability of property relations by upholding the rights of persons who acquired nationalised immovable property in good faith ( in judgment no . CARDINAL/CARDINAL , ORG held that , if the immovable property had been sold to the tenants and the former owner had not obtained rescission of the contract of sale , the immovable property could not be returned to him or her under PERSON no . CARDINAL/CARDINAL ) .", "The aim of decision no . CARDINAL was to preserve the legal status of property which had already been sold under PERSON no . DATE . In respect of section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL , it stated :", "“ Sales concluded prior to PERSON no . CARDINAL , under PERSON no . NORP and in compliance with the latter 's conditions , enjoy the full protection afforded by PERSON no . CARDINAL in that their effects are recognised and maintained . With regard to sales concluded after the enactment of PERSON no . CARDINAL/CARDINAL , the maintenance or , as appropriate , rescission of the conveyancing act is subject to evidence of the purchaser 's good faith when the sale was concluded . ”", "NORP legal opinion and the domestic courts have given CARDINAL different interpretations , some of them conflicting , of sections CARDINAL(d ) and CARDINAL ) of PERSON no . CARDINAL/CARDINAL and their effects ( see , for example , PERSON , PERSON and PERSON , op . cit . , p. CARDINAL ; “ QUANTITY la admisibilitatea acţiunii PERSON revendicare a adevăratului proprietar împotriva subdobânditorului de bună credinţă LOC imobil ” ( “ Examination of the admissibility of an action for recovery of possession by the lawful owner against the purchaser in good faith of a property ' P ' ” ) DATE or PERSON , PERSON , first part , and PERSON , second part , PERSON , no . CARDINAL/CARDINAL , pp . CARDINAL and CARDINAL ; PERSON , ORG . CARDINAL/CARDINAL , cited above , p. CARDINAL ; PERSON , “ Regimul juridic al revendicării imobilelor preluate de stat fără titlu valabil de la subdobânditorii care se prevalează PERSON credinţă la data cumpărării ” ( “ The rules governing actions for the recovery of possession of immovable property appropriated by the ORG without valid title , brought against purchasers who rely on their good faith at the time of the sale ” ) , PERSON , no . CARDINAL/CARDINAL , p. CARDINAL ) .", "In a consistent series of rulings , ORG has dismissed as inadmissible actions for the recovery of possession of nationalised buildings brought by the former owner against the ORG or the purchasers following the entry into force of PERSON no . PERSON ( see , for example , judgments CARDINAL . CARDINAL/CARDINAL ; CARDINAL ; CARDINAL ; CARDINAL ; CARDINAL ; DATE ; DATE ; DATE ; CARDINAL ; GPE ) .", "In a series of more recent judgments , ORG has dismissed actions for recovery of possession brought by former owners against purchasers following the entry into force of PERSON no . CARDINAL/CARDINAL while indicating that , where the courts had upheld the sale of someone else 's property , this consolidated , ipso jure , the transfer of title to the purchasers , as such an effect was inherent in the contract of sale and could not be overturned through a comparison of the competing titles to the same property ( judgments nos . DATE , DATE , DATE or DATE of ORG ) .", "In other judgments , ORG has dismissed actions brought against purchasers for recovery of possession by applying the theory of appearances ( see , for example , judgments FAC . CARDINAL , DATE and CARDINAL ) , without however explaining the nature of the joint and unavoidable error or the difference between that and mere good faith on the part of the purchaser ( in judgment no . DATE , ORG noted the purchasers ' “ public ” error at the time of the sale , because they had considered , when concluding the sale , that the ORG was the rightful owner of the immovable property ; it also noted that the purchasers had been acting in good faith because they had believed that the ORG was the true owner . In contrast , in judgment no . CARDINAL/CARDINAL it refused to apply the same theory on the ground that the purchaser had not proved the existence of a joint and unavoidable error ) .", "On several occasions , ORG took the view that section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL was applicable in proceedings introduced before that provision was enacted and dismissed actions for recovery of possession brought by the former owner against the purchaser on the basis that the assumption of the purchaser 's good faith was to take priority ( see , for example , judgments nos . CARDINAL/CARDINAL , DATE and DATE ) . It also considered that the absolute nullity of the sale was an essential premise for the admission of an action against the purchaser for recovery of possession ( judgment no . CARDINAL/CARDINAL ) .", "In other judgments ORG and the other domestic courts have dismissed actions for recovery of possession on account of the purchaser 's good faith without reference to PERSON no . PERSON ( see , for example , judgments no . CARDINALR/CARDINAL , ORG ; no . MONEY , ORG , upheld by judgment no . ORG ; and ORG . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL of ORG ) .", "In accordance with the definition given by LAW , good faith is “ a conviction on the part of the occupier that the seller met all the legal requirements to be able to transfer title ” . Thus , in judgment no . DATE , ORG considered that good faith consisted in the purchasers ' conviction that they had concluded a contract with the rightful owner and in compliance with the legal provisions in force at the time the contract was concluded , and that those CARDINAL conditions had been met in the case in question .", "Bad faith has been defined by NORP legal opinion as the attitude of a person who carries out an action or an act in breach of the law while being fully aware of the unlawful nature of his or her conduct ( see PERSON , PERSON , PERSON , PERSON and PERSON , ORG juridic , PERSON , GPE , DATE ) .", "Certain domestic courts have ruled that the purchaser must be asked to provide evidence that he or she took reasonable steps to establish the legal status of the property . Other courts have taken the view that the purchaser 's good faith should be presumed and that it was for the other party to prove bad faith . Thus , there is no consistent case - law indicating either which party bears the burden of proving good faith or the facts which the party wishing to contest that good faith is required to prove .", "In judgment no . CARDINAL , ORG upheld an action for recovery of possession brought by the former owner of a nationalised building , holding that the purchaser 's bad faith “ did not seem open to question , given that ... he knew or might have known that the building was likely to be claimed by the former owners , that he could and indeed ought to have apprised himself of the steps taken by the former owner to recover possession , and that his passivity was to be taken into account ” . It also ruled – in judgment no . DATE that it was inconceivable that , when purchasing such a significant item of property as a building , the tenant would have failed to take reasonable steps to establish that property 's legal status .", "In addition , it stated – in judgment no . DATE that , as a minimum and prior to conclusion of the sale agreement , the purchaser ought to have checked whether an application for restitution had been submitted in respect of the building under PERSON no . NORP or whether an action for recovery of possession was pending , failing which his good faith could be questioned . In judgment no . DATE , ORG considered that the purchaser 's lack of information or ignorance with regard to the legal status of the property acquired was not such as to excuse his or her mistake .", "In judgment no . DATE , however , ORG indicated that the failure by a tenant to take steps to establish the legal status of the building which he was in the process of acquiring had no legal consequences .", "In other judgments , ORG applied the principle set out in LAW , by which good faith is presumed and bad faith must be demonstrated by the party relying on it , but without however examining the steps that the purchaser had or had not taken prior to purchasing a nationalised property ( see , for example , judgments nos . CARDINAL ; DATE ; DATE ; CARDINAL/CARDINAL ; CARDINAL/CARDINAL ; and CARDINAL ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants were born in DATE , CARDINAL , CARDINAL , DATE and DATE respectively , and live in GPE .", "Mr DATE worked in GPE from DATE to DATE .", "On DATE Mr Maggio requested ORG ( “ INPS ” ) , an NORP welfare entity , to re - examine his old - age pension and to liquidate it on the basis of the real remuneration received ( “ retribuzione effettiva ” ) during DATE of employment in GPE , in accordance with the DATE Italo - Swiss Convention .", "On an unspecified date the ORG rejected his request , since the calculation had to be based on the remuneration received in GPE and then be re - adjusted on the basis of the tables supplied in Circular no . CARDINAL of DATE .", "Mr Maggio instituted proceedings before ORG , claiming that the payment of old - age pensions had to be calculated on the basis of the real remuneration received ( in DATE of employment ) and of the contributions paid in part in GPE and in part in GPE .", "By a judgment filed in the registry on DATE , his claim was rejected .", "Mr DATE appealed to ORG which , by a judgment filed in the registry on DATE , rejected his claim . It took into consideration a technical expert report in relation to LAW ( see Relevant Domestic Law below ) , which provided for the transfer of contributions paid in GPE to the NORP insurance scheme for use in the calculation of old - age pensions , and guaranteed the benefits of NORP legislation . Consequently , it held that the pension calculation was to be made on the basis of NORP criteria , even though they were less favourable than the NORP ones . Indeed , NORP law ( decree of DATE no . CARDINAL ) provided for a calculation based on higher contributory rates than those in GPE , thus providing a lower pension than that expected by PERSON .", "By a judgment of DATE filed in the registry on CARDINAL DATE , ORG dismissed PERSON claim , after rejecting his request for a preliminary reference to the ECJ . It held that the criteria used by ORG were eventually acknowledged in DATE , paragraph CARDINAL , of PERSON no . CARDINAL of DATE ( “ LAW ” ) , which had retroactive effect . This PERSON had not been found to be unconstitutional by ORG in a judgment of CARDINAL DATE ( see Relevant Domestic Law below ) .", "NORP In DATE Mr PERSON requested the ORG to establish his pension on the basis of the contributions paid in GPE for work he had performed there between DATE and DATE . As a basis for the calculation of his pension , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a re - adjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which led to a reduction of PERCENT in the basic amount used to calculate the pension and therefore a reduction in the pension itself . Consequently , in DATE Mr PERSON instituted judicial proceedings .", "By a judgment of ORG ) of DATE , PERSON claim was upheld on the basis of the relevant Court of Cassation case - law at the time ( see Relevant Domestic Law below ) .", "The ORG appealed .", "By a judgment of CARDINAL DATE , ORG reversed the first - instance judgment in view of the entry into force of PERSON CARDINAL/CARDINAL . Mr PERSON Thus , the judgment became final on DATE .", "Mr GPE was entitled to an old - age pension from DATE .", "In DATE Mr PERSON requested the ORG to establish his pension on the basis of the contributions paid in GPE for work he had performed there DATE and DATE . As a basis for the calculation of his pension , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a re - adjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which led to a reduction of PERCENT in the basic amount used to calculate the pension and therefore a reduction in the pension itself . Consequently , in DATE Mr GPE instituted judicial proceedings .", "By a judgment of ORG ) of DATE , PERSON claims were rejected in view of PERSON CARDINAL/CARDINAL and the subsequent ORG judgment . Mr GPE did not appeal , deeming it to be futile in view of the relevant case - law at the time .", "PERSON was entitled to an old - age pension from DATE and to a survivor ’s pension , as a widow , her husband having become a pensioner on DATE , from the date of her husband ’s death .", "In DATE PERSON requested the ORG to establish her pension on the basis of the contributions paid in GPE for work she had performed there DATE and DATE , and those paid by her husband . As a basis for the calculation of the relevant pensions , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a re - adjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which led to a reduction of PERCENT in the basic amount used to calculate the pension and therefore a reduction in the pension itself . Consequently , in DATE PERSON instituted judicial proceedings .", "By a judgment of ORG ) of DATE , PERSON claims were rejected in view of LAW and the subsequent ORG judgment . PERSON did not appeal , deeming it to be futile in view of the relevant case - law at the time .", "PERSON was entitled to an old - age pension from DATE .", "In DATE PERSON requested the ORG to establish her pension on the basis of the contributions paid in GPE for work she had performed there DATE . As a basis for the calculation of her pension , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a re - adjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which led to a reduction of PERCENT in the basic amount used to calculate the pension and therefore a reduction in the pension itself . Consequently , in DATE PERSON instituted judicial proceedings .", "By a judgment of ORG ) of DATE , PERSON claims were rejected in view of LAW and the subsequent ORG judgment . PERSON did not appeal , deeming it to be futile in view of the relevant case - law at the time .", "Article CARDINAL of the transitional provisions of ORG , of DATE , provides , in so far as relevant , as follows ( unofficial translation ) :", "“ CARDINAL . In so far as GPE is concerned , performance shall be in accordance with the provisions of this LAW , even in cases where the insured event occurred before the entry into force of the LAW . Old - age and survivors’ ordinary annuities will , however , only apply in accordance with these provisions if the insured event took place before DATE , and if the contributions were not or will not be transferred or reimbursed in accordance with ORG , or paragraph CARDINAL of this Article . ( ... )", "In so far as GPE is concerned , performance shall be in accordance with the provisions of this Convention where the insured event occurred on or after the date of its entry into force . Nevertheless , when the insured event occurred before that date , performance shall take place in accordance with the present Convention from the date of its entry into force , if it would not have been possible to grant such a pension due to the insufficiency of the insurance periods , and only if the contributions have not been reimbursed by the NORP social insurance scheme .", "With the exception of the above provisions , periods of insurance , of contributions and of residence occurring before the entry into force of this Convention will be taken into consideration .", "For DATE from the entry into force of this Convention , upon the attainment of pensionable age under NORP law , NORP citizens may request , in derogation of DATE , that the contributions paid by them and their employers into the NORP old - age and survivors insurance schemes be transferred to the NORP insurance scheme , on condition that they have left GPE for permanent settlement in GPE or in a third country prior to DATE in which their pensionable age was reached . LAW ) and ( CARDINAL ) of the Convention of CARDINAL DATE will apply to the use of such transferred contributions , eventual reimbursements and the effects of such transfers . ”", "In so far as relevant , LAW CARDINAL DATE provides ( unofficial translation ) :", "“ ... ( CARDINAL ) NORP citizens not covered by the preceding sub - paragraph ( * ) or their survivors , may request contributions paid by them and their employers into the NORP old - age and survivors’ insurance to be transferred to the NORP social welfare insurance scheme as indicated in DATE * ) . The latter will use the said contributions to ensure that the insured person obtains the benefits derived from NORP law quoted in DATE * ) and any other dispositions issued by the NORP authorities . In the event that , under the relevant NORP legal provisions , the insured person can not assert a right to a pension , the NORP social welfare services will reimburse , upon request , the transferred contributions .", "( CARDINAL ) Transfer of contributions as provided for in the above sub - paragraph may be requested :", "( a ) if the NORP citizen has left GPE DATE before ,", "( b ) on the occurrence of the insured event .", "The NORP citizen whose contributions have been transferred to the NORP social insurance scheme can not assert any right in respect of the NORP old - age and survivors’ insurance on the basis of such contributions . Such a person , or his [ or her ] survivors , may expect an ordinary annuity from the NORP old - age and survivors insurance scheme only ... [ under ] the conditions set out in the first paragraph ( * ) . ”", "It is noted that the articles marked ( * ) were repealed by LAW , except for the purposes of the above cited LAW ) .", "The transitional provision of LAW became definitive by means of the additional agreement of CARDINAL DATE , whose LAW ) and ( CARDINAL ) reads :", "“ On reaching pensionable age under NORP law , and where they have not already been in receipt of a pension , NORP citizens may request , in derogation of DATE , that the contributions paid by them and their employers into the NORP old - age and survivors’ insurance scheme be transferred to the NORP insurance scheme , on condition that they have left GPE for permanent settlement in GPE ... ”", "“ The NORP social welfare entities must use such contributions in favour of the insured or his or her heirs in such a way as to ensure the attainment of the advantages derived from NORP law , as cited in LAW , in accordance with the specific arrangements issued by the NORP authorities . If no advantage can be attained on the basis of such arrangements , the NORP social welfare entities must reimburse the transferred contributions to the interested parties . ”", "ORG judgment of DATE , and other analogous jurisprudence at the material time , established that , in the absence of specific legislation regulating the transfer of contributions , the method of calculation in determining workers’ pensions should be based on the real remuneration received by that person , including any work undertaken in GPE , irrespective of the fact that contributions paid in GPE and transferred to GPE had been calculated on the basis of much lower rates than those established under NORP legislation .", "DATE , paragraph CARDINAL , of LAW , which entered into force on DATE , provides ( unofficial translation ) :", "“ LAW no . CARDINAL of DATE and subsequent modifications must be interpreted to the effect that , in the event of transfer of contributions paid to foreign welfare entities to the NORP obligatory general insurance scheme , as a consequence of international social security treaties and conventions , the pensionable remuneration relative to the employment period abroad is calculated by multiplying the amount of transferred contributions by CARDINAL and dividing the result by the contribution rates for the invalidity , old - age and survivors insurance scheme , as applicable during the relevant contributory period . More favourable pension treatment already liquidated before the entry into force of the current law is exempted . ”", "By a writ of CARDINAL DATE , ORG questioned the legitimacy of LAW and remitted the case to ORG . ORG gave judgment on DATE , holding , in sum , as follows .", "Although interpretative , LAW was innovative . There had been no conflicting case - law on the pension regime but a single well established interpretation , according to which the NORP worker could ask to transfer his or her contributions , paid in GPE , to the ORG , in order to obtain the advantages provided by NORP law on invalidity , old - age and survivors’ insurance , including that of remuneration - based pension calculations , on the basis of the wages earned in GPE , irrespective of the fact that the transferred contributions had been paid at a much lower NORP rate .", "ORG noted that the laws defining pension remuneration were part of a welfare system which balanced available resources and the services supplied . A change in calculating pensions from the contributory criterion to the remuneration - based one ( “ retributivo ” ) , was not to the detriment of the financial sustainability of the system . Thus , the changes brought about by the impugned PERSON sought to bring the relationship between pensionable remuneration and contributions in line with the system in force in GPE during the same period of time . The PERSON provided that remuneration received abroad ( used as a basis for pension calculations ) was to be adjusted by applying the same percentage ratios used for pension contributions paid in GPE during the same period . Thus , the norm made explicit what had been in the original interpretative provisions . Consequently , there had been no breach of the principle of legal certainty . Nor was the norm discriminatory since the acquired and more favourable rights of earlier pensioners were , by then , unassailable . Furthermore , the PERSON did not discriminate against people who had worked abroad , because it simply ensured an overall balance in the welfare system , and avoided the situation whereby persons who had made small contributions to a foreign pension scheme could receive the same pension as those who had paid the much higher NORP contributions . The contested PERSON did not provide for any ex post reductions , as it merely imposed an interpretation which could already have been inferred from the original provisions . Lastly , this system still allowed for a sufficient and satisfactory pension , adequate for the lifestyle of a worker . Accordingly , the claim of unconstitutionality of the said PERSON was manifestly ill - founded ." ]

[ "6" ]

[ "6-1" ]

[]

[ "14", "P1" ]

[ "P1-1" ]

[]

[ "The applicant , PERSON , is a national of GPE who was born in DATE and currently lives in GPE . She was represented before the ORG by Mr Č. GPE , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant ’s husband , ORG , was an officer serving in ORG ( “ the ORG ” ) . In DATE the ORG awarded him , and he became the holder of , a specially protected tenancy ( stanarsko pravo ) of a flat in GPE . Pursuant to the relevant legislation , the applicant as his wife automatically became a co - holder of the specially protected tenancy of the flat in issue .", "After a trial in absentia , on DATE ORG ( ORG ) found PERSON guilty of a war crime against the civilian population and sentenced him to CARDINAL years’ imprisonment . The judgment was upheld on appeal by ORG on DATE . The courts found that in the period DATE , during the siege of the ORG ’s military barracks in the town of GPE , GPE as a commander of DATE ( Varaždin ) corps of the ORG had ordered indiscriminate attacks on civilian targets in the town .", "On DATE the ORG brought a civil action against GPE and the applicant in ORG ( PERSON ) seeking termination of their specially protected tenancy and the applicant ’s eviction . The plaintiff relied on section CARDINALa of LAW .", "On DATE ORG ruled for the plaintiff . It terminated the tenancy of GPE and his wife and ordered the applicant ( the wife ) to vacate the flat within DATE . In the reasons given for its decision the court referred to the ORG ’s obligation stipulated in paragraph CARDINAL of section CARDINALa of LAW ( see below ) . PERSON and his wife appealed .", "On DATE ORG ( Županijski sud u GPE ) dismissed the appeal and upheld the first - instance judgment .", "On DATE the applicant lodged a constitutional complaint against the second - instance judgment alleging violations of her constitutional right to equality before the law , the right to be presumed innocent and the right to respect and protection of personal and family life , dignity , reputation and honour .", "On DATE ORG dismissed the applicant ’s complaint . It held that the lower courts’ judgments were not a result of the arbitrary interpretation or application of relevant substantive law and that therefore her constitutional right to equality before the courts had not been breached . Moreover , since the outcome of the proceedings the applicant had complained about did not involve the determination of her criminal liability , her right to be presumed innocent could not have possibly been breached in such proceedings .", "On DATE ORG entered into force . It entitled holders of specially protected tenancies of flats in social ownership ( društveno vlasništvo ) to purchase their flats under favourable conditions .", "On DATE the LAW to the LAW entered into force extending the right of purchase to holders of specially protected tenancies of flats in state ownership ( državno vlasništvo ) .", "The applicant never filed a request with the competent authorities with a view to purchasing her flat because she considered that she could not have done so while the proceedings for termination of her specially protected tenancy were pending .", "LAW ( Zakon o stambenim odnosima , ORG nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) , as in force at the material time , provided as follows :", "Section CARDINAL", "“ CARDINAL . If a specially protected tenancy was acquired by CARDINAL spouse who lives with the other , the other shall also be considered as having acquired it ..", "If CARDINAL of the spouses dies or permanently ceases to use the flat , the other spouse shall retain the tenancy , unless otherwise provided for by this LAW . ”", "Section CARDINALa", "“ CARDINAL . A specially protected tenancy of those who participated or participate in enemy activities against GPE shall be terminated .", "Following the court decision on the termination , the owner of the flat shall provide either the same flat or other appropriate lodging for use by the [ other ] members of the household . ”", "Section CARDINAL", "“ CARDINAL . The provider of the flat shall terminate a specially protected tenancy by bringing an action in the competent court .", "CARDINAL ....", "The judgment ordering eviction shall not be enforced if the person to be evicted is not provided with another flat or basic accommodation [ nužni smještaj ] , when that is required by this LAW .", "Another flat shall be secured by the provider of the flat at the latest by the end of the main hearing in the proceedings for the termination of the specially protected tenancy , unless otherwise provided for by this LAW . ”", "Basic accommodation shall be secured in enforcement proceedings . ”", "Section CARDINAL", "“ The duty of the tenant to vacate the flat extends to other users of that flat , unless otherwise provided for by LAW . ”", "According to ORG jurisprudence , the specially protected tenancy was terminated as soon as the court ’s judgment , upholding the claim of the provider of the flat to that end , became res judicata ( see , inter alia , ORG decision no . CARDINAL of DATE ) .", "In its decisions ORG . ORG of DATE , ORG of DATE , ORG of DATE , Gzz-CARDINAL/CARDINAL - CARDINAL and Gzz-CARDINAL/CARDINAL - CARDINAL of DATE ORG held that where a spouse acquired a specially protected tenancy on the basis of section CARDINAL of LAW , his or her right was to be considered derived from that of the other spouse to whom the flat had originally been awarded ( that is , the original holder of the tenancy ) . Consequently , when the specially protected tenancy of the original holder was terminated , the tenancy of the other spouse derived from it was to be considered terminated as well .", "In its opinion no . Su - IV-CARDINAL/CARDINAL of CARDINAL DATE and decisions ORG . ORG and Gzz-CARDINAL/CARDINAL- CARDINAL of DATE , GPE - CARDINAL of DATE , Gzz-CARDINAL/CARDINAL - CARDINAL of DATE , Gzz-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE and Gzz-CARDINAL/CARDINAL of DATE ORG held that in a judgment terminating the specially protected tenancy of the original holder , and consequently that of the spouse , on the basis of section CARDINALa ( CARDINAL ) of LAW , a court was entitled to order the eviction of the original holder but not of the spouse whose tenancy was derived from it . This was so because the spouse was entitled to remain in the flat in the capacity of a household member , pursuant to section CARDINALa ( CARDINAL ) of LAW , until the provider of the flat either gave him or her the same flat for use or provided him or her with other appropriate lodging . Only in circumstances where the requisite alternative accommodation was secured for the spouse and other household members , but they nevertheless continued to occupy the flat , was the provider of the flat entitled to bring a separate civil action for their eviction . However , in the above mentioned decision no . Gzz-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ORG upheld a judgment in which , apart from terminating the specially protected tenancy of both spouses under section CARDINALa ( CARDINAL ) of LAW , the lower court also ordered their eviction but made that order in respect of the wife DATE a household member – conditional upon providing her with alternative accommodation . ORG upheld the judgment because , as it was formulated , it was not detrimental for the wife as the household member .", "In its decisions nos . U - I-CARDINAL/CARDINAL of DATE , U - III-CARDINAL/CARDINAL of DATE , U - III-CARDINAL/CARDINAL of CARDINAL DATE and U - III-CARDINAL/CARDINAL of CARDINAL DATE ORG held that section CARDINALa of LAW did not introduce the principle of collective guilt because its paragraph CARDINAL obliged the ORG to provide for the household members by meeting their housing needs . Nor did it violate the constitutional right to be presumed innocent because , properly interpreted , that provision could only be applied to those holders of specially protected tenancies who had been convicted by a final judgment delivered in criminal proceedings .", "ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL with subsequent amendments – “ the Sale to Occupier Act ” ) , which entered into force on DATE , entitled the holder of a specially protected tenancy ( “ the tenant ” ) of a socially - owned flat to purchase it from the provider of the flat under favourable conditions . The members of the tenant ’s household were also entitled to do so upon his or her approval ( section CARDINAL paragraph CARDINAL ) . Where both spouses were holders of the specially protected tenancy of a flat , they could buy it either jointly or individually with the consent of the other ( section CARDINAL paragraph CARDINAL ) .", "Section CARDINAL ( CARDINAL ) provided that a written request for purchase ( the first request ) had to be made within DATE of the date of the Act ’s entry into force ( this time - limit was by subsequent amendments to the Act extended until DATE ) , and a further request for the actual conclusion of the purchase contract ( the second request ) within DATE following the first request .", "In its decision no . Rev-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ORG interpreted section CARDINAL ( CARDINAL ) of ORG as follows :", "“ Since the plaintiff did not make a request for purchase of the flat to the respondents in written form until DATE , as provided by law , [ ... ] , the lower - instance courts correctly assessed that the plaintiff had lost his right to request the conclusion of the purchase contract . ”", "The LAW to LAW ( Zakon o izmjenama i dopunama PERSON o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . DATE the DATE LAW , which entered into force on CARDINAL DATE , extended the right of purchase to the holders of specially protected tenancies of state - owned flats .", "Section CARDINAL read as follows :", "( CARDINAL ) Holders of specially protected tenancies [ ... ] shall have the right to purchase their flats in state ownership .", "( CARDINAL ) The provisions of section CARDINAL of [ LAW ] shall not apply to the purchase of flats in state ownership .", "( CARDINAL ) The following persons shall not be entitled to purchase , or transfer the right to purchase , a flat in state ownership :", "- those sentenced by a final judgment for crimes against humanity and international law ,", "- those sentenced by a final judgment for crimes against GPE ,", "- those against whom criminal proceedings for crimes against humanity and international law or crimes against GPE have been instituted , until the judgment becomes final ,", "- those who participated or participate in enemy activities against GPE ,", "- those who have evaded conscription ,", "- those against whom proceedings for termination of a specially protected tenancy or termination of a lease agreement in respect of a flat have been instituted , until the end of those proceedings ,", "- those owning a dwelling house or flat in the same place [ village , town or city ] ,", "- those who have left GPE or have moved to the occupied territories and have not used the flat for DATE .", "Section CARDINAL ( CARDINAL and CARDINAL ) of the DATE Amendments provided that a written request to purchase a state - owned flat ( the first request ) had to be made within DATE of the date of the DATE Amendments’ entry into force ( paragraph CARDINAL ) , after the expiry of which the tenant lost his or her right to purchase the flat ( paragraph CARDINAL ) .", "Section CARDINAL ( CARDINAL ) provided that the seller had to conclude the purchase contract with the buyer within DATE after the expiry of the time - limit referred to in paragraph CARDINAL ( this time - limit was by subsequent amendments extended until DATE ) .", "Section CARDINAL ( CARDINAL ) provided that if the seller , at the request of the buyer , failed to conclude the contract within the time - limit referred in paragraph CARDINAL , the buyer had a right to bring a civil action in the competent court with a view to obtaining a judgment entirely substituting the contract .", "Following CARDINAL petitions to review the constitutionality of the DATE Amendments , on DATE ORG accepted the initiative and instituted proceedings to that end . On DATE it delivered decision no . U - I-CARDINAL/CARDINAL abrogating a number of provisions of the DATE Amendments as being unconstitutional . In particular , ORG abrogated CARDINAL of sections CARDINAL DATE . It further abrogated paragraph CARDINAL of section CARDINAL in the part relating to the transfer of the right to purchase but held that this abrogation did not relate to sub - paragraphs CARDINAL and CARDINAL . ORG - paragraphs CARDINAL , DATE and CARDINAL of paragraph CARDINAL of the same section were also abrogated .", "It observed that paragraph CARDINAL of section CARDINAL , as it read , in fact entitled only the holder of the specially protected tenancy of a state - owned flat to purchase it , thereby effectively excluding the spouse and other members of the household from doing so , an option otherwise available to them under section CARDINAL of the LAW in respect of socially - owned flats . ORG held that the exclusion of that option in respect of state - owned flats was unwarranted and thus amounted to constitutionally impermissible discrimination . In particular , ORG held that this discrimination adversely affected , inter alia , a spouse who had acquired a specially protected tenancy by operation of section CARDINAL of LAW but whose tenancy was subsequently terminated as a consequence of the termination of the tenancy of the original holder pursuant to section CARDINALa ( CARDINAL ) of that Act .", "Paragraphs CARDINAL and CARDINAL of section CARDINAL were also abrogated because of an unwarranted distinction as regards the time - limits for making a request to purchase the flat between the holders of specially protected tenancies of state - owned flats and those of socially - owned flats . ORG noted that the holders of specially protected tenancies of state - owned flats had been obliged to make their request within DATE following the entry into force of the DATE Amendments whereas the holders of tenancies of socially - owned flats had had to do so within DATE following the entry into force of the Sale to Occupier Act , which time - limit had been extended several times ( eventually until DATE ) .", "In its decision no . Rev-CARDINAL/CARDINAL - CARDINAL of DATE ORG interpreted the relationship between LAW ( in particular its section CARDINAL ) and the DATE Amendments as follows :", "“ The plaintiff made a request for purchase of the flat to the respondent on DATE , that is , after the expiry of the prescribed time - limit ( DATE ) , so the courts [ ruled ] correctly [ when they ] dismissed her claim . The time - limit in question is preclusive , meaning that after its expiry a holder of a specially protected tenancy loses his or her right to make a request to purchase the flat ...", "The fact that the proceedings for termination of the specially protected tenancy DATE that ended by the first - instance judgment [ ... ] of DATE , which became final on DATE – were pending between the parties at the time when the time - limit expired ( DATE ) is not relevant . [ ... ] [ Those proceedings ] did not prevent the plaintiff from making a request to purchase the flat . ...", "The provisions of LAW on which the plaintiff relies , and which concern the so - called state - owned flats , did not extend the time - limit for making the request to purchase the flat . Under [ section QUANTITY of the DATE LAW , against whom the proceedings for termination of the specially protected tenancy ... have been instituted , could not , until the end of those proceedings , buy a state - owned flat . That means , in particular , that the plaintiff could not have concluded a contract of sale in respect of the flat until DATE , when the proceedings for the termination of the specially protected tenancy ended ... On DATE that impediment ceased to exist ... [ H]owever making a written request to purchase the flat before the expiry of the prescribed time - limit is a precondition for the conclusion of the contract [ of sale ] . Since the plaintiff had not made such a request before the time - limit had expired ( DATE ) she had lost the right to make the request and the respondent was not obliged to sell her the flat on the basis of the request made after the expiry of the time - limit ( DATE ) . The proceedings for termination of the specially protected tenancy were an impediment to buying the flat ( for the conclusion of a contract ) , but not to making a request to purchase the flat . The existence of the [ pending ] proceedings does not extend the time - limit for making a request to purchase the flat .", "ORG decision U - I-CARDINAL/CARDINAL of DATE abrogating , inter alia , section CARDINAL paragraphs CARDINAL and DATE LAW these proceedings . Those abrogated provisions provided that the request ... to purchase the state - owned flat had to be made within DATE following the entry into force of the DATE LAW and that after the expiry of that time - limit the applicant lost the right to buy the flat . [ Those provisions ] placed the holders of specially protected tenancies of state - owned flats in an unequal position compared to the holders of such tenancies of flats not owned by the ORG , because for them the considerably shorter preclusive time - limit for making their request to purchase the flat was prescribed ( the prescribed time - limit of DATE expired on DATE ) . By ORG decision the buyers of state - owned flats were put in the same position as other buyers , but they were not given a privileged status so that the prescribed time - limit for making a request to purchase the flat ( DATE ) , valid for all other buyers , would not apply to them . ”", "ORG o najmu stanova , ORG no . CARDINAL/CARDINAL of DATE ) , which entered into force on DATE , abolished the specially protected tenancy as such ( LAW paragraph CARDINAL ) but provided that proceedings instituted under LAW should be concluded under the provisions of that LAW ( section CARDINAL paragraph CARDINAL ) .", "The Lease of Flats Act regulates the legal relationship between landlord and tenant with respect to the lease of flats . It recognises a special category of tenants , namely those who were previously holders of specially protected tenancies of privately - owned flats or those who did not purchase their flats under LAW . That category is subject to a number of protections , for instance , an obligation on the owners that a contractual lease should last for an unlimited period of time ; payment of a protected rent ( zaštićena najamnina ) , the amount of which is to be prescribed by the Government , as well as limited reasons for the termination of the lease .", "Section CARDINAL provides that if none of the persons living in the flat held the specially protected tenancy at the moment of the Act ’s entry into force ( for example , the household members ) they could institute proceedings before the competent court to obtain the status of lessees under a lease agreement with protected rent .", "On DATE the ORG adopted a decree ( ORG o preuzimanju sredstava JNA i SSNO na teritoriju PERSON u vlasništvo PERSON ) whereby it took all the ORG ’s property in GPE into state ownership ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants were born in DATE and DATE respectively . The first applicant lives in the town of PERSON , GPE , the second applicant lives in PERSON .", "The first applicant used to live in PERSON , at TIME . She has CARDINAL children , CARDINAL sons and QUANTITY daughters . Her son PERSON was born in DATE .", "The second applicant lives in PERSON , at CARDINAL PERSON , apt . CARDINAL . Her son PERSON was born in DATE . She has CARDINAL other sons born in DATE and DATE . Before the hostilities she worked for ORG , as did her husband and several close relatives . In DATE they were forced to leave GPE because of separatist attacks on their family , and lived in GPE for DATE as internally displaced persons . They returned to ORG on CARDINAL DATE .", "On DATE the first applicant and her son PERSON were at home . TIME CARDINAL friends of GPE , T. ( born in DATE ) and PERSON , came to their house . PERSON asked the applicant ’s permission to go with them and to spend TIME at T. ’s home . The applicant agreed because she knew the boys , who lived nearby .", "The second applicant submitted that her son PERSON , the first applicant ’s son PERSON and T. had been good friends . The second applicant ’s son had a guitar and they often played it in the courtyard of the applicant ’s house . They did not normally go out on the street after TIME because of the curfew imposed by the military . On DATE at QUANTITY they had gone to T. ’s house at FAC ( also referred to as FAC ) , adjacent to their street , to spend TIME there . PERSON had his guitar with him .", "On DATE in the morning the first applicant went to the passport desk of ORG of the ORG ( ORG ) in order to obtain a new passport for her son . She returned home at TIME and her daughter told her that ORG had not come home . The first applicant went to see PERSON ’s mother , who told her that her son was not at home either .", "On DATE in TIME the second applicant , worried about her son , asked a group of servicemen in FAC if they had seen CARDINAL young men . The soldiers replied that they had detained them and sent them to GPE , the main NORP military base in GPE . The women found the commander of the unit in an armoured personnel carrier ( ORG ) , but he denied knowing anything about the CARDINAL teenagers .", "On DATE the applicants and T. ’s mother went to PERSON and submitted an application concerning the alleged detention of their sons . On DATE an investigator from that office came to ORG house and questioned the CARDINAL women .", "According to the applicants , in DATE after the CARDINAL boys’ disappearance it became clear from the ORG answers that the boys had been detained TIME on DATE by a joint group of servicemen of the special police forces ( PERSON ) from PERSON and special mission brigade no . CARDINAL of ORG troops ( referred to below as Obron-CARDINAL ) stationed in the district . The soldiers had detained the teenagers during a night raid , brought them to the headquarters of Obron-CARDINAL and TIME had taken them to the LOC military base .", "The applicants submitted a copy of the report dated DATE sent by the commander of the PERSON unit , PERSON . PERSON , to the head of PERSON . It read as follows :", "“ I can report that during TIME DATE , [ a group of servicemen ] , together with a reconnaissance unit of Obron-CARDINAL , staged an ambush in FAC , where explosive devices had previously been found , in order to prevent the planting of mines and explosive devices .", "At TIME the group detained CARDINAL persons covertly moving in the area . A search revealed a number of components and parts of explosive devices , notably :", "a warhead from a CARDINAL-mm shell with an opening for a detonator ;", "a round for a portable anti - tank gun , also prepared as an explosive device ;", "some wires .", "CARDINAL of the detainees attempted to flee . The detainees had no identity documents in their possession . They were taken to Obron-CARDINAL headquarters where they were brought to the special [ counter - intelligence ] unit for questioning . CARDINAL of the detainees resembled the description of a rebel fighter ( “ boyevik ” ) who had attacked roadblock no . CARDINAL on DATE using a flamethrower . ... On TIME the individuals concerned were taken to “ FAC by the servicemen of PERSON . No shots were fired during their arrest . ”", "On DATE an investigator from the Leninskiy VOVD brought the second applicant her son ’s guitar . He told her it had come from the commander of Obron-CARDINAL , PERSON , who alleged that his servicemen had found it in the street .", "On DATE the same investigator told the second applicant that the CARDINAL boys had been transferred to GPE and that ORG ( GRU ) of the army was in charge of them . He also allegedly told her that he could do nothing in the circumstances and that she should instead contact the military commander of ORG .", "The applicants have had no news of their sons since this time .", "NORP Immediately after the detention of their sons , the applicants and other members of their families started to search for them . On numerous occasions , both in person and in writing , they applied to the prosecutors at various levels , ORG , the Special Envoy of the NORP President in GPE for rights and freedoms , military commanders , the administrative authorities , the media and public figures .", "The applicants personally visited detention centres , police stations , military bases and prisons in GPE as well as further afield in the north NORP area . The second applicant also went to look at the bodies discovered in a mass burial site in DATE in the village of GPE , near the GPE military base .", "Besides personal visits , the applicants sent numerous letters to the prosecutors and other authorities , in which they stated the facts of their ORG arrest and asked for assistance and details of the investigation . The applicants submitted copies of letters they had written , all conforming to roughly the same model .", "The applicants received very little substantive information from official bodies about the investigation into the disappearances . On several occasions they were sent copies of letters stating that their requests had been forwarded to various ORG offices . The summary below is based on the letters retained by the applicants and the replies they received from the authorities .", "On DATE both applicants were informed by ORG that it had opened a criminal investigation under LAW into the abduction of their sons .", "On DATE an investigator from ORG informed the applicants that a criminal investigation file ( no . DATE ) had been opened following their applications . The investigation had established that the QUANTITY teenagers had been detained by officers from the PERSON and PERSON during an ambush in FAC and that they had been taken to Obron-CARDINAL headquarters TIME . The servicemen from PERSON had refused to appear when summoned and could not be questioned ; the whereabouts of the CARDINAL teenagers therefore remained unknown . A special request had been forwarded to the military prosecutor ’s office .", "On DATE a lawyer from ORG wrote to ORG on the first applicant ’s behalf and asked him to ensure that a proper investigation would be conducted into the disappearance of the CARDINAL minors .", "On DATE an investigator from ORG requested the military prosecutor of military unit no . CARDINAL , based in GPE , to comply with the request of CARDINAL DATE and to ensure that PERSON , the commander of PERSON , and the other servicemen who had detained CARDINAL minors in FAC on DATE would be questioned .", "On DATE ORG for the north NORP area instructed the military prosecutor of military unit no . DATE to “ carefully verify the allegations of involvement by servicemen of Obron-CARDINAL in the boys’ disappearance ” .", "On DATE the military prosecutor of military unit no . CARDINAL replied to the first applicant that there were no reasons to conclude that servicemen stationed in the NORP district of ORG had been involved in the detention of her son and CARDINAL other men . The lists of detainees maintained by the military prosecutors , ORG ( ORG ) , ORG and ORG contained no reference to the CARDINAL missing persons . The contingent of PERSON ( military unit no . ORG ) had returned to their home station on expiry of their period of service in GPE , and measures were being taken to establish their whereabouts and to question them about the circumstances of the alleged detention .", "On DATE a lawyer from ORG wrote to ORG on the first applicant ’s behalf . She referred to the latest letter from the military prosecutor and asked why the requests to question the servicemen of Obron-CARDINAL had not been acted upon while they were still in GPE . The letter asked ORG to intervene and to ensure that a proper investigation would be carried out .", "On DATE the office of the Chief Military Prosecutor replied to PERSON , stating that the investigation was being carried out by the local prosecutor in GPE , to whom all requests should be forwarded . The involvement of military servicemen in the disappearance had not been established , and the military prosecutors therefore had no responsibility for the case .", "On DATE the military prosecutor of military unit no . CARDINAL informed the second applicant that his office was in charge of investigating the criminal case concerning the abduction of her son and CARDINAL others . He stated that she would be informed of any progress in the investigation .", "On DATE the military prosecutor of military unit no . CARDINAL forwarded the first applicant ’s complaint to ORG and asked that it be included in case file no . DATE , which had been forwarded to that office on DATE . The letter further stated that the investigation had established no connection between military servicemen and the abduction of the CARDINAL men , and had been closed under LAW [ absence of corpus delicti ] .", "At DATE and beginning of DATE the second applicant wrote to the NORP President , ORG , members of ORG , other public figures and the media . She stated the facts of her son ’s detention and disappearance and commented on the lack of progress in the investigation despite the fact that the names and positions of the persons who had detained the CARDINAL minors were known . She listed the authorities she had previously applied to with her requests . She referred to her family ’s ties with ORG and explained that her son could have had no links with the “ NORP ” , or illegal armed groups . She asked them to help her establish her son ’s whereabouts .", "On DATE ORG of GPE replied to the second applicant . The letter stated that following her request , which had been forwarded by ORG , criminal case no . DATE had been re - examined . The investigation in that case had been twice suspended under LAW of LAW for failure to identify the culprits . Each time these decisions had been quashed by a supervising prosecutor . In DATE the investigation had concluded that the kidnapping of ORG , PERSON and [ T. ] had been committed by the servicemen of PERSON , and the case had been transferred to the military prosecutors . On DATE a military investigator had closed the proceedings on the ground that no servicemen had been involved in the kidnapping , and on DATE the file had been transferred back to ORG . The letter further stated that the submissions of PERSON . PERSON and PERSON , commanders of the ORG unit and of Obron-CARDINAL respectively , had contained substantial discrepancies which the investigation had failed to clarify “ for a number of objective reasons ” . On DATE the decision of DATE by the investigator from ORG to suspend the investigation had been quashed and the case file had been forwarded to that office for further investigation .", "On DATE the second applicant received a similar reply signed by the acting Prosecutor of GPE , who added that he would personally supervise progress in the investigation .", "On DATE a criminal investigation ( no . DATE ) was instituted into the disappearance of the applicants’ sons on TIME DATE .", "The Government submitted that on DATE the second applicant had been granted the status of victim in the criminal proceedings ; on DATE the first applicant had been granted the same status . The second applicant had been questioned by an investigator from the prosecutor ’s office on DATE and DATE . She stated that on TIME her son , together with the first applicant ’s son , had gone to the house of their friend T. , who lived at QUANTITY Street in GPE , where they had intended to spend TIME . They had not returned home DATE . The first applicant and ORG mother made similar statements .", "On DATE an inspection carried out at QUANTITY FAC showed no evidence that a crime had been committed .", "On DATE the serviceman who had the second applicant ’s son ’s guitar submitted that he had found it in FAC on TIME .", "On DATE the military prosecutor ’s office of ORG ( UGA ) terminated the criminal proceedings against the officials of ORG on account of the lack of a corpus delicti .", "According to the ORG ’s submissions made prior to the ORG ’s decision as to the admissibility of the present application , ORG ’s neighbours ORG and CARDINAL officials of ORG and ORG who had been serving in PERSON during the relevant period were questioned in the course of the investigation . They had no information concerning the whereabouts of the applicants’ sons . Although investigative steps had been taken , no other witnesses had been found . The records of the units of ORG deployed in PERSON during the relevant period had been examined but no information had been found concerning the arrest of the applicants’ sons and PERSON The investigative authorities had also obtained information from other ORG bodies concerning special operations conducted in GPE and had taken other measures in order to establish the applicants’ sons’ whereabouts . Relevant inquiries had been made on CARDINAL , DATE and DATE , DATE and DATE , DATE , CARDINAL and DATE and CARDINAL DATE . However , it had not been established that representatives of the ORG authorities had been involved in the abduction of the applicants’ sons and T. They had not been held in detention facilities either .", "The following information concerning the progress of the investigation was provided by the Government in their submissions following the ORG ’s decision as to the admissibility of the present application .", "The preliminary investigation in criminal case no . DATE had been suspended a number of times , since the persons to be charged with the offence had not been identified . The applicants had been informed of all the decisions taken . After a number of suspensions and re - openings , the criminal investigation was resumed on DATE by ORG of LOC of PERSON ( ORG ) .", "On DATE the investigative authorities questioned investigator PERSON , who submitted that in the night of DATE T. , PERSON and PERSON had disappeared and their relatives had filed an application on that subject with ORG . Officers of the ORG unit presented documents to the effect that a joint group of the PERSON and intelligence unit of Obron-CARDINAL had detained CARDINAL persons who had not had their identification papers with them . The persons had been detained when installing a makeshift explosive device in FAC and taken to the premises of Obron-CARDINAL in ORG . There was no information to confirm that the persons detained had been T. , PERSON and PERSON . In order to establish the whereabouts of the applicants’ sons and PERSON had visited GPE on several occasions and had met with various officials .", "On DATE the head of the ORG of GPE replied that there was no information concerning T. , ORG and PERSON in either the register or the archives of the penitentiary system . Similar information was submitted by the penitentiary authorities of GPE .", "On DATE the deputy head of the ORG of GPE replied that the ORG had not conducted any operations aimed at detention of the applicants’ sons and T.", "On DATE the head of ORG of the ORG ( ROVD ) replied that he had no information about either the institution of criminal or administrative proceedings against ORG , PERSON and PERSON or their detention in the temporary detention centre of the ROVD .", "On DATE the head of criminal police of the Shatoy ROVD submitted that the CARDINAL disappeared persons had not been apprehended or placed in the temporary detention centre of the ROVD .", "DATE . On unspecified dates the heads of the penitentiary authorities of LOC , GPE , LOC and GPE replied that T. , PERSON and PERSON were not registered in detention facilities . According to replies from the prosecuting authorities of GPE at various levels , criminal proceedings had not been instituted against the applicants’ sons and T.", "On DATE ORG suspended the investigation on account of the failure to identify persons to be charged with the offence .", "On DATE the Prosecutor ’s Office of GPE quashed the above decision and resumed the investigation .", "On DATE the investigation was suspended on account of the failure to identify the culprits . The applicants were informed accordingly .", "On DATE the deputy prosecutor of ORG quashed the above decision and resumed the investigation .", "On DATE the investigating authorities questioned PERSON , who submitted that from DATE he had been seconded to GPE and did not remember that the CARDINAL men had been arrested . It is not clear who PERSON was .", "On DATE the senior investigator of ORG questioned as a witness an officer of the PERSON . The officer submitted that the order for the joint operation of the PERSON and Obron-CARDINAL in FAC had been given by the commander of the joint unit . CARDINAL officers of Obron-CARDINAL had taken part in the operation , however , he could not remember their names . In the course of the operation they had arrested CARDINAL men . Following the instructions of the officer on duty they had taken them to Obron-CARDINAL headquarters . They had been received by the head of intelligence of Obron-CARDINAL in the rank of captain . The witness together with other officers of the ORG had spent TIME at Obron-CARDINAL headquarters . In TIME the apprehended persons had been taken to GPE .", "On DATE the investigation was suspended on account of the failure to identify the culprits . The applicants were informed accordingly .", "On DATE ORG resumed the investigation . The applicants were notified accordingly .", "On an unspecified date ORG of ORG notified the investigating authorities that it had no information concerning the whereabouts of ORG , PERSON and PERSON .", "On DATE the investigator questioned the mother of ORG , who submitted that after her son ’s abduction she had spoken to the ORG privates , who had told her that they had apprehended CARDINAL men who had been transferred to GPE . PERSON , the commander of the search group , had also said that the arrested persons had been held in GPE .", "On DATE the investigator questioned PERSON , who submitted that she had known the PERSON family since DATE . She had learned about PERSON disappearance on DATE . She did not know who could have abducted him .", "On DATE the investigator questioned PERSON , who submitted that in DATE she had heard screaming outside and had gone out into the street . There she had learned from her neighbours about the abduction of PERSON and his friends .", "On DATE the investigator questioned PERSON , who made submissions similar to those of PERSON", "On DATE the investigator questioned PERSON , who submitted that in DATE she had learned from the second applicant that her son had been abducted together with CARDINAL other boys .", "On an unspecified date an investigator of ORG questioned the first applicant , who submitted that in DATE she had returned to ORG together with her son PERSON to obtain a new passport . In TIME of DATE T. and PERSON had come to their home and later had left for a walk together with her son . On DATE she had learned that her son had been abducted by unknown persons in camouflage uniforms .", "On DATE an investigator of ORG questioned PERSON , who submitted that since CARDINAL DATE he had been in charge of the search for missing persons . Officers of the PERSON had told him then that they had arrested CARDINAL young men and transferred them to officers of Obron-CARDINAL . After his repeated visits to the premises of Obron-CARDINAL , a guitar was handed over to him . He had passed it on to the second applicant .", "On an unspecified date an investigator of ORG of LOC of GPE questioned PERSON , who submitted that from DATE he had been seconded to ORG [ ORG DATE временная объединенная группировка органов и подразделений ORG ] located at FAC in GPE . He had no information concerning the abduction of T. , PERSON and PERSON in TIME of CARDINAL DATE .", "On DATE the investigation was suspended on account of the failure to identify the culprits . The applicants were informed accordingly .", "DATE . On DATE the deputy prosecutor of LOC of ORG quashed the above decision and resumed the investigation . The applicants and T. ’s mother were informed accordingly .", "According to the Government , the possible involvement of servicemen of Obron-CARDINAL in the abduction of ORG , PERSON and PERSON had been investigated . To that end , the case file had been sent to the military prosecutor ’s office . However , neither the victims nor the witnesses questioned had stated from whom exactly they had learned that T. , ORG and PERSON had been “ apprehended ” . Therefore , it appeared impossible to establish the exact circumstances of the event . Officers of the PERSON confirmed their previous statements that on DATE , together with servicemen of Obron-CARDINAL , they had apprehended CARDINAL young men aged DATE in FAC in ORG and had taken them to Obron-CARDINAL headquarters . However , it had not been established by the investigation that the CARDINAL men were the applicants’ sons and T. Since the involvement of servicemen in the abduction of NORP , PERSON and PERSON had not been confirmed , the investigation was suspended . The applicants and T. ’s mother were informed accordingly , however , they did not appeal against the suspension .", "According to the first applicant , following her request for information on the progress of the investigation of CARDINAL DATE , on DATE the prosecutor of LOC of ORG unofficially provided her with a print - out of the outline of the investigative measures on CARDINAL pages , the relevant parts of which read as follows :", "“ Criminal case no . DATE was opened on DATE ... into abduction of [ T. ] , PERSON and PERSON in TIME of DATE TIME in FAC in GPE ... [ by ] unidentified persons in camouflage uniform ...", "Commander of [ the Pskov OMON ] , [ P. I. ] , who was questioned on this subject , submitted that on DATE at TIME servicemen of PERSON arrived at their location and informed them about the need to lie in ambush in FAC where members of illegal armed groups used to install explosive devices ... most frequently . ... [ E]ight servicemen proceeded to the street indicated . There they split into CARDINAL groups of CARDINAL , concealed themselves and set up an ambush on both sides of the street ... In a while a group of CARDINAL young men passed by . TIME later the second group informed them by the portable radio transmitter that they had apprehended those young men . When [ PERSON ] approached them with his group , he noticed the CARDINAL young men lying on the ground with an artillery shell ... and a wire reel near them . After the arrest they had taken the young men to the Obron-CARDINAL headquarters and transferred [ them ] to the head of intelligence of Obron-CARDINAL whose name was PERSON . The latter told them that he had reported the arrest to GPE . The apprehended [ persons ] did not have identification papers with them . [ PERSON ] had no information about their religious affiliations .", "Similar statements were made by officers of [ the Pskov OMON ] [ ORG ] , [ A. ] and [ K - v ] .", "According to the report of [ PERSON . PERSON ] , the commander of [ the PERSON ] , ... in TIME DATE officers of [ the PERSON ] together with Obron-CARDINAL in the course of a special operation in FAC apprehended CARDINAL persons who had with them the components of an explosive device . They took the persons to Obron-CARDINAL headquarters and transferred [ them ] to a special unit . In TIME of DATE [ officers of ] Obron-CARDINAL took [ the apprehended persons ] to “ PERSON ... From the report of the head of Obron-CARDINAL headquarters [ PERSON . PERSON ] knew that the apprehended persons had been transferred to GPE .", "The head of Obron-CARDINAL headquarters , [ Kal - v . ] , when questioned denied that his servicemen had apprehended and sent to PERSON anybody in the night of DATE . [ He also denied that ] an ambush in FAC had been set up that night .", "[ The second applicant submitted that ] ... official of the Leninskiy VOVD [ temporary office of the interior ] , [ PERSON ] , had told them that their sons had been apprehended by servicemen of Obron-CARDINAL and taken to GPE . [ PERSON ] also handed over to them the guitar of PERSON which , according to him , had been found at Obron-CARDINAL headquarters .", "[ T. ’s mother and the first applicant ] made similar statements .", "[ PERSON ] submitted that on DATE he formed a part of ... a group that searched for PERSON and others who had disappeared in TIME DATE . ... [ T]hey established that on DATE PERSON , PERSON and [ T. ] had been detained by officers of [ the PERSON ] and transferred to servicemen of Obron-CARDINAL . In DATE [ ORG ] seized from private [ O. ] a guitar which belonged to ORG and handed it over to his mother . The latter recognised her son ’s guitar . Officers of the PERSON explained to [ PERSON ] that the young men had been apprehended in FAC [ because they had an ] explosive device . The servicemen refused to provide any explanations in this respect .", "Officers of [ the Pskov OMON ] [ A. ] , [ K - v ] , [ ORG ] and [ G - v ] confirmed that together with servicemen of ... PERSON in TIME DATE they had apprehended CARDINAL [ persons ] and taken them to Obron-CARDINAL headquarters . They had not known the personal particulars [ of the persons concerned ] , and the apprehended persons had not had their identification papers with them . However , while they were being questioned witness [ K - v ] noted the surnames of the apprehended persons – [ T. ] , PERSON and PERSON . They had learned from the servicemen that the apprehended persons had had an explosive device . They had provided explanations concerning the circumstances of the arrest of CARDINAL persons in TIME DATE to ORG ...", "Witness [ PERSON ] ( PERSON ) ... submitted that ... since DATE he had been serving in military unit no . CARDINAL ... From DATE he had been seconded to ORG as a head of [ intelligence unit ] . Their unit , [ Obron-CARDINAL ] had been located not far from FAC ... Because of the nature of his post he had always remained at headquarters , had not planned any special operations , and had not previously heard the surnames PERSON , PERSON and [ T. ] ...", "Taking into account the evidence obtained and having sufficient grounds to believe that servicemen of Obron-CARDINAL had been involved in the abduction of PERSON , [ T. ] and PERSON , on DATE ORG of GPE transferred the present criminal case to ORG of military unit no . CARDINAL for further investigation .", "The investigation conducted by the military prosecutor ’s office established the following .", "According to the inspection report of the register of military actions of Obron-CARDINAL ... the entries of CARDINAL , DATE , DATE and DATE contained no information that any persons had been arrested ...", "According to the extract of the register of military actions of military unit no . CARDINAL on _ MONEY ( DATE is not indicated , the digit before CARDINAL is missing ... ) , in the course of [ an intelligence operation ] in FAC the mine clearing group had found a mine . The mine was destroyed . A joint operation on passport check had been conducted DATE [ it is not clear TIME ] ... CARDINAL persons had been apprehended upon suspicion of participation in an illegal armed group .", "[ CARDINAL servicemen of military unit no . CARDINAL , including [ PERSON ] , submitted that they did not know anything about the arrest of PERSON , PERSON and [ T. ] . CARDINAL of the servicemen added that it had not been within the responsibilities of their unit to effect arrests and that they had not conducted any joint operations with ORG . ]", "[ B. ] , the commandant of military unit no . ORG ’s headquarters submitted that from DATE he had served as a commander of the military operational reserve of military unit no . CARDINAL in ORG ] . The responsibilities of [ VOrez ] had included accompanying officials of ORG during passport checks and “ sweeping ” operations [ зачистка ] . Effecting arrests had not been within their responsibilities . Every special operation had been organised according to a military instruction from the headquarters in GPE . The instructions had been kept at [ VOrez ’s archives ] . Results of the special operations had been reflected in the register of military actions ... Not less than fifteen servicemen had participated in every such operation together with a similar number of officials of ORG . His servicemen had never taken part in an ambush ... [ The PERSON ] had been located not far from them . [ However , [ B. ’s ] ] servicemen had never interacted with it . He had never met [ PERSON . PERSON ] . No OMON officers had ever spent TIME at his unit ’s headquarters . In DATE an investigator of ORG of NORP origin and a woman of NORP origin had arrived at his unit . They had alleged that his servicemen had apprehended CARDINAL young men on DATE , which had been proved by a guitar [ at unit headquarters ] . He offered him access to all the premises of the unit , but they had refused [ to examine them ] . However , the investigator had seized a guitar from a serviceman [ B. did not remember his surname ] , which , according to the woman , had belonged to her son . According to the serviceman , he had found this guitar in the street in the course of engineering intelligence ... [ B. ’s ] servicemen had not arrested anybody with an explosive device on DATE and had not taken anybody to their headquarters either ... After [ B. ] had seen the report of the commander of [ the PERSON ] [ PERSON . PERSON ] concerning the arrest together with servicemen of Obron-CARDINAL of QUANTITY persons in TIME DATE , [ B. ] said that the information contained in the report was not accurate .", "The inspection report of the register of encrypted telegrams from [ VOrez ] of military unit no . CARDINAL contained no information concerning the arrest of CARDINAL persons by servicemen on DATE ...", "Following the results of the preliminary investigation , on DATE the military prosecutor ’s office suspended the present criminal case ... in the part related to involvement in the offence of servicemen of [ VOrez ] of military unit no . CARDINAL and on DATE transferred the case to ORG of GPE .", "In the course of the additional investigation ORG instructed ORG of GPE to take additional investigative steps with officers of [ the PERSON ] , who had apprehended the applicants’ sons , so as to clarify discrepancies between [ their ] statements and those of Obron-CARDINAL servicemen .", "Witnesses [ P. I. ] , [ PERSON . PERSON ] and [ D. I. ] confirmed their previous statements as well as the fact that on DATE in FAC in ORG they had arrested together with servicemen of Obron-CARDINAL CARDINAL young men of [ NORP ] origin aged DATE . [ PERSON . G ] also confirmed the contents of his report concerning the arrest in the course of [ the operation described ] .", "[ Neither the Ministry of the ORG nor other law - enforcement agencies ] had any information on the applicants’ sons whereabouts . Requests had also been sent to [ detention facilities and law - enforcement agencies of other regions ] , however , it appeared impossible to establish the whereabouts of the disappeared persons . The investigating authorities had no information that the applicants had visited [ detention facilities ] in the north NORP area .", "The preliminary investigation in the criminal case had been suspended on numerous occasions , most recently on DATE , on account of the failure to identify persons to be charged with the offence ...", "On DATE the decision to suspend the investigation ... was quashed , the investigation was resumed . ... [ A]t present the investigation is under way . ”", "On DATE the second applicant filed a complaint with ORG of PERSON concerning the inactivity of ORG and the prosecutor ’s office of military unit no . CARDINAL .", "On DATE ORG of ORG dismissed the complaint . No appeal was lodged against this decision and on DATE it entered into force . According to the second applicant , she was not provided with a copy of the decision and had therefore been unable to lodge an appeal .", "NORP Despite specific requests made by ORG on several occasions , the Government did not submit copies of any documents from the file in criminal case no . DATE . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings . At the same time , the Government suggested that a ORG delegation could have access to the file at the place where the preliminary investigation was being conducted , with the exception of “ the documents [ disclosing military information and the personal particulars of the witnesses ] , and without the right to make copies of the case file and transmit it to others ” .", "For a summary of relevant domestic law see PERSON and PERSON GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ." ]

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

[]

[]

[ "13", "3" ]

[]

[]

[ "The applicant is a NORP national who was born in DATE and lives in PERSON , GPE , in GPE .", "The eastern provinces of pre - war GPE were ( and in dated usage still are ) called “ LOC ” ( “ GPE ” ) . They included large areas of DATE GPE and GPE and territories around GPE in what is now GPE .", "Later , when after the Second World War Poland 's eastern border was fixed along LOC ( whose central course formed part of the PERSON line ) , the “ LOC ” acquired the name of “ territories beyond the LOC ” ( “ ziemie zabużańskie ” ) .", "Those regions had been invaded by the GPE in DATE .", "Following agreements concluded between ORG ( PERSON ) and the former NORP ORG of GPE ( on DATE ) , GPE ( on DATE ) and GPE ( on DATE ) ( “ the NORP Agreements ” – “ umowy republikańskie ” ) , the NORP State took upon itself the obligation to compensate persons who were “ repatriated ” from the “ territories beyond the LOC ” and had to abandon their property there . Such property is commonly referred to as “ property beyond LOC ” ( “ mienie zabużańskie ” ) .", "NORP The NORP government estimated that DATE CARDINAL persons were “ repatriated ” under the provisions of ORG . At the oral hearing , the parties agreed that the vast majority of repatriated persons had been compensated for loss of property caused by their repatriation .", "In that connection , the ORG also stated that , on account of the delimitation of the NORP - Soviet State border DATE and despite the fact that GPE was “ compensated ” by the ORG with former NORP lands east of the PERSON - Neisse line – GPE suffered a loss of territory amounting to PERCENT .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "After the Second World War , the applicant 's grandmother was repatriated from GPE ( now GPE in GPE ) .", "On DATE ORG ( PERSON ) in GPE issued a certificate attesting that she had owned a piece of real property in GPE and that the property in question consisted of CARDINAL sq . m of land and a house with a surface area of CARDINAL sq . m.", "On DATE ORG ( Sąd Rejonowy ) gave a decision declaring that the applicant 's mother had inherited the whole of her late mother 's property .", "On DATE the applicant 's mother asked the mayor of PERSON to enable her to purchase the so - called right of “ perpetual use ” ( prawo użytkowania wieczystego ) of land owned by ORG ( see also paragraph CARDINAL below ) .", "In DATE an expert from ORG made a report assessing the value of the property abandoned by the applicant 's grandmother in GPE . The actual value was estimated at CARDINAL old Polish zlotys ( PLZ ) but , for the purposes of compensation due from the ORG , the value was fixed at PLZ CARDINAL,CARDINAL .", "On DATE the mayor of ORG issued a decision enabling the applicant 's mother to purchase the right of perpetual use of a plot of CARDINAL sq . m situated in Wieliczka . The fee for the right of perpetual use was PLZ CARDINAL per year and the duration was set at a minimum of DATE and a maximum of DATE . The total fee for use , which amounted to PLZ CARDINAL ( PLZ CARDINAL x DATE ) was offset against the compensation calculated by the expert in DATE .", "In DATE an expert commissioned by the government established that the value of this transaction corresponded to PERCENT of the compensation to which the applicant 's family was entitled ( see also paragraph CARDINAL below ) .", "The applicant 's mother died on DATE . On DATE ORG gave a decision declaring that the applicant had inherited the whole of his late mother 's property .", "NORP In DATE , on a date that has not been specified , the applicant sold the property that his mother had received from the ORG in DATE .", "On DATE the applicant asked ORG ( Urząd Rejonowy ) to grant him the remainder of the compensation for the property abandoned by his grandmother in GPE . He stressed that the value of the compensatory property received by his late mother had been significantly lower than the value of the original property .", "In a letter of DATE , the town planning division of ORG informed the applicant that his claim had been entered in the relevant register under no . R/CARDINAL/CARDINAL . The relevant part of that letter read as follows :", "“ We would like to inform you that at present there is no possibility of satisfying your claim . ... LAW of ORG DATE [ Ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości ] became , for all practical purposes , a dead letter with the enactment of ORG of DATE . [ The enactment of that Act ] resulted in land being transferred from the [ GPE branch of the ] ORG to GPE . Consequently , the Head of ORG who , under the applicable rules , is responsible for granting compensation , has no possibility of satisfying the claims submitted . It is expected that new legislation will envisage another form of compensation . We should accordingly inform you that your claim will be dealt with after a new statute has determined how to proceed with claims submitted by repatriated persons . ”", "On DATE ORG ( ORG ) informed the applicant that ORG had no land for the purposes of granting compensation for property abandoned in the territories beyond LOC .", "On DATE the applicant filed a complaint with ORG ( PERSON ) , alleging inactivity on the part of the government in that it had failed to introduce in ORG legislation dealing with claims submitted by repatriated persons . He also asked for compensation in the form of ORG bonds .", "On DATE ORG rejected the applicant 's complaint . It found no indication of inactivity on the part of the ORG authorities because “ the contrary transpired from the fact that the applicant had received replies from ORG and ORG Office ” .", "On DATE , in connection with the entry into force of the ORG 's Ordinance of DATE ( see also paragraphs QUANTITY below ) , ORG transmitted the applicant 's request of DATE for the remainder of the compensation , and the relevant case file , to the mayor ( ORG ) of ORG . Meanwhile , following a reform of the local administrative authorities , the former GPE ( Województwo GPE ) DATE in which the Wieliczka district is situated DATE had been enlarged and renamed “ GPE ” ( PERSON ) .", "On DATE the mayor of PERSON organised a competitive bid for property situated in PERSON being sold by ORG . The bid was entered by CARDINAL persons , all of whom were repatriated persons or their heirs . The applicant did not participate in the auction .", "On DATE the ORG ( PERSON ) , acting on behalf of repatriated persons , made an application under LAW of the LAW , read in conjunction with LAW , to ORG ( PERSON ) , asking for legal provisions that restricted the possibility of satisfying their entitlements to be declared unconstitutional ( see also paragraphs DATE , DATE and DATE below ) .", "On DATE the Constitutional Court heard , and granted , the ORG 's application ( see also paragraphs CARDINAL below ) . ORG judgment took effect on DATE .", "On DATE ORG issued a communiqué , which was put on its official website and which read , in so far as relevant , as follows :", "“ ORG , in its judgment of DATE , declared that the provisions relating to the realisation of the LOC claims by , inter alia , ORG were unconstitutional .", "However , the implementation of the court 's judgment requires that LAW , LAW DATE on the administration of certain portions of ORG property and ORG , as well as LAW DATE on the reconstruction , technical modernisation and financing of the NORP army in DATE , be amended .", "It is also necessary to amend LAW of DATE on income tax from legal persons , in respect of the proceeds received by the agency upon satisfying the LOC claims .", "In the circumstances , ORG will be able to organise auctions for the sale of immovable property after the amendments to the existing legislation have been made .", "ORG will be advertised in the press ... and on the [ agency 's ] website . ”", "According to information made available on the agency 's website , in DATE it had in its possession CARDINAL categories of property . The first was immovable property no longer used for any military purposes , which was normally sold at auctions . It comprised CARDINAL hectares of land and CARDINAL buildings with a total surface area of CARDINAL sq . m. This property included military airports , testing grounds , rifle ranges , hospitals , barracks , offices , recreation and sports centres , buildings designated for social and cultural activities and various other buildings ( fuelling stations , workshops , warehouses , etc . ) . The second category was property that was only temporarily not used by the army . It comprised QUANTITY of land and buildings with a total surface area of QUANTITY m.", "On DATE ORG ( NORP PERSON Rolnej PERSON ) , a body which at that time administered ORG ( PERSON Rolnej PERSON ) ( see also paragraph QUANTITY below ) , issued a similar communiqué , which was put on its official website and which read as follows :", "“ On DATE ORG judgment of DATE concerning the constitutionality of the provisions governing compensation for the LOC property came into force .", "As a consequence of the ORG 's judgment , it is necessary to amend the provisions relating to the land administration . The judgment does not by itself create a new legal regime and can not constitute a basis for offsetting the value of the property abandoned outside the ORG 's border against the price of ORG agricultural property . The principles , conditions and procedure in that respect should therefore be determined . Such actions have already been taken by ORG and ORG for the ORG .", "In the circumstances , this agency will desist from organising auctions for the sale of immovable property held among its resources , except for small plots of agricultural property .", "The agency 's decision is inspired by the need to ensure that the LOC claimants have their claims satisfied on conditions that are equal for all claimants . ”", "By DATE neither of the above - mentioned agencies had resumed auctions . On the date of adoption of this judgment , ORG website still contained DATE unchanged – communiqué of DATE on the suspension of auctions .", "On DATE , DATE after the entry into force of new legislation on LOC claims ( see paragraphs CARDINAL - CARDINAL below ) , ORG ( ORG ) , a body which had in the meantime replaced ORG ( see also paragraph CARDINAL below ) removed the communiqué of DATE from its website and added an announcement entitled “ Information for the LOC people ” ( “ LOC zabużan ” ) , providing a detailed explanation of the operation of the new statute .", "Meanwhile , in DATE and DATE , during the process of preparing a bill designed to settle the “ LOC claims ” ( “ roszczenia zabużańskie ” ; hereafter “ the Government Bill ” – see also paragraphs CARDINAL - CARDINAL below ) , the government estimated the number of claimants and the value of the claims . According to the government , there were CARDINAL registered claims , of which CARDINAL were verified and regarded as meeting the statutory conditions . The registered claims were valued at CARDINAL new NORP zlotys ( ORG ) . There were also CARDINAL unverified claims pending registration , of which CARDINAL were likely to be registered . The anticipated value of the unverified claims was MONEY . The anticipated total number of entitled persons was CARDINAL . As the parliamentary debate over the Government Bill – a debate which was widely discussed throughout the NORP media – progressed , the number of LOC claims started to grow , since many new claims were being registered .", "The statistical reports prepared by the government , in particular the Ministry for the ORG ( PERSON ) and ORG ( PERSON ) , have to date not addressed the question of how many of the LOC claimants have ever obtained any compensation and , if so , whether it was full or partial , and how many of them have not yet received anything at all .", "The idea of keeping a register of ORG claims emerged in the course of the preparation of the Government PERSON , and such a register is to be kept in the future . Nevertheless , the need to collect the relevant data had already been perceived by the Minister for Infrastructure in DATE , when he replied to a question by PERSON , a member of parliament , concerning , in the MP 's words , “ the final discharge of the NORP ORG 's obligations towards persons who , after the Second World War , had abandoned their immovable property beyond the eastern border ” . In his reply , the Minister stated , inter alia :", "“ In reply to the question relating to the number of unsatisfied claims , it has to be said that it was estimated by ORG [ PERSON ] at DATE that there were CARDINAL [ such claims ] . At present it is very difficult to make such an estimation . ... In practice , every legal successor [ of a LOC claimant ] could , and can , obtain a certificate – at present , a decision – [ confirming the right to ] a share in the abandoned property . What should be the criteria according to which the number of satisfied and unsatisfied claims is to be estimated ? Should it be the number of applications made , including [ several ] applications by legal successors regarding CARDINAL property abandoned by CARDINAL owner ( testator ) , or should it be the number of properties abandoned beyond the ORG 's borders ?", "It is also difficult to estimate the number of persons whose entitlement has been satisfied , especially as the entitlement can be enforced throughout the country and it often happens that it is satisfied partially in different provinces until it has been fully settled . This situation creates conditions in which the entitled persons may abuse their rights DATE a fact of which governors and mayors have notified us . They accordingly suggest that a register ... of the certificates issued confirming the entitlement to ... compensatory property be kept . At present , however , there is no single , comprehensive system for the registration of certificates and decisions entitling claimants to [ compensatory property ] .", "Accordingly , the answer to the deputy 's question as to the form in which the [ LOC claims ] are to be satisfied and as to the possible legal solutions depends on reliable information on the number of unsatisfied claims . If it emerged that the number was significant and that not all claims could be satisfied under the applicable laws , other legislative solutions would have to be found DATE which , however , would be particularly difficult in view of the economic and financial problems of the ORG . ”", "On DATE the Government produced a valuation report prepared by an expert valuer commissioned by them . That report had been drawn up on DATE . The value of the property that the applicant 's grandmother had had to abandon was estimated at PLN CARDINAL,CARDINAL . The expert stated that the applicant 's family had so far received PERCENT of the compensation due .", "On DATE the mayor of ORG organised a competitive bid for property situated in PERSON and PERSON , in the GPE , that was being sold by ORG . The reserve prices were ORG CARDINAL,CARDINAL and CARDINAL respectively . The bid was entered by several LOC claimants . The first property was sold for ORG , the second for ORG CARDINAL,CARDINAL . The applicant did not participate in those auctions .", "On DATE , by virtue of the Law of DATE on offsetting the value of property abandoned beyond the present borders of the NORP State against the price of ORG property or the fee for the right of perpetual use ( LOC o zaliczaniu na poczet ceny sprzedaży albo opłat z tytułu użytkowania wieczystego nieruchomości PERSON wartości nieruchomości pozostawionych poza obecnymi granicami PERSON – “ the DATE Act ” ) , the ORG 's obligations towards persons who , like the applicant , have obtained some compensatory property under the previous statutes are considered to have been discharged ( see also paragraph CARDINAL below ) .", "On DATE CARDINAL members of parliament from the opposition party , “ Civic Platform ” ( Platforma Obywatelska ) , applied to ORG , challenging a number of the provisions of DATE ( see also paragraph CARDINAL below ) .", "The NORP Agreements ( see also paragraph CARDINAL above ) were each drafted in a similar way . LAW laid down rules concerning both the kind and the amount of property that repatriated persons could take with them upon evacuation , and obliged the Contracting Parties to return to them the value of the property which they had had to abandon .", "Article CARDINAL of the Agreement of DATE between ORG and the government of the NORP GPE on the evacuation of NORP citizens from the territory of the GPE and of the NORP population from the territory of GPE ( GPE pomiędzy ORG a ORG Republiki Rad dotyczący ewakuacji obywateli polskich z terytorium GPE i ludności i ukraińskiej z terytorium GPE – “ the relevant NORP Agreement ” ) provided , in so far as relevant , as follows :", "“ CARDINAL . Evacuated persons shall be allowed to take with them clothing , footwear , linen , bedding , foodstuffs , household goods , farming inventory stock , harnesses and other articles for household and agricultural use , up to a total weight of QUANTITY per family , as well as any cattle and poultry belonging to the evacuated farm .", "Persons with specialised professions , such as workmen , craftsmen , doctors , artists and scholars , shall be accorded the right to take with them objects needed in the exercise of their professions .", "The following may not be taken upon evacuation :", "( a ) NORP cash , banknotes and gold and silver coins of any type , with the exception of NORP banknotes to a maximum amount of MONEY per person , or NORP currency to a maximum amount of MONEY per person ;", "( b ) NORP gold and platinum in alloy , powder or scrap form ;", "( c ) precious stones in unworked form ;", "( d ) works of art and antiques whenever they constitute a collection , or even as individual items , unless they are the evacuated person 's family property ;", "( e ) firearms ( with the exception of hunting rifles ) and military equipment ;", "( f ) photographs ( other than personal photographs ) , charts and maps ;", "( g ) automobiles and motorcycles ;", "( h ) furniture , whether by rail or by motor vehicle , because of the transport problems caused by the war .", "...", "The value of movable belongings left behind upon evacuation , and also of immovable property , shall be returned to the evacuated person on the basis of insurance valuations , in accordance with the applicable laws in GPE and in the NORP GPE , as the case may be . In the absence of an insurance valuation , the value of movable and immovable property shall be assessed by ORG of the Parties . The Contracting Parties shall undertake to ensure that town and village houses vacated as a result of resettlement are made available to resettled persons on a priority basis . ”", "On DATE the government of GPE and the governments of ORG , the GPE , the GPE Soviet GPE and the Lithuanian Soviet Socialist Republic concluded an agreement on the mutual settlement of accounts in connection with the evacuation of population groups and the delimitation of the NORP - Soviet State border ( Umowa między PERSON , z jednej strony i ORG Republik Radzieckich , PERSON , PERSON Republiki Radzieckiej i ORG PERSON , z drugiej strony , o wzajemnych rozliczeniach , wynikłych w związku z ewakuacją ludności i delimitacją polsko - radzieckiej granicy państwowej CARDINAL “ the DATE LAW ) . LAW pact provided :", "“ With a view to the complete and definitive mutual settlement of accounts for movable and immovable property , agricultural products and seed left on the territories of GPE and of the GPE by persons evacuated and resettled in connection with the delimitation of the NORP - Soviet State border , the Government of GPE undertake to pay the Government of the GPE the sum of CARDINAL ( CARDINAL ) MONEY . ”", "DATE to the present day , NORP law has provided that persons repatriated from the territories beyond LOC are entitled to have the value of the property abandoned as a result of the Second World War offset either against the fee for the right of perpetual use or against the price of immovable property purchased from ORG .", "That provision has been repeated in several statutes , starting with the Decree of DATE on the transfer from the ORG of non - agricultural property in GPE and the former GPE of Gdańsk ( Dekret o przekazywaniu przez CARDINAL mienia nierolniczego na obszarze PERSON i b. PERSON ) .", "The so - called “ LOC ” ( “ PERSON ” ) were former NORP territories east of FAC , with which – upon PERSON 's proposal – the victorious Allies compensated the NORP for the “ territories beyond the LOC ” taken away from them by the former GPE .", "Under the policy pursued at that time by the authorities , the “ LOC ” and Gdańsk , after the expulsion of NORP residing there , were intended for the accommodation of NORP citizens “ repatriated ” from “ beyond the LOC ” , that is , from the territories beyond the PERSON line . The repatriated persons had priority in purchasing land .", "Further decrees and statutes were enforced DATE .", "In DATE , however , the authorities started to consider the possibility of enacting a single statute dealing with all forms of restitution of property , including claims for compensation for property abandoned by repatriated persons ( see also paragraphs CARDINAL below ) .", "Ultimately , a statute exclusively relating to LOC claims ( DATE ) came into force on DATE ( see also paragraph CARDINAL above and CARDINAL below ) .", "From DATE to CARDINAL DATE the rules governing the administration of land held by ORG and municipalities were laid down in ORG of DATE ( “ LAW DATE ” ) .", "Section CARDINAL of this Act dealt with entitlement to compensation for property abandoned in the territories beyond LOC . The relevant parts of the version applicable from DATE to DATE read as follows :", "“ ( CARDINAL ) Persons who , in connection with the war that began in DATE , abandoned real property in territories which at present do not belong to the NORP State and who , by virtue of international treaties concluded by the ORG , are to obtain equivalent compensation for the property they abandoned abroad , shall have the value of the real property that has been abandoned offset either against the fee for the right of perpetual use of land or against the price of a building plot and any houses , buildings or LOC situated thereon .", "...", "( CARDINAL ) In the event of the death of an owner of real property abandoned abroad , the entitlement referred to in subsection ( CARDINAL ) shall be conferred jointly on all his heirs in law or on the one [ heir ] designated by the entitled persons .", "( CARDINAL ) The offsetting of the value of real property abandoned abroad , as defined in subsection ( CARDINAL ) , shall be effected upon an application from a person entitled to it ... ”", "Detailed rules were set out in the ORG 's Ordinance of DATE ( as amended ) on the offsetting of the value of real property abandoned abroad against the fees for perpetual use or against the price of a building plot and buildings situated thereon ( ORG PERSON w sprawie zaliczania wartości mienia nieruchomego pozostawionego za granicą na poczet opłat za użytkowanie wieczyste lub na pokrycie ceny sprzedaży działki budowlanej i położonych na niej budynków – “ the DATE LAW ) .", "The relevant part of paragraph CARDINAL of the DATE Ordinance provided as follows :", "“ If the value of the property [ abandoned abroad ] exceeds the price of the real property that has been sold ... , the outstanding amount can be offset against the fee for the right of perpetual use , or against the price of an industrial or commercial plot of land and any commercial or small - business establishments , buildings designated for use as workshops or ateliers , holiday homes or garages situated thereon . ”", "Paragraph CARDINAL provided that a first - instance body of the local ORG administration that was competent to deal with town and country planning should issue the decisions on offsetting the value of property abandoned abroad . Paragraph CARDINAL laid down detailed rules relating to the valuation of such property .", "On DATE LAW DATE was repealed and LAW of DATE ( LOC o gospodarce nieruchomościami – “ LAW CARDINAL ” ) came into force .", "The obligation to compensate repatriated persons was laid down in section CARDINAL , which was phrased in similar terms to section CARDINAL of the repealed DATE Act . The relevant part of section CARDINAL provided as follows :", "“ ( CARDINAL ) Persons who , in connection with the war that began in DATE , abandoned real property in territories which at present do not belong to the NORP State and who , by virtue of international treaties concluded by the ORG , were to obtain equivalent compensation for the property abandoned abroad , shall have the value of the real property that has been abandoned offset against the fee for the right of perpetual use of land or against the price of a building plot and the ORG - owned buildings or LOC situated thereon .", "( CARDINAL ) If the value of the real property that has been abandoned [ abroad ] exceeds the value of real property acquired by way of the equivalent compensation referred to in subsection ( CARDINAL ) , the outstanding amount may be offset against the fees for perpetual use , or against the price of a plot of land and a building designated for commercial purposes , or for use as an atelier , holiday home or garage , or of a plot of land designated for any of the above purposes .", "...", "( CARDINAL ) The offsetting of the value of real property defined in subsection ( CARDINAL ) shall be effected in favour of the owner of the property in question or a person designated by him who is his heir at law .", "( CARDINAL ) In the event of the death of the owner of real property abandoned abroad , the entitlements referred to in subsection ( CARDINAL ) shall be conferred jointly on all his heirs or on the one [ heir ] designated by the entitled persons . ”", "However , section CARDINAL stated :", "“ Sections CARDINAL of this PERSON shall not apply to property held by ORG , unless the provisions relating to the administration of those ORG state otherwise . ”", "On DATE the ORG put the issue of the constitutionality of sections CARDINAL ) and CARDINAL of LAW DATE before ORG ( see also paragraph CARDINAL above and paragraphs CARDINAL , DATE and DATE below ) .", "The procedure for the implementation of section CARDINAL of LAW was laid down in the ORG 's Ordinance of CARDINAL DATE on the procedure for offsetting the value of real property abandoned abroad against the price of a title to real property or against the fees for perpetual use , and on the methods of assessing the value of such property ( as amended ) ( ORG PERSON w sprawie sposobu zaliczania wartości nieruchomości pozostawionych za granicą na pokrycie ceny sprzedaży nieruchomości lub opłat za użytkowanie wieczyste oraz sposobu ustalania wartości tych nieruchomości DATE “ the DATE LAW ) .", "Paragraph CARDINAL(CARDINAL ) of the DATE Ordinance provided that the offsetting in question had to be effected on an application from the entitled person . The application had to be made to the mayor of the district in which the person resided . The mayor was to keep the register of claims submitted by repatriated persons .", "Pursuant to paragraph CARDINAL ) , the mayor had , within DATE , to issue a decision determining the value of the real property that had been abandoned abroad . Once such a decision was taken , the authorities responsible for handling claims submitted by repatriated persons could not refuse to effect the offsetting ( paragraph CARDINAL ) .", "In practice , the acquisition of title to compensatory property or of the right of perpetual use could be enforced only through participation in a competitive bid organised by the relevant public authority . Repatriated persons were not given priority in purchasing land from the ORG .", "Transitional provisions , in particular paragraph CARDINAL of the DATE Ordinance , stated that proceedings that had been initiated under the previous rules and not terminated were to be governed by this new GPE .", "A very significant reduction in ORG land resources was brought about by legislative measures aimed at reforming the administrative structure of the ORG .", "ORG ( introductory provisions ) of CARDINAL 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 municipalities and transferred to them powers that had previously been exercised solely by the local ORG administration . That included the relinquishment of control over public land and the transfer of the ownership of most of ORG land to municipalities .", "Pursuant to section CARDINAL ) of LAW , ownership of land which had previously been held by ORG and which was within the administrative territory of a municipality was transferred to the municipality .", "As the LOC claimants could only enforce their entitlement vis - à - vis the State property and not that of local self - government entities , this resulted in a shortage of land for satisfying those claims .", "Until DATE , repatriated persons could seek to obtain compensatory property from ORG ( PERSON Rolnej PERSON ) under the provisions of the Law of DATE on the administration of ORG agricultural property ( LOC o gospodarowaniu nieruchomościami rolnymi PERSON – “ the DATE LAW ) . However , on that date , with the entry into force of the LAW of DATE on amendments to the PERSON on the administration of ORG agricultural property and to other statutes ( LOC o zmianie ustawy o gospodarowaniu nieruchomościami rolnymi PERSON oraz o zmianie niektórych ustaw – “ the DATE LAW ” ) , that possibility was excluded .", "Section CARDINAL of the DATE Amendment was phrased as follows :", "“ As long as the forms of compensation for loss of property and the rules for the restitution of property to persons who , under LAW of LAW DATE , have applied for the offsetting of the value of real property abandoned abroad in connection with the war that began in DATE , have not been determined in an autonomous statute , no such offsetting shall be effected against the price of property held by ORG . ”", "On DATE the ORG put the issue of the constitutionality of LAW before ORG ( see also CARDINAL above and CARDINAL and CARDINAL below ) .", "That law ( LOC o zagospodarowaniu nieruchomości PERSON przejętych od wojsk GPE – “ the DATE LAW ) came into force on DATE . Pursuant to section CARDINAL read in conjunction with section CARDINAL , repatriated persons must be given priority in acquiring such property .", "At the oral hearing , the Government admitted that , in reality , the property resources left by the army of GPE had already been exhausted .", "The aforementioned law ( LOC o gospodarowaniu niektórymi składnikami mienia PERSON oraz o Agencji Mienia Wojskowego – “ the CARDINAL LAW ” ) , which came into force on DATE , deals with the administration of military property belonging to the ORG , including land , industrial property , hotels , dwellings and commercial LOC . ORG may organise competitive bids for the sale of real property .", "Until DATE , under the general provisions of the CARDINAL Act , repatriated persons could seek to obtain compensatory property through participating in such bids . They did not have any priority over other bidders . However , with the entry into force of the Law of DATE on amendments to the PERSON on the organisation and work of the ORG and on the powers of ministers , to the PERSON on the branches of the executive and to other statutes ( LOC o zmianie ustawy o organizacji i trybie pracy PERSON oraz o zakresie działania ministrów , ustawy o działach administracji rządowej oraz o zmianie niektórych ustaw CARDINAL “ the DATE LAW ” ) , the situation changed . Since then , no property administered by the agency could be designated for the purposes of providing compensation for property abandoned beyond LOC .", "The amended section CARDINAL(CARDINAL ) of LAW read as follows :", "“ Section CARDINAL of LAW of DATE does not apply to property mentioned in section CARDINAL(CARDINAL ) of this PERSON . ”", "“ Property ” within the meaning of the latter provision is “ ORG property that is administered or used by any entity subordinate to , or supervised by , the Minister for ORG and which does not serve the purposes of the functioning of such an entity ” . That , for instance , includes land , commercial and industrial property , dwellings , sports facilities , etc .", "On DATE the ORG put the issue of the constitutionality of section CARDINAL(CARDINAL ) of the DATE Act before ORG ( see also CARDINAL , DATE and DATE above and paragraphs DATE below ) .", "NORP However , before the entry into force of the DATE Amendment , the authorities of ORG issued an instruction on handling claims submitted by repatriated persons . The relevant part of that document read as follows :", "“ In connection with the entry into force on DATE of the provisions of the ORG 's Ordinance of DATE amending the Ordinance on the procedure for the offsetting of the value of real property abandoned abroad against the price of a title to real property or against the fees for perpetual use , and on the methods of assessing the value of such property ( ORG no . CARDINAL , item CARDINAL ) , and with the questions submitted regarding the agency 's responsibility for the settlement of the claims of LOC repatriates , the following was agreed :", "ORG will not offset the value of property abandoned abroad against the price of a title to real property or against the fees for perpetual use .", "Offers submitted by LOC repatriates in competitive bids without the payment of a deposit should be disregarded . If , after the deposit has been paid , and the competitive bid has been successful , the bidder asks to offset the value of the land abandoned abroad against the price of the title or against the fees for perpetual use , it should be assumed that the bidder has withdrawn from the conclusion of the contract , and the deposit is forfeited in favour of the Agency .", "In the event of the bidder in the above cases submitting a complaint concerning the competitive bid , the complaint should be immediately transmitted to the President of the ORG for settlement . Such complaints will not be taken into account .", "In the event of the bidder bringing the case to court , the competitive bid process should continue , because the court summons will not delay the proceedings unless the court issues an interim order to protect the interests of the complainant .", "In the event of sale without a competitive bid and in the event of sale by negotiation , offers by LOC repatriates should also be disregarded on account of the non - settlement of their claims by the ORG . ... ”", "The drafting of the DATE PERSON on the restitution of immovable property and certain kinds of movable property taken from natural persons by the ORG or by GPE , and on compensation ( ORG ustawy o reprywatyzacji nieruchomości i niektórych ruchomości QUANTITY przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach – “ the Restitution Bill DATE ” ) was completed in DATE .", "The bill was introduced in ORG by the government in DATE . However , it provoked a mounting conflict among all existing political factions before it was finally rejected , after a legislative process that lasted DATE .", "It provided that all persons whose property had been taken over by the ORG by virtue of certain statutes enacted under the totalitarian regime were to receive PERCENT of the actual value of their property , either in the form of restitutio in integrum or in the form of compensation in securities . Under section CARDINAL(CARDINAL ) read in conjunction with section CARDINAL , repatriated persons were to receive securities amounting to PERCENT of the value of their property , calculated according to the detailed rules applying to all the persons concerned .", "Following a heated debate involving all sections of society , the media and all the political parties and factions , the relevant Act of ORG was transmitted for the President of GPE 's signature in DATE .", "The President , exercising his right of veto , refused to sign it .", "The President transmitted the vetoed Act to ORG on DATE . ORG for Adopting the Restitution Bill DATE moved for its readoption .", "Ultimately , the government coalition failed to gather the CARDINAL majority necessary to override the President 's veto , and the PERSON was rejected by ORG on DATE .", "The right of perpetual use is defined in Articles CARDINAL et seq . of LAW ( PERSON ) . It is an inheritable and transferable right in rem which , for DATE , gives a person the full benefit and enjoyment of property rights attaching to land owned by ORG or municipality . It has to be registered in the court land register in the same way as ownership . The transfer of that right , like the transfer of ownership , can be effected only in the form of a notarised deed , on pain of it being void ab initio . The “ perpetual user ” ( użytkownik wieczysty ) is obliged to pay ORG ( or the municipality , as the case may be ) an DATE fee which corresponds to a certain percentage of the value of the land in question .", "In its resolution of CARDINAL DATE ( no . III CZP CARDINAL/CARDINAL ) , adopted by a bench of CARDINAL judges , ORG ( Sąd Najwyższy ) dealt with the question whether persons repatriated under LAW DATE between the government of ORG and the government of the GPE on the timing and procedure for the further repatriation from the GPE of persons of NORP nationality , were entitled to the deduction referred to in section CARDINAL(CARDINAL ) of LAW DATE ( continued by LAW ) . The answer was in the affirmative .", "In that context , ORG referred to the NORP Agreements of DATE and held , inter alia , the following :", "“ ... by virtue of the NORP Agreements of DATE , the NORP ORG undertook to pay equivalent compensation for [ the abandoned ] property . Thus , in this way , the provisions of those agreements were incorporated into NORP law and , in respect of NORP citizens , may constitute a basis for general rights . ...", "Section CARDINAL(CARDINAL ) ... , on account of its specific wording , causes serious difficulties in construction . Instead of determining directly subjective and objective preconditions for the right to equivalent compensation , the legislature referred to the provisions of international treaties . That reference constitutes the incorporation of the provisions of those agreements into NORP law . Yet that section does not list the treaties to which it refers . Thus the possible instruments are :", "( a ) NORP the NORP Agreements of CARDINAL and DATE ;", "...", "( c ) the Pact of DATE between the government of the Polish People 's Republic and the government of the GPE on the timing and procedure for further repatriation from the GPE of persons of NORP nationality .", "...", "Among the general principles laid down in DATE Agreements only CARDINAL fundamental principle , enunciated in LAW of each of those Agreements – which provided that the NORP State should return the value of [ abandoned property ] to persons evacuated under those agreements – was incorporated into domestic law . Not from those other principles , but only from this one , does the general right to equivalent compensation derive . ”", "DATE . In its resolution of DATE ( no . CZP CARDINAL/CARDINAL ) , ORG , sitting as a bench of CARDINAL judges , dealt with the question whether an entitlement to compensation for property abandoned in the territories beyond LOC could be considered a debt chargeable to ORG , and whether a person thus entitled could transfer his entitlement by way of a contribution in kind to pay for shares in a joint - stock company .", "According to ORG , the entitlement in question is for all practical purposes a debt chargeable to ORG , and undoubtedly has a pecuniary and inheritable and , to some extent , transferable character , as it can only be transferred between persons expressly mentioned in section CARDINAL ) of LAW , namely the owners of property abandoned in the territories beyond LOC or their heirs .", "Consequently , that entitlement can not be transferred to a legal person who was not listed in section CARDINAL(CARDINAL ) and who , under NORP law , is not capable of inheriting . It has also been stressed that , in the light of the relevant practice and legal theory , a contribution in kind must be fully transferable , must have a precise accounting value and must be able to be entered as a capital asset on a balance sheet . Accordingly , the relevant entitlement does not satisfy the requirements for a contribution in kind .", "In a letter of DATE , the ORG reminded the Prime Minister that he had already asked his predecessor in office whether any legislative process would be initiated in order to amend legislation and to increase the amount of land held by ORG with a view to providing compensatory property for repatriated persons . He also referred to the practice of refusing to make deductions under LAW of LAW . The relevant part of that letter read as follows :", "“ On CARDINAL DATE I wrote to the former Prime Minister , Professor PERSON , and raised my objections to the infringement by district mayors ' offices [ starostwa powiatowe ] of certain rights of people repatriated from the ' territories beyond LOC . As well as bringing your attention to this problem , I also requested information on whether specific legislative work had been undertaken in order to increase the stock of real property designated for settling the claims of this quite considerable group of citizens . ...", "Paragraph CARDINAL of the DATE Ordinance makes very clear that , apart from the district mayors , other entities that administer ORG property on the basis of separate regulations are also to administer immovable property belonging to ORG in order to ensure more effective realisation of compensation in kind for ' property beyond LOC . However , it turns out that , following the amendments to the DATE Ordinance , the necessary amendments to legislation , that would have increased the stock of property designated for settling the claims of people repatriated from the ' territories beyond LOC , have not been introduced .", "This state of affairs is confirmed by the letters I have received from entitled persons who claim , for instance , that ORG still refuses to offset the value of their property abandoned abroad against the price of property being sold by the agency or against the fee for the right of perpetual use . The situation is similar when people repatriated from the ' territories beyond LOC wish to participate in bids organised by ORG . In all the cases referred to above , each agency , as grounds for denying entitled persons the right to participate in a bid , points to the absence of relevant legal regulations that would allow it to offset the value of property abandoned abroad against the price of property being sold by a given agency . ...", "With regard to the above , I cordially ask you to inform me whether you are currently planning to amend the relevant legislation in order to increase the number of entities administering public property that are obliged to respect the right of people repatriated from the ' territories beyond LOC to compensation in kind . ... ”", "The Prime Minister replied that for the time being the authorities did not envisage any specific measures .", "On DATE the ORG made an application to ORG , asking that :", "“ CARDINAL . Section CARDINAL ) of LAW , in so far as it excludes the possibility of offsetting the value of property abandoned in connection with the war that began DATE against the sale price of agricultural property owned by ORG ;", "Section CARDINAL of LAW , in so far as it excludes the application of section CARDINAL of that Act to property held by ORG ;", "Section CARDINAL of the [ CARDINAL Amendment ] ;", "Section CARDINAL(CARDINAL ) of the [ CARDINAL Act ] ;", "be declared incompatible with the principle of maintaining citizens ' confidence in the ORG and the law made by it , emerging from LAW , as well as with LAW and CARDINAL read in conjunction with LAW of the LAW . ”", "In the reasoning for his application , the ORG invited ORG to qualify the entitlement under section CARDINAL ) of LAW as , inter alia , an “ opportunity or hope [ of acquiring ] ownership title to specific properties ” , a “ right of a proprietorial nature secured by LAW and a “ right of a pecuniary nature , which also has the character of a debt ” .", "Article CARDINAL of the LAW reads as follows :", "“ GPE shall be a democratic ORG ruled by law and implementing the principles of social justice . ”", "Article CARDINAL § CARDINAL of the LAW , which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms ( the principle of proportionality ) , provides :", "“ Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic ORG for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”", "Article CARDINAL of the LAW lays down the principle of protection of property rights . Its relevant parts read as follows :", "“ CARDINAL . Everyone shall have the right to ownership , other property rights and the right of succession .", "Everyone , on an equal basis , shall receive legal protection regarding ownership , other property rights and the right of succession . ... ”", "Article CARDINAL § CARDINAL refers to the ORG 's civil liability for a constitutional tort in the following way :", "“ Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law . ”", "DATE . Article CARDINAL lists the sources of law . The relevant parts of that provision read as follows :", "“ CARDINAL . The sources of the universally binding law of GPE shall be : the LAW , statutes , ratified international agreements , and regulations . ... ”", "Article CARDINAL of the LAW , in its relevant part , states :", "“ CARDINAL . After promulgation thereof in LAW [ PERSON ] , a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly , unless its application depends on the enactment of a statute .", "An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement can not be reconciled with the provisions of such statutes . ”", "Article CARDINAL of the LAW determines the scope of ORG jurisdiction . Article CARDINAL lists the authorities and organisations entitled to apply to ORG for a ruling on the conformity of a piece of legislation , or particular legislative provisions , to LAW .", "The relevant parts of LAW provide as follows :", "“ The Constitutional Court shall adjudicate regarding the following matters :", "( CARDINAL ) the conformity of statutes and international agreements to the LAW ;", "...", "( CARDINAL ) the conformity of legal provisions issued by central ORG authorities to the LAW , ratified international agreements and statutes ; ... ”", "The relevant part of LAW reads as follows :", "“ CARDINAL . The following may make an application to the Constitutional Court regarding matters specified in Article CARDINAL :", "( CARDINAL ) NORP the President of the Republic , the Speaker of the PERSON , the Speaker of the ORG , the Prime Minister , CARDINAL deputies , CARDINAL senators , the First President of ORG , the President of ORG , the ... Prosecutor General , the President of ORG and the ORG ; ... ”", "The Constitutional Court heard the ORG 's application on DATE ( see also paragraphs CARDINAL above ) . The parties to the proceedings were the Prime Minister , representing the government , ORG ) and the PERSON , represented by its Speaker ( PERSON ) . ORG of ORG ( PERSON Wierzycieli PERSON ) submitted pleadings which addressed the manner in which the authorities had , or – rather – in their view , had not satisfied the entitlements under section QUANTITY of LAW . ORG admitted their pleading and considered it an opinion filed by a non - governmental organisation .", "ORG held that sections CARDINAL ) and CARDINAL of LAW , in so far as they excluded the possibility of offsetting the value of property abandoned abroad against the sale price of ORG agricultural property , were incompatible with the constitutional principles set out in LAW principles of the rule of law and maintaining citizens ' confidence in the ORG and the law made by it ) and LAW and CARDINAL ( principle of protection of property rights ) , read in conjunction with LAW ( prohibition of disproportionate limitations on constitutional rights and freedoms ) , of LAW . It went on to hold that section CARDINAL of the DATE LAW and section CARDINAL(CARDINAL ) of LAW were , in their entirety , incompatible with the above - mentioned principles .", "In GPE , ORG judgment was considered a landmark ruling on LOC claims , encompassing a detailed historical and legal analysis of that issue . Referring to the historical background of the case , ORG stated , inter alia :", "“ The first issue to be dealt with concerns the empowerment of the [ communist authorities that concluded the NORP Agreements ] to enter into international agreements . There is no doubt that ORG can not be considered a constitutional entity of a sovereign ORG , with corresponding democratic legitimacy and capable of taking sovereign decisions in the name of the ORG .", "The scope of compensation set out for repatriated persons in the NORP Agreements was in no way equivalent or proportionate to the scope of compensation that the GPE with which these Agreements were concluded took upon themselves as an obligation . In most cases the repatriation was de facto in one direction , as most evacuees were former NORP citizens from the territories lost by GPE as a result of the Second World War . As a consequence , despite a considerably greater material burden of resettlement and repatriation , GPE , by virtue of the CARDINAL Pact , was obliged to pay the GPE the substantial sum of MONEY ( LAW ) . As in the case of the change in GPE 's borders , this type of obligation can certainly not be treated as a sovereign decision by the NORP State authorities .", "It should be mentioned at this point that similar burdens in connection with the consequences of the war were also borne by other GPE , but in no case , with the exception of GPE , was the weight of the burden comparable to the CARDINAL ORG had to bear . It is worth recalling that meeting these obligations was further complicated by the considerable material losses suffered during the war and immediately afterwards . Under these conditions , it was evident that the process of affording satisfaction to the repatriated persons , as set forth in the agreements with the GPE and GPE concerned , had to be moderate and spread over time . This also means that it is necessary to take into consideration the difficult financial situation of the ORG and , above all , the situation of groups of citizens other than LOC repatriates . Undoubtedly , the consequences of the war were felt by NORP society as a whole . In this connection , it can not be argued that , for example , compensation that is incomplete , subject to time - limits or taking a specific form is automatically in contradiction with the principle of justice . This view also applies to mechanisms providing only partial compensation for losses suffered as a result of acts of war and territorial changes . ”", "The judgment , which contained extensive reasons , was based on the following main grounds :", "“ ( CARDINAL ) The NORP Agreements gave rise to a specific type of State obligation to award compensation , through appropriate domestic law , to persons who had lost property in connection with the delimitation of GPE 's borders after the Second World War . ORG did not constitute a direct basis for repatriates to lodge compensation claims , as the legislature was left free to determine how the compensation machinery would be set up . The ORG 's responsibilities in this regard , as undertaken in successive legal regulations , are matters left for an independent decision by the legislature .", "( CARDINAL ) The right to credit , which provides for the possibility of offsetting the value of property lost by NORP citizens after being abandoned outside the present territory of the ORG against the sale price of immovable property or against fees for the right of perpetual use , constitutes a specific surrogate for the lost property rights , which is not solely a legal expectation of compensation but rather a property right recognised in the LOC 's legal order as part of its public law . As such , this right enjoys the constitutionally guaranteed protection of property rights ( LAW and QUANTITY of the LAW ) .", "( CARDINAL ) The creation of legal frameworks for given institutions can not be entirely abstracted from the factual circumstances and the economic realities in which the legal institutions thus established are to function . As a matter of principle , therefore , the legislature may not narrow down the possibility of benefiting from a general right granted to an individual so severely that the ultimate result is essentially a nudum ius , so that the property becomes an immaterial right devoid of any pecuniary value in practice . In the case of the so - called right to credit , its nominal value does not , however , correspond to its actual value . The depreciation of the value of this right has occurred as a result of the legislature excluding specific categories of immovable property , which has fundamentally limited the possibility of enjoying this right .", "( CARDINAL ) All property rights within the legal order are subject to constitutional protection . An interference with the sphere of an entity 's legally protected property interests , when it occurs without the formal removal of the entity 's legal title , amounts to de facto expropriation , within the meaning adopted in the case - law of ORG . Consequently , the assessment of provisions that eliminate the possibility of benefiting from a right in practice leads to the conclusion that they are incompatible with LAW and QUANTITY of the LAW .", "( CARDINAL ) ORG solutions limiting the possibility of benefiting from the right to credit , within the framework determined by the law , and resulting in those rights being stripped of their substance , can not be considered necessary in a democratic State governed by the rule of law , and are not functionally related to any of the values set out in LAW [ of LAW ] ( the principle of proportionality ) .", "( CARDINAL ) The requirement of respect for the principle of maintaining citizens ' confidence in the ORG and the law made by it , ensuing from the principle of the rule of law ( LAW ) , entails a prohibition on enacting laws that would create illusory legal institutions . This principle therefore requires that the obstacles which prevent [ persons ] from benefiting from the right to credit be eliminated from the legal system . From the point of view of the confidence principle , in the case of the right to credit it is the means of protecting this right that is subject to assessment , rather than its substance . The lack of opportunity to benefit from this right , within the framework set out by the legislature , shows that an illusory legal institution has been created , and thereby constitutes a violation of LAW . ”", "ORG coined a new term for the entitlement under section CARDINAL of LAW , calling it the “ right to credit ” ( “ prawo zaliczania ” ) . That term has already entered legal usage and has frequently been referred to in many subsequent judicial decisions and various legal texts .", "The court considered that even though that right originated in the provisions of the NORP Agreements , section CARDINAL constituted the actual legal basis for it . In that regard , it held that those agreements did not constitute part of the domestic legal order since , even though they had been ratified , they had not been published in ORG and could not be regarded as a source of law within the meaning of LAW .", "ORG defined the right to credit as follows :", "“ The right to credit has a special nature as an independent property right . In the opinion of ORG , it constitutes a specific surrogate for property rights rather than a mere expectation of the right to compensation , and for this reason it should be recognised as enjoying the constitutionally guaranteed protection of property rights ( LAW and CARDINAL ) . In the assessment of ORG , it is justified to hold that the right to credit is a special property right of a public - law nature . It is not a proper ownership right , but neither can it be reduced to the category of a potential right in the sense of a maximum formulated expectation [ ekspektatywa maksymalnie ukształtowana ] . Even though materialisation of the right depends on action by the entitled person , it would not be justified to conclude that this right does not exist until the time of its realisation resulting from winning a bid , in which the entitled person may offset the value of abandoned property against the value of acquired property or against fees for perpetual use . ...", "There can be no doubt that the right to credit belongs to the category of rights subject to protection under LAW No . CARDINAL to ORG . ”", "The Constitutional Court further examined the case under LAW , laying down the principle of the protection of property rights . It described the ORG 's conduct in the following way :", "“ In the opinion of ORG , there is no doubt that , in these circumstances , all laws restricting the repatriates ' access to acquisition by means of bids for certain categories of ORG property have a direct impact on the possibility of realising the right to credit .", "In the present legal circumstances , one can identify a peculiar functional paradox in that a general right laid down in the legislation in force can not be materialised in practice . Consequently the right to credit is becoming more and more of an ' empty obligation ' and is turning into a nudum ius . Maintenance of the present trend , in which various types of ORG land are excluded from the application of the right to credit will mean that there is no hope of this right materialising in the future . This state of affairs is already resulting in an unfavourable and paradoxical situation : entitled persons who have been waiting for DATE to be able to participate in competitive bids and , subsequently , in the course of such bids , being aware of how difficult it is to realise their right to credit , ' push up ' the price of the property to a level considerably exceeding its market value .", "In the present circumstances , in order to assess the possibility of taking advantage of the right to credit , one must take into consideration not only the limitation of the availability of certain types of property , with varying degrees of justification , but also the actual opportunities for enforcement of this right and its economic value .", "The statutes restricting repatriates ' access to ORG property essentially result in de facto expropriation , whereby it is impossible to enjoy the right to credit either at present or in the future , in the sense in which this concept is used in ORG case - law cited above . ...", "The unconstitutionality of the limitations set out in section CARDINAL ) and section CARDINAL of LAW , in DATE LAW , and in section CARDINAL(CARDINAL ) of LAW , consists precisely in the fact that the general right ( the right to credit ) was formulated in such a way that it could not be materialised in the existing legal environment , so that it has become illusory and a mere sham . Moreover , it is not just a question of temporary impossibility , conditioned by certain factual and legal circumstances , but rather a question of the creation of legal constructions that exclude this possibility ex thesi . In the case at hand , assessment of the possibility of this right materialising is all the more essential in that the legislature , in accepting the principle of the ORG 's obligations towards repatriates on the basis of the international agreements , failed at the same time to establish any alternative compensation mechanism . For DATE , the right to credit has been the only available de lege lata solution allowing for compensation of the material losses suffered by NORP citizens as a result of territorial changes in DATE . ... ”", "Assessing the situation from the point of view of LAW , namely the admissibility of the restrictions imposed by the authorities on the exercise of the right to credit , ORG observed , inter alia :", "“ [ T]he protection of property rights does not mean that it is completely impossible to interfere with their substance , or that they are absolutely inviolable ... What is necessary is to remain within the constitutional framework which sets out the boundaries for constitutional protection of a given property right [ references to the relevant judgments of ORG ] . Such limitations are introduced by LAW in LAW . In ORG case - law it has been indicated on many occasions that this provision provides tests for determining the conditions for the admissibility of limitations on the enjoyment of constitutional rights and freedoms . ...", "In this context , it is important to note ORG position expressed in the judgment of DATE , [ references ] , according to which the scope of such limitations must not cause annihilation of the fundamental components of the general right , resulting in its being ' stripped ' of its real substance and turned it into a legal fiction . Such a situation leads to a constitutionally unacceptable violation of the fundamental substance or the essence of that right . ...", "In the light of the foregoing considerations , it must be recognised that all the provisions referred to in the ORG 's application , which limit the actual scope of property in respect of which the procedure set out in section CARDINAL of LAW DATE can be applied , are incompatible with LAW and CARDINAL read in conjunction with LAW of LAW .", "Such limitations are not justified in a democratic ORG governed by the rule of law . The aims set out in section CARDINAL of LAW , and the grounds provided for limiting the right to credit in the case of property entrusted to ORG , namely the need for funds to modernise the armed forces , must not be pursued in a manner that deprives only a specific group of persons of the possibility of realising property rights vested in them .", "In the case of agricultural property administered by ORG , such exclusion can not be tolerated without the simultaneous establishment of universal solutions that would open up a way to solve property problems relating to the regulation of ownership relations .", "In the case of exclusions provided for in LAW , the aim of generating resources for the modernisation and maintenance of military institutions does not justify discrimination against persons entitled to credit for the value of property abandoned outside the present territory of GPE , purely because those persons may not be able to pay the purchase price in cash . This type of solution can never be recognised as necessary in a democratic ORG governed by the rule of law . Neither is there any functional connection between that limitation and the pursuance of the aims referred to in LAW . The need to introduce limitations could arise if the realisation of the right to credit were to make it impossible to satisfy the legally protected interests of other persons . In particular , the existence of the right to credit does not lead to a situation in which the rights of other persons might be violated ( for example , the rights of former owners who have been given priority or persons with a right of pre - emption ) .", "At the same time , it should be stressed that the unconstitutionality of these provisions is not connected with a legislative omission consisting of the lack of certain regulations regarding compensation for LOC repatriates . Rather , it arises from the defective legal formulation of the provisions governing the question of compensation , which causes an inadmissible systemic dysfunction . It must be stressed that in creating a general property right , the ORG may not at the same time arbitrarily introduce , by taking advantage of the attributes of ORG power , such limitations which , by excluding substantial stocks of property from the compensation procedure , de facto paralyse the possibility for beneficiaries to derive any economic advantage from these rights . ”", "Lastly , ORG referred to the principle of the rule of law , set out in LAW . It held , inter alia , as follows :", "“ This principle means , first and foremost , the need to protect and respect properly acquired rights and to protect interests that have not yet been vested ... but it also encompasses a prohibition against the legislature creating legal constructions that can not be implemented and constitute an illusion of law , and hence a pretence of protecting those property interests that are functionally connected with the substance of the established general right .", "As a matter of principle , the legislature may therefore not narrow the possibility of realising a general right formally vested in an individual to such an extent as to effectively create a nudum ius , that is , . a property right that consequently becomes devoid of substance and has no pecuniary value in practice . For it must be stressed yet again that in the case of the so - called ' right to credit , ' its nominal value does not correspond to its real value . This depreciation occurs precisely because the possibility of realising this right has been limited to a significant extent through legislation excluding certain categories of property . ...", "The imperative of adherence to the principle of maintaining confidence in the ORG , which encompasses , as indicated above , a prohibition against creating law that introduces fictional legal institutions , requires the elimination of legal obstacles that make it impossible to enjoy the right to credit . ORG can not assess to what extent a properly functioning right to credit could repair the damage caused by the loss of ' property beyond LOC . The resolution of this problem , which is part of the general issue of redress for the losses sustained by particular groups of the population as a result of the country 's historical territorial changes and changes in ownership introduced DATE , lies within the competence of the legislature . ...", "Essentially , then , the important point here is the implementation of the postulate that legal regulations should be formulated in such a way as to secure to the individual not only legal certainty , but also complete foreseeability as to the extent to which their implementation will affect the individual 's legal position in particular legal situations . The compensation mechanism introduced for persons who were deprived of their property as a result of territorial changes resulted in the development of legitimate expectations , on the part of those concerned , that this problem would be definitively resolved in the future , with due consideration for the interests of all persons in whom this right to credit was vested . The opinion that there has been a violation of the principle of maintaining confidence in the ORG and the law made by it , is further strengthened by the lack of alternative forms of compensation in the legal system . ...", "Elimination from the legal system of the limitations introduced by sections CARDINAL and CARDINAL of LAW , and by the other individual provisions , would make it possible for the remainder of the credit mechanism to become a real , and not , as hitherto , fictional instrument of compensation . ORG has not assessed the advisability of selection by the legislature of specific means of satisfying the repatriates ' property interests , since the determination of concrete institutional solutions is within the legislature 's independent sphere of competence . Therefore , it is the compensation machinery already set out in legislation that has been subjected to assessment from the point of view of constitutional guarantees .", "It should be pointed out in passing that , in addition to the compensation procedure directly established by section CARDINAL of LAW , the legislature recently introduced a new possibility for the realisation of the right to credit in LAW DATE on amendments to the PERSON on the exercise of ORG powers , the PERSON on commercialisation and privatisation of ORG enterprises and other statutes , which enters into force on DATE , and which adds a third subsection to section CARDINAL of the Law of DATE on the commercialisation and privatisation of ORG enterprises . On the basis of this provision , the persons referred to in section CARDINAL of LAW have been given the possibility of crediting the value of abandoned property against the sale price of a privatised enterprise , corresponding to the value of rights to certain items of immovable property included among the assets of the enterprise , or against the sale price of such rights not included among the assets . This is a new form of the right to credit and it is to be expected that it will broaden the possibility of obtaining actual compensation for lost property . However , the new regulation does not in principle change the assessment of the right to credit , as formed by the provisions contested in this case . For the existence of a new form of the right to credit ... does not free the legislature from ensuring that the compensation machinery , as examined in the present case , is designed in such a way as to be a genuine instrument for the protection of the individual 's property rights and not just a legal fiction .", "The elimination of the limitations contained in the contested provisions will certainly provide new and more favourable conditions for enjoyment of the right to credit , and hence a chance for the genuine functioning of the compensation mechanism established by legislation . ”", "On DATE ORG judgment was published in ORG . It took effect on DATE .", "On DATE the Law of DATE on amendments to the PERSON on the exercise of ORG powers , the PERSON on commercialisation and privatisation of ORG enterprises and other statutes ( PERSON o zmianie ustawy o zasadach wykonywania uprawnień przysługujacych PERSON , ustawy o komercjalizacji i prywatyzacji przedsiębiorstw państwowych oraz niektórych innych ustaw – “ the DATE Amendment ” ) came into force .", "Under section CARDINAL ) , the following amendment to section CARDINAL of the PERSON on commercialisation and privatisation of ORG enterprises was made :", "“ Persons referred to in section CARDINAL of the [ LAW DATE ] shall have the value of property abandoned in the territories not belonging to the present GPE offset against the following charges :", "NORP part of the sale price of a [ State enterprise ] , corresponding to the value of that enterprise 's rights [ in rem ] to land and a building designated for commercial or service purposes , or for use as an atelier , or for artistic activities , or for use as a holiday home or garage or of a plot of land designated for any such purposes ;", "NORP the sale price of the rights referred to in subsection ( CARDINAL ) which have been sold as assets not belonging to the enterprise and have been taken over by the ORG after a contract for the lease of the enterprise expired or was discharged . ”", "On DATE the ORG 's Ordinance of DATE on amendments to the ordinance on the detailed rules and procedure for conducting auctions for the sale of property owned by ORG or municipality ( ORG PERSON zmieniające rozporządzenie w sprawie określenia szczegółowych zasad i trybu przeprowadzania przetargów na zbycie nieruchomości stanowiących własność PERSON lub własność gminy – “ the DATE LAW ) came into force . Paragraph CARDINAL of the amended ordinance reads as follows :", "“ CARDINAL . In auctions organised by a mayor exercising functions within the domain of public administration , persons having rights referred to in section CARDINAL of the [ LAW DATE ] shall be exempted from payment of security if they make a written declaration to the effect that , in the event of their desisting from entering into a contract [ of sale ] , they will pay a sum equal to the security required from other bidders .", "Instead of a document confirming that they have paid security , persons referred to in sub - paragraph CARDINAL shall submit to the mayor the original of the certificate or decision confirming that they have the right referred to in section CARDINAL ) and ( CARDINAL ) .", "NORP In determining the conditions for the sale of property at auctions referred to in sub - paragraph CARDINAL , payment of the [ sale price ] in the manner prescribed in section CARDINAL may not be excluded . ”", "On DATE LAW of DATE ( Ustawa o kształtowaniu ustroju rolnego –“the DATE Act ” ) came into force .", "Under the provisions of this LAW , ORG was transformed into ORG ( see also paragraphs CARDINAL - CARDINAL above ) which , pursuant to section DATE , became its legal successor . The latter agency took over all property belonging to the former . The stock of property forming ORG was entrusted to the new agency . Consequently , that body is now responsible for the administration and distribution of ORG agricultural property and for holding auctions for the sale of that property under the provisions of the relevant ordinance ( see paragraph CARDINAL below ) .", "The Ordinance of the Minister for the ORG of CARDINAL DATE on detailed rules relating to the sale of property from ORG and its parts , conditions for payment of the price in instalments and land valuation rates ( ORG Skarbu Państwa w sprawie szczegółowego trybu sprzedaży nieruchomości PERSON Rolnej PERSON i ich częsci składowych , warunków rozkładania ceny sprzedaży na raty oraz stawek szacunkowych gruntów – “ the DATE LAW ) came into force on DATE .", "Under paragraph CARDINAL of the DATE Ordinance , repatriated persons are exempted from the obligation to pay a security to guarantee payment of the sale price before an auction for the sale of ORG property .", "The relevant part of this paragraph provides as follows :", "“ CARDINAL . Natural persons who , under other statutes , are entitled to offset the value of property abandoned beyond the present borders of the NORP State , in connection with the war that began in DATE , against the price , or fee for perpetual use , of ORG property [ which they wish to purchase ] shall be exempted from payment of a security if they make a written declaration to the effect that , in the event that they desist from entering into a contract of sale , they will pay a sum equal to the security required from other bidders .", "Instead of a document confirming that they have paid a security , the persons referred to in sub - paragraph CARDINAL shall submit to ORG the original of the certificate or decision confirming their entitlement to offset the value of the abandoned property against the sale price .", "NORP In determining the conditions for the sale of property [ – ] in respect of which the right to credit referred to in sub - paragraph CARDINAL applies [ – ] at an auction referred to in paragraph CARDINAL [ that is , any auction organised under the provisions of the DATE Act ] , payment of the sale price by means of such credit may not be excluded . ”", "At DATE several repatriated persons ( or their legal successors ) sued ORG before the courts , seeking damages under the law of tort and under the provisions of the relevant NORP Agreements . Some of those claims were dealt with by ORG ( PERSON ) .", "The claims were lodged despite the unfavourable outcome of similar cases in which claims for damages had been dismissed as having no legal basis in NORP law ( see also paragraph CARDINAL below ) .", "The first group of plaintiffs alleged tortious conduct on the part of the ORG in that it had made it impossible for them to exercise the right to credit and in that it had created a defective , illusory and ineffectual mechanism for satisfying their entitlements under section CARDINAL of LAW . They relied on the provisions of ORG as a legal basis for pecuniary compensation and asserted that the authorities had committed a constitutional tort within the meaning of LAW .", "The second group alleged that the ORG had committed a constitutional tort by , first , making it permanently impossible – through the enactment of successive laws and the adoption of defective practices DATE for them to satisfy their claims and , secondly , failing to publish ORG in ORG , thereby preventing the plaintiffs from relying on them in support of their civil claims before the courts .", "All the plaintiffs sought damages in amounts equal to the value of the property which they , or their families , had had to abandon beyond LOC .", "The first CARDINAL landmark judgments were delivered on CARDINAL and DATE .", "On DATE ORG , after hearing an action brought by CARDINAL individuals , PERSON , PERSON and GPE , against ORG for damages arising from the ORG 's failure to satisfy their entitlement to compensatory property under LAW of LAW , awarded the damages sought by them in their entirety .", "The court established that from DATE to DATE ORG had organised CARDINAL auctions for the sale of property in which LOC repatriates could participate . In certain auctions only those persons who had made applications for compensation before CARDINAL DATE had been able to make bids . In DATE the mayor of LOC had begun to hold auctions , but throughout DATE there had been CARDINAL such auctions .", "ORG described the situation in relation to the implementation of the plaintiffs ' right to credit in the following way :", "“ ... the organisation of these auctions either excluded persons from beyond LOC entirely , or limited participation in them to persons who were resident in the district where they were being held , or the property offered for sale could not satisfy the plaintiffs ' claims , given the value of their entitlements . Also , there were situations where ORG organised auctions from which , under the relevant provisions , persons from beyond LOC were excluded .", "Particular attention should , however , be given to situations where auctions did not exclude persons from beyond LOC . These occurred extremely rarely . In such situations a large group of persons who had entitlements to compensation would participate . These people , concerned that , owing to the small stock of property set aside to satisfy their claims , they would not be able to obtain any satisfaction , would increase their bids for the property in such a way that the price of the property for sale was several times higher than its market value . It was symptomatic that only persons from beyond LOC took part in these auctions , although the organisers also permitted the participation of persons who were able to buy the property in cash . In CARDINAL of the auctions a property whose reserve price , assessed in line with market valuations , was MONEY , was sold for MONEY . In another auction a plot with a building that had been used as a dissecting room , and which had a reserve price of MONEY , was sold for MONEY . In the context of the above situation , it suffices to say that , within the area of activity of ORG of ORG of ORG , that is , within the territory of the former GPE and part of ORG , only about CARDINAL entitled persons out of a total of some CARDINAL having certificates or administrative decisions took advantage of their right to credit and , of these , nobody obtained full compensation for their entitlement . It should be added that , within the area of activity of LOC of ORG of ORG , CARDINAL persons tried to obtain certificates confirming their right to receive an equivalent to the abandoned property . ”", "The court further found that the plaintiffs , or their predecessors , had earlier refused to accept CARDINAL offers of compensatory property . It considered the refusal justified since the condition for obtaining the first property , a plot of land , had been to construct a house on it within DATE , whereas the plaintiffs had not had the means for such an investment . The second offer had been to choose CARDINAL of CARDINAL tenement houses in another town , but those houses had been in a catastrophic state .", "ORG shared ORG opinion that ORG did not constitute part of the domestic legal order . Consequently , they could not form a legal basis for raising a civil claim for damages before the court . It found , however , that the conduct of the ORG had amounted to a series of tortious acts and held , inter alia , that :", "“ As has been proved in detail in this case , a paradoxical situation arose , where entitled persons waited for DATE to participate in an auction , and then , if an auction actually took place , knowing how difficult it was to use their entitlement to credit and pressured by the situation they found themselves in , they bid up the price of the property to levels far exceeding its market value . In this way , finding themselves in a highly pressured situation , they lost a large part of their entitlement . The severe limitations placed on the possibility of satisfying their entitlements in effect brought about its elimination . This situation , where the ORG has created the circumstances described above , is in effect a totally unjustified expropriation [ and amounts to ] taking from persons from beyond the LOC property rights to which they are entitled . Even the creation of such a situation should be considered a state of lawlessness with regard to the rights of repatriated persons .", "It should be emphasised most strongly that the legislature not only has the positive obligation to create regulations and procedures that protect property rights , but there is also a negative obligation to refrain from introducing regulations that might remove legal protection from such rights , or that might restrict them , not to mention [ measures ] eliminating them entirely . If the legislature does not fulfil the above conditions , it is in breach of LAW and enacts lawlessness . ...", "In the opinion of this ORG , the statutory restrictions resulting from the legislation described above – although the statutes may have been necessary DATE and relating to local government reform , agricultural restructuring , the modernisation of the army and other issues , do not justify discrimination against persons who have the right to credit the value of property abandoned outside the borders of the country , just because these people can not pay the price of this property or [ the fee for ] the right [ of perpetual use ] in cash . ...", "The statutory restrictions affecting the property rights acquired by persons from beyond LOC create a situation where they are deprived of the property value that was set by the legislature .", "This is in effect a tortious act committed by the ORG , as a result of which , for reasons attributable to the ORG , the plaintiffs sustained damage in that they were unable to realise their rights to obtain property at the value confirmed in the relevant administrative decision . While the legislature , in LAW of the DATE Act and in section CARDINAL of LAW , gave persons from beyond LOC the right to credit the value of property abandoned abroad against the price of building plots or the price of buildings or LOC situated on land belonging to ORG , the subsequent acts rendered ineffective any possibility of this social group satisfying that entitlement .", "In essence , the damage sustained by repatriated persons , and also by the plaintiff in the context of the present case , consists of the difference between what they should have been able to have within the value of their entitlement , pursuant to section CARDINAL of LAW , and what they actually have in practice , as a result of the wrongful manner in which the ORG has implemented the law . ...", "In accordance with LAW , everyone has the right to obtain compensation for unlawful acts carried out by a public authority . The liability of ORG follows from LAW , linked as it is with the functioning of a public authority as a whole , rather than with specific persons connected to that institution , bearing in mind that responsibility arises if there is an unlawful act . Furthermore , the functioning of the public authorities should be taken , in a wider sense , as an act or omission , as specific actions , or as orders , judgments , administrative decisions , quasi - normative statutes and , finally , legislative activity . ...", "The fact that it was impossible for the [ plaintiffs ] to satisfy the entitlements they had obtained without a reduction in the greater part of their value , gives them the right to claim , on the basis of liability for a tort , compensation equal to the amounts stated in the relevant certificate .", "It is completely understandable that the plaintiffs , after obtaining the certificates that confirmed their entitlements as laid down in section CARDINAL of LAW , did not participate in auctions organised by the [ authorities ] , since the number of auctions of which they could have been aware was very small . However , in the context of the number of repatriated persons who were entitled to take part in auctions , any possible participation in an auction could result in their losing a significant proportion of their entitlement .", "Even though ORG judgment of DATE took immediate effect after its publication in ORG , namely , on DATE a judgment that ... lifted the restrictions placed on repatriated persons in regard to the realisation of their entitlements – in practice , ORG and ORG , taking the view that the above - mentioned judgment of ORG required the provisions of LAW and other statutes to be updated , have created a situation where it continues to be impossible for repatriated persons to realise the entitlements that they have obtained .", "This fact , as described in the establishment of the facts of this case , is a matter of common knowledge from newspaper reports . Thus , the government , incorrectly interpreting the consequences of ORG judgment , continues to block the rights of repatriated persons , thereby committing a tort to the extent and with the consequences described earlier by this ORG . ”", "In DATE the defendants filed appeals against that judgment with ORG ( Sąd Apelacyjny ) .", "The appeals were heard on DATE . ORG upheld the findings of fact made by the lower court but altered the ruling on the merits . It accordingly amended the first - instance judgment and dismissed the claim .", "In its reasons , ORG stressed that the enforcement of the right to credit depended , to a large extent , on the activity of the entitled person . It therefore constituted only a contingent right . Moreover , no pecuniary compensation was provided in section CARDINAL , which laid down another specific procedure for the discharge of the ORG 's obligation . The plaintiffs could have obtained compensation only if they had proved that it had been impossible for them to obtain any compensatory property within the entire territory of GPE . In that context , the court stressed that the plaintiffs had not yet exhausted all means available under domestic legislation . They had not participated in auctions and had refused to buy the compensatory property offered to them by the authorities . Only through their active participation in the auctions could the plaintiffs have demonstrated that they had difficulty in satisfying their claim . ORG also held that there was no basis for attributing tortious liability to the ORG , in particular liability for the alleged legislative inactivity . It rejected the idea that the legislature , by enacting erroneous legislation or by failing to guarantee properly the LOC people 's rights , had unlawfully expropriated the plaintiffs .", "On DATE the plaintiffs lodged a cassation appeal ( kasacja ) against the above judgment with ORG . The cassation proceedings are pending .", "On DATE ORG , composed differently , having heard an action brought by CARDINAL individuals , GPE . and PERSON . , against ORG ( Governor of GPE ) , allowed the plaintiffs ' claim for damages arising from the ORG 's failure to discharge its obligation under section CARDINAL of LAW .", "ORG considered that the provisions of ORG could not constitute a basis for a civil claim since they had not been duly published in ORG . It further considered , however , that not only the ORG 's failure to secure the effective enjoyment of the right to credit but also its failure to discharge its legal duty to publish ORG a failure that had prevented the plaintiffs from relying on them as a legal basis – amounted to torts for which ORG was liable . It held , inter alia :", "“ [ As to the facts ]", "Unfortunately , it has to be said that , although the period since ORG judgment was given has not been very long , the agencies that hold ORG property have currently suspended the organisation of auctions for this property , on the ground that there are no new legislative provisions to replace those repealed . However , it is worth noting that ORG judgment ... concerned , as mentioned above , ' the elimination of restrictions from the system ' ; hence there are no grounds for adopting the position expressed in the communiqués made available to the public on the Internet . As a result , this possibility [ of satisfying claims ] remains illusory for LOC people .", "[ As to the law ]", "In the light of this ORG 's findings of fact , there is no doubt that , while the Agreement of DATE with the NORP SSR was ratified , nevertheless it certainly has not been published since then in ORG ( which is also true of the agreement with the NORP SSR ) . In the light of the constitutional provisions cited above , it therefore can not constitute a source of law , since it did not come within the domestic legal order . Consequently , this agreement can not be applied directly or relied on as a basis for the plaintiffs ' claims . A similar opinion was expressed by ORG in its judgment of DATE , which has already been mentioned in connection with the findings of fact made in the present case . ...", "The plaintiffs applied for publication of LAW of DATE with the NORP SSR , but the Minister for ORG refused to take action along those lines , as he was required to do under the law on international agreements , responding that the agreement was terminated as a result of its having been executed . The basis expressed for this opinion was that , in the opinion of the Minister , the agreement had been executed inter partes , and therefore terminated , given the conclusion of the CARDINAL Pact with the government of the GPE . ...", "This opinion is erroneous for CARDINAL reasons .", "To begin with , in formal terms LAW does not provide for the possibility of terminating an agreement as a result of its execution , but rather for termination as a result of the renunciation of the agreement . ...", "Even if CARDINAL were to accept the possibility that agreements could be terminated as a result of their execution , this is not an argument that is relevant where agreements have not yet been fully executed . ...", "Apart from the above , which is , in a sense , of marginal relevance , it can be added that acceptance that ORG had been terminated with effect from DATE would have strange consequences , for it should be remembered that in this case the result would occur ... precisely from that date . But then one must ask the question why , for example , ORG in its case - law , quoted so extensively in the present case , has bothered over DATE with the issue of agreements which were no longer in force ? For instance , in the well - known resolution of CARDINAL ORG judges of CARDINAL DATE ( III CZP CARDINAL/CARDINAL , ... ) , ORG ruled not only on section CARDINAL(CARDINAL ) of ORG DATE , which set out the right to credit , but also on the NORP Agreements of DATE , and considered the substance of LAW . ...", "It can be seen from the above arguments that the executive authority , despite an application from the plaintiff to this effect , did not proceed with the publication of the Agreement with the NORP SSR ( at least ) , despite the existence of a statutory obligation to publish ratified agreements immediately . ... To put it in precise terms , the public authority refrained from acting , despite a statutorily formulated duty to do so , and hence it acted in breach of the law ( objective unlawfulness ) . Hence the first of the conditions of liability required by LAW , read in conjunction with LAW , is fulfilled . ...", "In its findings of fact , this ORG found that the plaintiffs could not satisfy their claims under LAW , since ORG , as represented by the mayor , had not made it possible for the right to credit to be enjoyed , given that it had not offered any immovable property for auction , and that this situation had lasted for DATE . In these circumstances , as rightly pointed out by ORG , this right had become illusory . It was also indicated that the situation had not changed at all since ORG judgment . ...", "As has been mentioned above , if the Agreement with the NORP SSR of DATE were published in ORG , then , in accordance with LAW , this Agreement would be considered under LAW ; there would then be a sort of presumption of its self - executing nature , and this ORG would be obliged to apply it in the present case . ...", "... [ had ] the NORP Agreements been published , then at the present time there would have been no obstacles to pursuing claims on the basis of the LAW 's provisions quoted above ... In the opinion of this ORG , the above remarks indicate that these provisions of the Agreement are self - executing in nature . ...", "This is an assertion of substantial significance . For , although the plaintiffs could invoke this instrument , its absence in the legal order makes that impossible in practice . But this absence is the result of an unlawful omission by the executive power , which neglected to publish the Agreement in ORG .", "Given these circumstances , there is a clear and direct causal link between the unlawful omission by the public authorities and the damage suffered by the plaintiffs . This pecuniary damage consists in the fact that it is impossible for the plaintiffs to satisfy their claims through a civil action based on LAW , given that the result of such a process is prejudged at the present time ( rejection of the claim , or , as in the present proceedings , an indication that such a basis is unfounded ) . It is certain that such proceedings can not have a positive outcome . ...", "It should be stressed that the damage described above would not have occurred if it had been possible for the plaintiffs to enjoy their so - called right to credit , which consists in offsetting the value of abandoned property . Hence the fact of causing damage by making it impossible to conduct proceedings is closely connected with that fact as well .", "In conclusion : the unlawful omission by the public authorities , consisting in not publishing the Agreement in the Journal of Laws despite the application by GPE . and MONEY . , made it impossible , as the plaintiffs could not enjoy their right to credit as a general right within the existing legal order , to obtain effective compensation in the maximum amount possible DATE namely , the value of the plaintiffs ' property abandoned in GPE , which they claimed on the basis of LAW of the Agreement with the NORP SSR . ”", "On DATE ORG heard cases brought by TIME . ( the plaintiff in the proceedings described above ) and a certain PERSON The applicants lodged the complaints under LAW of CARDINAL DATE ( Ustawa o Naczelnym Sądzie Administracyjnym ) , alleging inactivity on the part of the Prime Minister in that he had failed to publish ORG DATE , concluded by ORG and the governments of the NORP ORG of GPE and GPE ( see also paragraphs CARDINAL and CARDINAL above ) .", "ORG rejected the complaints , finding that they had been misdirected . In particular , there was no issue of inactivity on the part of the Prime Minister since he could not order publication of an international agreement without a prior recommendation from the Minister for ORG . The latter had not , however , recommended the NORP Agreements for publication in ORG .", "In its decision the court made certain important findings of fact and law . It also challenged the opinion of ORG as to the binding force of the NORP Agreements and expressed the view that DATE in each of the agreements related directly to the rights and obligations of repatriated persons and did not amount to a mere promise to act .", "The court held , inter alia :", "“ In the opinion of ORG , the substance of this LAW , and in particular LAW , indicates that it related directly to the rights and obligations of repatriated persons . It did not just contain a promise to act , which could not in and of itself constitute a basis for pursuing claims , since it only provided , as shown by the Constitutional Court judgment of DATE , and by the opinion of DATE of ORG to the Minister for ORG in the matter of LOC property , for a special type of responsibility on the part of the State to regulate , in domestic law , the issue of settlement with persons who lost property as a result of the delimitation of the NORP borders . This is clear from LAW , since the value of abandoned movable and immovable property was to be returned on the basis of an insurance valuation . ...", "In the opinion of ORG , the agreement in question , despite the position of the respondent and the reasoning of the Constitutional Court judgment of DATE , is still binding , as it has not been fully executed . In accordance with LAW on LAW of DATE , a treaty is considered terminated if all the parties to it have concluded a later treaty relating to the same subject matter and it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty , or if the provisions of the later treaty are so far incompatible with those of the earlier one that the CARDINAL treaties are not capable of being applied at the same time . ... ”", "On DATE , in CARDINAL subsequent judgments ( nos . II ORG CARDINAL/CARDINAL and PERSON CARDINAL ) concerning complaints about the inactivity of the executive , in particular the Minister for ORG failure to proceed with the publication of ORG in ORG , ORG fully upheld the above view . It further ordered the Minister to deal with the claimants ' applications for the NORP Agreements to be duly published .", "On DATE ORG dismissed a claim for pecuniary compensation for property abandoned beyond LOC ( in the region which now belongs to GPE ) lodged by a certain NORP . PERSON against ORG and the Minister for the ORG . ORG . S. asked for an award corresponding to the value of the property in question and relied on , inter alia , LAW of the relevant Republican Agreement . The court considered that the provisions of the Agreement could not constitute an independent legal basis for establishing the liability of the defendant and that the plaintiff had failed to show a causal link between the damage claimed and any tortious act or omission on the part of the ORG authorities .", "On CARDINAL DATE ORG , on an appeal by the plaintiff , upheld the first - instance judgment and the reasons given for it .", "This judgment ( no . I CK CARDINAL/CARDINAL ) was given by ORG sitting as a bench of CARDINAL judges , following the examination of a cassation appeal lodged by NORP . PERSON against ORG judgment . ORG quashed the appellate judgment and remitted the case to ORG . In its judgment , considered as a landmark ruling on LOC claims and the ORG 's civil liability for non - enforcement of the right to credit , ORG made a number of important findings of fact and law .", "Considering the nature of the entitlement laid down in section CARDINAL of LAW , ORG observed , inter alia :", "“ While the nature of that right is disputable , there is nevertheless a prevailing view that it constitutes a particular proprietary right , [ which is ] inheritable and transferable in a specific manner and whose substance consists in the possibility of having a certain pecuniary obligation satisfied through the use of the so - called ' LOC money ' [ pieniądz zabużański ] . This so - called right ... undoubtedly has a pecuniary value , [ a value ] which derives from the availability of goods which can be bought with it . The availability of those goods is determined by ... legislation and its application in practice . ”", "It further stated as follows :", "“ ... [ T]here can be no doubt that the legislative initiatives taken in DATE have affected the value of the right to credit and that this reduction in value can be considered a material loss covered by the notion of damage . In this regard , it is necessary to compare the value of the right to credit in a hypothetical legal situation free from the laws found to have been defective , and the value of this right resulting from the enactment of the [ defective ] laws in question .", "In considerations relating to damage , one must not fail to mention the way in which the legal provisions relating to the LOC people 's rights are applied in practice . The case file contains documents confirming that ORG does not hold any auctions in which they could participate . Neither ORG nor ORG have complied with ORG judgment . Such practices make it impossible , for all practical purposes , [ for the claimants ] to have their right to credit realised . Of course , [ in such matters as ] the existence of damage and its value , the burden of proof lay on the plaintiff . Admittedly , this damage does not amount to deprivation of property rights and its value is not equal to the value of the property abandoned in GPE . ...", "In conclusion , [ the LOC claimants ] may , under LAW , seek pecuniary compensation from ORG for the reduction in the value of the [ right to credit ] resulting from the enactment of legislation restricting their access to auctions ... which either made it impossible for them to enforce their rights or reduced the possibility of enforcing those rights . ...", "That does not mean , however , that it is possible [ for the claimants ] to obtain the full pecuniary value of the property abandoned in the LOC . It would be contrary to ... section CARDINAL of LAW , by virtue of which the legislature – acting within its legislative autonomy – laid down specific compensatory machinery . The crucial point is , however , that previous legislative action rendered [ this machinery ] illusory – as ORG has unequivocally held . This had an impact on the actual value of the [ right to credit ] . Indeed , the value of this right was reduced since the legislature , on the one hand , excluded from the scope of section CARDINAL ... [ certain ] portions of ORG land and , on the other , through the application of this provision in practice ( failing to hold auctions ) , made it unenforceable . [ I]n consequence , the right to credit could not , and still can not , be realised .", "Such actions can not be accepted in a democratic ORG governed by the rule of law and applying the principles of social justice ( LAW ) , or in a ORG in which equal protection is guaranteed in respect of ownership , other property rights and the right of succession ( LAW ) .", "It must be noted that PERCENT of persons entitled to compensatory property have obtained [ full ] compensation , in particular through the realisation of the right to credit . That being so , and given that the right to credit is still in force ... , the right to full compensation of those LOC claimants who have not yet realised the right to credit must be considered justified . [ To hold otherwise would amount to ] unjustified discrimination between [ various groups ] of LOC people and would render unenforceable the provisions ... laying down the specific procedure for the realisation of the right to credit ( in particular section CARDINAL ) . ”", "Meanwhile , the ORG had prepared the PERSON on amendments to LAW , the PERSON on amendments to the PERSON on the administration of ORG and other statutes ( ORG ustawy o zmianie ustawy o gospodarce nieruchomościami i ustawy o zmianie ustawy o gospodarowaniu nieruchomościami rolnymi PERSON oraz o zmianie niektórych innych ustaw – “ the Senate PERSON ) . It was introduced in ORG on DATE . In short , the ORG proposed a reformulation of the existing provisions in order to make all ORG land available to the LOC claimants .", "The first reading of the ORG PERSON took place on DATE . On CARDINAL DATE the government , which at DATE had prepared its own bill ( see also paragraph CARDINAL above ) , submitted its opinion , in which it strongly criticised the proposals by the ORG .", "The Government PERSON was submitted to ORG on DATE . The government proposed that all ORG property be available for sale to the LOC claimants but that the value of compensation be reduced to FAC CARDINAL .", "Later , ORG decided to work on both bills simultaneously .", "The first reading took place on DATE . The second and the third readings took place on DATE and CARDINAL DATE respectively . In the course of the readings , the maximum value of compensatory property was increased to PLN CARDINAL,CARDINAL .", "On DATE the bills were adopted by the PERSON and the LAW was referred to the ORG . The ORG proposed certain amendments which , in essence , were accepted by the PERSON on DATE . On DATE the December CARDINAL Act was transmitted for signature by the President of GPE . The President signed it on DATE .", "The DATE Act came into force on DATE . Section CARDINAL provides as follows :", "“ This PERSON shall determine the principles of offsetting the value of property [ which ] was abandoned beyond the present borders of ORG , in connection with the war that began in DATE , against the price of ORG property or against the fee for the right of perpetual use and [ in respect of which ] redress was to be afforded under [ the provisions of ] the following [ instruments ] :", "( CARDINAL ) Agreement of DATE between ORG and the government of the Belarus Soviet GPE on the evacuation of NORP citizens from the territory of the GPE SSR and of the NORP population from the territory of GPE ;", "( CARDINAL ) Agreement of DATE between ORG and the government of the NORP GPE on the evacuation of NORP citizens from the territory of the NORP SSR and of the NORP population from the territory of GPE ;", "( CARDINAL ) Agreement of DATE between ORG and the government of ORG on the evacuation of NORP citizens from the territory of the NORP SSR and of the NORP population from the territory of GPE ;", "( CARDINAL ) Agreement of DATE between GPE provisional government of national unity and the government of ORG on the right of persons of NORP and NORP origin living in the GPE to change the[ir ] NORP citizenship and on their evacuation to GPE , and on the right of persons of NORP , NORP , NORP , GPE and NORP origin living within the territory of GPE to change the[ir ] NORP citizenship and on their evacuation to the GPE . ”", "Section CARDINAL reads as follows :", "“ ( CARDINAL ) The right to credit the value of property abandoned abroad shall be conferred on the owners of such property , if they fulfil all the following conditions :", "NORP they lived in the territories referred to in section CARDINAL on DATE , held NORP citizenship on DATE , and abandoned those territories in connection with the war that began in DATE ;", "NORP they are NORP citizens ; and", "NORP they have permanently resided in GPE at least since the date of entry into force of this PERSON .", "( CARDINAL ) In the event of the death of an owner of property abandoned beyond the present borders of ORG , the right to credit the value of [ the abandoned ] property shall be conferred either jointly on all his heirs , if they are NORP citizens and have permanently resided in GPE since at least the date of entry into force of this PERSON , or on the [ one ] heir designated by the remaining heirs . The designation of such an entitled person shall be effected through a declaration with the signature [ or signatures ] being confirmed by a notary .", "( CARDINAL ) The right to credit the value of property abandoned beyond the present borders of the NORP State , as confirmed pursuant to other legal provisions and to this PERSON , shall not , without prejudice to subsection ( CARDINAL ) , be transferable .", "( CARDINAL ) The right to credit the value of property abandoned beyond the present borders of the NORP State shall not be conferred on a person who , pursuant to other legal provisions , including the provisions on land administration , on the agricultural reform or on the agricultural system and settlement , has acquired ownership or perpetual use of ORG property within the framework of the redress provided for in the Agreements referred to in LAW . ”", "Section CARDINAL lays down the right to credit in the following way :", "“ ( CARDINAL ) Persons referred to in section CARDINAL(CARDINAL ) and ( CARDINAL ) shall , without prejudice to subsection CARDINAL of this provision , have the value of property abandoned beyond the present borders of the NORP State offset against the price of ORG property or [ against ] the fee for perpetual use of such property and the price of buildings , other LOC or dwellings situated therein .", "( CARDINAL ) Offsetting of the value of property abandoned beyond the present borders of the ORG , as referred to in the [ preceding ] subsection , shall be effected up to a value equal to PERCENT of the value of that property ; the sum offset may not exceed MONEY . ”", "Pursuant to sections CARDINAL and CARDINAL , all LOC claimants must apply to the governor of the relevant province to have their right to credit confirmed . The confirmation takes the form of an administrative decision , which may be appealed against to the President of ORG ( Prezes PERSON i PERSON ) . The deadline for making such applications has been set at DATE .", "Section CARDINAL provides that governors are to keep registers of ORG claims .", "The entitlement to compensation under LAW can only be enforced through the auction bidding procedure .", "Section CARDINAL reads , in so far as relevant , as follows :", "“ The following amendments shall be made to LAW of DATE :", "Section CARDINAL shall be repealed ; ... ”", "Section CARDINAL states :", "“ Obligations following from the Agreements referred to in section CARDINAL shall be deemed to have been discharged towards the persons mentioned in section CARDINAL ) and the persons who , under the provisions of this PERSON , have realised PERSON ] right to credit the value of property abandoned beyond the present borders of the NORP State . ”", "On DATE , the date of entry into force of the December CARDINAL Act , a group of deputies from the party “ Civic Platform ” ( see also paragraph CARDINAL above ) applied to ORG under LAW read in conjunction with LAW , challenging the constitutionality of a number of that LAW 's provisions , including sections CARDINAL ) , CARDINAL ) , CARDINAL ) , CARDINAL ) , CARDINAL(CARDINAL ) and CARDINAL . They relied on the constitutional principles of equality before the law , the protection of property and of lawfully acquired rights , and the rule of law . The proceedings are pending ." ]

[ "P1" ]

[ "P1-1" ]

[ "P1-1-1" ]

[]

[]

[]

[ "The applicants were born in DATE and DATE respectively and live in GPE . The first applicant is the mother of PERSON , who was born in DATE . The second applicant is the mother of PERSON , who was born in DATE .", "NORP In DATE ORG was under the full control of the NORP military forces . The military troops were stationed in the town and its vicinity , in the settlement of PERSON ( also spelled as PERSON ) . The applicants ' families lived in the same neighbourhood on the outskirts of ORG . Their sons , PERSON and PERSON , attended the same school .", "In TIME of CARDINAL DATE PERSON and PERSON were walking home from school down FAC , which was situated between the local cemetery and a field . At TIME they were seen walking by PERSON brother , PERSON . He was next to his house when at TIME he saw an explosion in the vicinity .", "The applicants ' neighbour PERSON was at home and heard the sound of a flying projectile coming from the PERSON settlement . Then she heard an explosion , saw clouds of black smoke coming from the road next to the cemetery and rushed to the place . A number of the applicants ' relatives and neighbours also rushed to the place , where they found fragments of the bodies of PERSON and PERSON .", "TIME a group of military servicemen arrived at the scene . CARDINAL of them said that it must have been an explosion of a landmine . But a number of local residents told the officers that they had heard the sound of a flying projectile , and that therefore the explosion could not have been caused by a landmine . The head of the Urus - Martan town administration also arrived at the scene . In TIME of CARDINAL DATE the local TV station reported the events in a news programme .", "On DATE the applicants buried their sons . Many residents of ORG attended the funeral . CARDINAL of them , PERSON , told the second applicant that on DATE she had been working at the wheat processing plant located next to the road from ORG to PERSON . NORP military troops were stationed nearby . At TIME she heard a projectile being launched from a tank .", "According to another local resident , PERSON , on DATE she was walking from PERSON to Urus - Martan . QUANTITY from PERSON she saw a group of servicemen on a tank . They told her that the roads to ORG were blocked and nobody was allowed to go into the town . QUANTITY from the place she met a fellow villager . He told her that drunken soldiers were down the road and that she should return to PERSON . At TIME , when PERSON was at home , she heard a projectile being launched from a tank and the sound of an explosion on the outskirts of ORG .", "CARDINAL residents of PERSON , PERSON , PERSON and PERSON . T. , informed the applicants that at TIME on DATE they had heard a projectile being launched from the area where the NORP military troops had been stationed and they had heard it explode on the outskirts of ORG .", "On DATE the Urus - Martan district hospital issued CARDINAL statements certifying the deaths of PERSON and PERSON on DATE from numerous missile wounds .", "The Government did not challenge the facts as presented by the applicants . At the same time they pointed out that , according to the information provided by the domestic investigation , on DATE the military unit Don-CARDINAL stationed in ORG had been subjected to shelling by an illegal armed group under the command of Mr DATE . and that on that date the military unit had not used large - calibre weapons . They also stated that the deaths of the applicants ' sons could have been caused by the shelling opened by the illegal armed group .", "On DATE the Urus - Martan district prosecutor 's office ( the district prosecutor 's office ) initiated an investigation into the deaths of PERSON and PERSON . The case file was given the number DATE . In the submitted documents it was also referred to under no . DATE .", "On DATE the investigators examined the crime scene . Nothing was collected from the scene . The investigators briefly examined the boys ' remains on the spot . No forensic analysis of the remains was carried out by the investigation . Shortly after the events the applicants collected fragments of the explosive device which had caused the deaths of their sons and submitted them to the investigators .", "On DATE the applicants ' relatives wrote to the FAC district military commander 's office ( the district military commander 's office ) requesting the authorities to conduct an effective investigation into the deaths of PERSON and PERSON . No reply was given to this request .", "On DATE the head of the Urus - Martan district department of the interior ( the ROVD ) provided the investigators with a statement to the effect that PERSON and PERSON had died as a result of the explosion of a projectile of the ORG type ; that on CARDINAL October CARDINAL the military units Don-CARDINAL and regiment no . CARDINAL stationed in the vicinity of ORG did not use such large - calibre projectiles , and that on DATE the military units had been subjected to shelling by an illegal armed group under the command of PERSON .", "On DATE ( in the submitted documents the date was also referred to as DATE ) the district prosecutor 's office granted the applicants victim status in the criminal case .", "From DATE to CARDINAL DATE the applicants did not receive any information from the investigative authorities about the developments in the criminal proceedings .", "On DATE and DATE the applicants wrote to the district prosecutor 's office requesting information about the progress in the criminal investigation and asking for access to the investigation file . On DATE the investigators refused to grant access to the file and informed the applicants that the investigation had been resumed .", "On DATE the applicants requested the district prosecutor 's office to inform them about the date of the reopening of the criminal investigation . No reply was given to this request .", "On DATE the district prosecutor 's office suspended the investigation in criminal case no . CARDINAL .", "On DATE the applicants requested the investigators to inform them about the progress in the criminal case . No response was given to this request .", "On DATE the supervising prosecutor overruled the decision to suspend the investigation as premature , and ordered the investigators to resume the proceedings and take a number of investigative steps . The applicants were not informed about this decision .", "DATE the applicants complained about the ineffectiveness of the investigation to domestic courts ( see paragraphs CARDINAL below ) .", "On DATE the applicants were informed orally by an investigator , PERSON , that on an unspecified date the fragments of the projectile collected by the applicants from the crime scene had been sent for an expert examination .", "On DATE and DATE the GPE prosecutor 's office informed the applicants that their office was investigating the deaths of their sons and that on DATE the investigation had been suspended .", "According to the applicants , throughout the investigation the authorities consistently failed to inform them about its progress and deprived them of access to the investigation file .", "On DATE the district prosecutor 's office opened criminal case no . CARDINAL under LAW § CARDINAL of LAW ( murder ) in connection with the discovery on the eastern outskirts of GPE of the bodies of minors PERSON and PERSON .", "On DATE the investigators examined the crime scene and the fragments of the bodies on the spot . Nothing was collected from the scene .", "On DATE the investigators questioned PERSON , who stated that she had been in her courtyard when she had heard the sound of a flying projectile coming from the outskirts of the town and then the sound of an explosion . The witness and her sister had rushed out into the street and next to the district hospital they had seen a hole in the ground and the remains of CARDINAL bodies . The witness asserted that the explosion had been caused by the projectile which had arrived from the direction of the collective farm , and not by a mine , as she had clearly heard the distinctive sound of a projectile .", "On unspecified dates the investigators questioned witnesses Mr Kh . Kh . and PERSON . O. , whose statements concerning the events were similar to that given by PERSON", "DATE and DATE the law - enforcement agencies conducted checks in respect of CARDINAL residents of ORG to find out whether they had been involved in the deaths of the applicants ' sons .", "On DATE the head of the NORP ROVD provided the investigators with a statement to the effect that the applicants ' sons had died as a result of the explosion of a projectile of the ORG type .", "On DATE the investigators granted both applicants victim status in the criminal case and questioned the second applicant , who stated that she had found out about the events from her neighbours and that she had been prevented by them from approaching the scene of the incident . From the eyewitnesses she had learnt that her son and PERSON had been killed by a projectile which had arrived from the eastern part of ORG .", "On an unspecified date the investigators questioned the first applicant 's husband , PERSON , who stated that on DATE he had been in ORG when he had been informed that his son PERSON had been killed by a projectile . He had rushed to the place of the incident and found the remains of his son and those of PERSON . According to the witness , it was clear that the boys had died from a projectile which had arrived from the eastern part of ORG .", "On an unspecified date the investigators questioned PERSON who stated that on DATE he had heard a powerful explosion and rushed into the street . Next to the cemetery he had seen clouds of thick black smoke and had run to the place , where he had found a hole in the ground measuring QUANTITY , school textbooks and the bodies of the QUANTITY boys . He found out the boys ' names from their school books .", "On an unspecified date the investigators questioned PERSON , who stated that on DATE she had been on the eastern outskirts of ORG . At TIME she had heard a projectile flying from the direction of the PERSON settlement and then an explosion . She had rushed to the place , where she had found the hole in the ground and the remains of CARDINAL boys next to it . The witness stated that an acquaintance of hers , Ms PERSON , had seen military tanks stationed in PERSON turning towards ORG and CARDINAL of them firing a projectile in the town 's direction . The witness further stated that at the scene she had not seen any wires or devices which could have indicated a landmine .", "On an unspecified date the investigators questioned PERSON , who stated that on DATE she had been at home . At TIME she had heard a flying projectile and then an explosion . She had run out into the street and seen PERSON running to the place of the explosion . When the witness had arrived at the scene , she had found a hole in the ground of QUANTITY in diameter and the remains of CARDINAL boys . From the shape of the hole it had been clear that the projectile had arrived from the direction of the PERSON settlement .", "On an unspecified date the investigators questioned the applicants ' neighbour , PERSON U. , who stated that on DATE he had been at home . At TIME he had heard an explosion and seen clouds of smoke and the neighbours running to the scene . There they had found the remains of the applicants ' sons . After that military servicemen had arrived at the scene . The witness had heard some people saying that the explosion had been caused by a projectile ; others had thought that it must have been a landmine . He also stated that at the material time landmines quite often exploded on that street .", "On an unspecified date the investigators questioned PERSON , whose statement concerning the events of DATE was similar to the CARDINAL given by PERSON U.", "On an unspecified date the investigators obtained information to the effect that on DATE the military unit Don-CARDINAL stationed in ORG had been shelled by an illegal armed group under the command of Mr DATE . , and that on that date the military unit had not used large - calibre weapons .", "Despite specific requests by ORG did not disclose any documents from criminal case no . CARDINAL , stating that an investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW , since the file contained information concerning participants in criminal proceedings .", "On DATE the applicants complained to the ORG town court that there was no effective investigation in the criminal case . On DATE the court allowed their complaint in part . It instructed the prosecutor 's office to resume the investigation and take a number of investigative steps . The court rejected the applicants ' complaint in the part concerning their request for access to the investigation file . On CARDINAL DATE ORG upheld this decision on appeal .", "On DATE the applicants again complained to the ORG town court that the investigation in the criminal case was ineffective and requested that the suspended proceedings be resumed . On DATE the court rejected their complaint as groundless , stating that the prosecutor 's office had resumed the criminal proceedings ( see paragraph CARDINAL above ) .", "For a summary of the relevant domestic law see ORG and Others v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE ) ." ]

[ "2" ]

[]

[]

[ "2" ]

[]

[]

[ "The applicant was born in DATE and lives in GPE . He is currently detained in FAC .", "On DATE the applicant was held in custody . It does not result from the case - file whether the applicant remains detained in this set of proceedings .", "On DATE the applicant was arrested on suspicion of murder , attempted robbery and drug trafficking committed in an organised criminal group .", "On DATE ORG ( Sąd Rejonowy ) remanded him in custody , relying on a reasonable suspicion that he had committed the offences in question . The court indicated that the evidence which had been gathered in the case , in particular the testimonies of witnesses and other suspects , showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged . It attached importance to the risk that he would attempt to induce witnesses to give false testimony or , by other means , would obstruct the proceedings . The latter risk was considered of the utmost importance in the light of the fact that the case involved a large number of alleged accomplices .", "An appeal by the applicant against the detention order , likewise his further appeals against decisions extending his detention and all of his subsequent , numerous applications for release and appeals against refusals to release him , were unsuccessful .", "In the course of the investigation , the applicant ’s pre - trial detention was extended on several occasions , namely , on DATE ( to CARDINAL October CARDINAL ) , CARDINAL DATE ( to CARDINAL DATE ) , CARDINAL DATE ( to DATE ) , DATE ( to CARDINAL DATE ) , CARDINAL DATE ( to CARDINAL DATE ) , CARDINAL DATE ( to CARDINAL DATE ) and CARDINAL DATE ( to CARDINAL DATE ) . In their decisions , the courts stressed the fact that the applicant had been acting in an organised criminal group . They underlined the unique nature of the proceedings involving organised crime , in which the authorities had to determine the degree of alleged responsibility of each of the suspects . The courts attached importance to the seriousness of the charges and the likelihood of a severe sentence being imposed on the applicant .", "On DATE ORG refused to extend the applicant ’s detention . It stated that the applicant had been held in pretrial detention since DATE and that this period should have been sufficient for the authorities to collect evidence in the applicant ’s case . In addition , it considered that the decision about the extension of the applicant ’s pre - trial detention beyond DATE should be taken by ORG ( PERSON ) .", "The Prosecutor lodged an interlocutory appeal against this decision .", "On DATE ORG amended the contested decision and extended the applicant ’s pre - trial detention to CARDINAL DATE . The court argued that as the applicant was remanded in custody in the first set of criminal proceedings , his detention in the second set of proceedings was merely administrative . It further stated that the applicant was charged with serious offences committed in an organised criminal group and that there was a high risk that , if released , he would attempt to induce witnesses to give false testimony or , by other means , would obstruct the proceedings . Finally , the court observed that the Prosecutor could not have completed the investigation as evidence in proceedings involving organised crime often emerged gradually .", "On DATE ORG extended the applicant ’s detention to DATE .", "On an unspecified date the Prosecutor requested ORG to extend the applicant ’s detention to DATE .", "On DATE ORG extended the applicant ’s detention to DATE . The court observed that the applicant ’s pre - trial detention had been extended for over DATE almost automatically and it did not seem that the investigation was reaching its final stage . It concluded that the extension of the applicant ’s detention for a shorter period than was requested by the ORG should prompt the authorities to accelerate the acts of investigation regarding the applicant .", "The applicant lodged an interlocutory appeal against this decision claiming that he had been detained for DATE and that this period should have been sufficient for completing the investigation .", "On DATE ORG quashed the contested decision . It stated that the decision about the extension of the applicant ’s pre - trial detention beyond the period of one year should be taken by ORG ( Sąd Apelacyjny ) .", "On DATE ORG extended the applicant ’s detention until DATE . The court underlined the complexity of the case and the severity of the penalty to which the applicant was liable . Having regard to the organised character of the alleged criminal activities , it also held that the applicant ’s detention was necessary in order to prevent the applicant from interfering with the proceedings .", "The Prosecutor lodged an interlocutory appeal against this decision claiming that DATE would not be sufficient for collecting evidence in the applicant ’s case .", "On DATE ORG modified the contested decision and extended the applicant ’s detention until DATE . The court observed that the applicant’", "On DATE a bill of indictment was lodged with ORG . The applicant was charged with murder , attempted robbery and drug trafficking committed in an organised criminal group .", "On DATE ORG extended the applicant ’s pre - trial detention to DATE .", "NORP In DATE the case was referred to the PERSON ORG .", "On several occasions the PERSON ORG applied to ORG , asking for the applicant ’s detention to be extended . ORG allowed all those requests extending the applicant ’s pre - trial detention on DATE ( to DATE ) , CARDINAL DATE ( to CARDINAL DATE ) , DATE ( to CARDINAL DATE ) , CARDINAL DATE ( to CARDINAL October CARDINAL ) , CARDINAL DATE ( to DATE ) , CARDINAL DATE ( to CARDINAL DATE ) and CARDINAL DATE ( to CARDINAL DATE ) .", "The criminal proceedings against the applicant are still pending . The applicant remains detained .", "The applicant submitted that during the entire period of his detention he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene .", "The relevant domestic law and practice concerning the imposition of pre - trial detention ( tymczasowe aresztowanie ) , the grounds for its extension , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . GPE , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ." ]

[ "5" ]

[ "5-3" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in the town of PERSON in the PERSON - on - Don Region .", "In DATE the applicant deposited his savings with “ ORG ” , a NORP investment company . In DATE , when the applicant came to GPE to recover his deposit , he found the company ’s offices closed .", "On DATE the applicant lodged a civil action against the company in ORG of GPE . The court disallowed the applicant ’s action for lack of territorial jurisdiction .", "On DATE the applicant brought an action against the company before ORG of GPE . Citing lack of territorial jurisdiction , on CARDINAL DATE ORG transferred the case to GPE . The Government submitted that there was no indication in the case - file of the receipt of the claim by ORG . The applicant challenged this statement , referring to the “ forwarding note ” of CARDINAL DATE , from ORG to ORG , which had been copied to him .", "On DATE the applicant sent a letter to ORG with a request to explain the delay in examination of his case . No answer was given .", "NORP In DATE the applicant lodged yet another action against the company with ORG . It was not accepted for lack of hierarchical jurisdiction .", "On DATE the applicant brought an action against the company before ORG of GPE . On DATE ORG forwarded the applicant ’s statement of claim to ORG , which , in turn , sent the claim on DATE to ORG of GPE .", "On DATE the Convention entered into force in respect of GPE .", "The parties offered different versions of further proceedings .", "On DATE the applicant received a summons to appear before the ORG of GPE on DATE at TIME The summons was delivered by regular mail and put in his letter box .", "On DATE the applicant found in his letter box a summons to appear before the ORG of GPE on DATE .", "On DATE , on coming home from the office , the applicant found in his letter box a summons to appear before the ORG of GPE on DATE at TIME", "The applicant submitted to the ORG copies of the above summonses certified by a notary public .", "The applicant did not receive any further summonses or communications from ORG .", "On DATE the applicant sent a letter to ORG , requesting it to account for the delay in the proceedings . On DATE the applicant ’s letter was returned to him with a handwritten request to specify the date when the action had been lodged . The applicant wrote the date on the same letter and sent it back on DATE . No answer was received .", "The Government denied the applicant ’s submission that the hearings had been listed for DATE and CARDINAL [ sic ] DATE as not supported with the case - file materials .", "According to them , the first hearing on the applicant ’s claim was fixed for DATE . As the parties failed to appear , the hearing was adjourned until DATE . The applicant was advised of the new date and he received the summons on DATE .", "On DATE the hearing was adjourned until DATE , as both parties were absent . The applicant received the notice about the adjournment on DATE .", "On DATE the ORG of Moscow left the applicant ’s claim “ without examination ” , finding as follows :", "“ The parties failed to appear twice , on DATE and DATE ; they were notified of the hearing date ; the plaintiff does not ask for a default judgment , he did not produce the original documents and receipts , the copies submitted are not properly certified ; the court does not consider it possible to examine the case on the basis of the materials in the file . ”", "The decision indicated that an appeal lay to the city court against it within DATE .", "At the ORG ’s request , the Government enclosed a copy of the decision of DATE with their additional observations of DATE .", "NORP In support of their statements the Government produced the front and back pages of the case - file .", "The front page contains the name of the court , the names of the parties and the following handwritten notes :", "“ Received : DATE . Examined : DATE at TIME CARDINAL DATE at TIME DATE at TIME filed on DATE . ”", "The back page contains the following handwritten notes :", "“ Summons for DATE Summons for DATE [ Copy of the decision sent ] to the plaintiff on DATE CARDINAL DATE . ”", "Article CARDINAL of ORG of DATE ( in force at the material time ) provided that civil cases were to be prepared for a hearing DATE after the action had been lodged with the court . In exceptional cases , this period could be extended for DATE . Civil cases were to be examined DATE after the preparation for the hearing had been completed .", "Article CARDINAL provided that summonses were to be served on the parties and their representatives in such way so that they would have enough time to appear timely at the hearing and prepare their case . If necessary , the parties could be summoned by a phone call or a telegram .", "Article CARDINAL § CARDINAL provided that the court could make an interim decision to leave the claim “ without examination ” ( определение об оставлении заявления без рассмотрения ) , in particular , if the parties had not waived their right to be present and had failed to appear for the second time and the court did not consider it possible to determine the claim on the basis of the case - file . Article CARDINAL required the judge to include in the decision specific instructions on how to eliminate the obstacles to the examination of the claim . Upon removal of the circumstances on which the decision to leave the claim without examination was founded , an interested party could request the court to resume the proceedings . The court could reverse its decision to leave the claim without examination if the parties proved that they had had valid reasons for the absence .", "Article CARDINAL required a copy of an interim decision to leave the claim without examination to be sent to the absent party DATE after it had been made ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The first applicant , Mr PERSON , is an NORP national who was born in DATE . The second applicant , PERSON , is a NORP national who was born in DATE . The couple live in GPE . They are represented before the ORG by PERSON , a lawyer practising in GPE .", "The first applicant wanted to marry the second applicant in GPE . On DATE he contacted ORG in GPE and ORG , in order to acquire information about the procedure to obtain a visa for marriage purposes .", "The latter institutions replied by sending information related to the application for a tourist visa .", "On DATE all relevant documents satisfying the requirements of the tourist visa were sent to the ORG . According to the applicants , it was apparent from the information they were given that no visa for marriage purposes could be requested .", "On DATE ORG in GPE informed the applicants that their request would be rejected . The applicants were told that no visas had been issued in favour of NORP nationals for DATE .", "On DATE , after all the documents necessary for the marriage had been supplied and verified , the municipality of GPE issued the couples’ marriage bans . The applicants’ lawyer made a request to the competent NORP authorities for the second applicant ’s visa for marriage purposes . He did not receive any replies .", "As the second applicant was pregnant , the first applicant went to GPE in order to celebrate the marriage over there .", "On DATE the applicants got married in GPE .", "On DATE the NORP authorities granted the second applicant a visa in her quality of an NORP national ’s family member . The couple moved to GPE and started to reside there .", "On DATE the applicants presented to the Police station in GPE a request for a residence permit for the second applicant ’s family members .", "On DATE the applicants addressed a registered letter to the NORP Minister of ORG . They asked in what way it would be possible to obtain a visa for family members , in order to reunite in GPE the second applicant ’s relatives . They were told that it would have been possible to allow the entry in GPE of the mother of the second applicant but not of her brothers .", "On DATE the applicants requested ORG to issue a written declaration stating that the matrimonial home was the residence of the second applicant . However , ORG could not accede to this request as the second applicant did not possess a residence permit .", "On DATE the applicants requested that the second applicant be granted NORP citizenship . Their request was rejected as according to NORP law , citizenship could be granted either after a marriage and DATE of residence or after DATE of marriage . Moreover , the processing of the citizenship request would have required CARDINAL .", "According to the information provided by the applicants on DATE , on that date the second applicant had not obtained a residence permit in GPE ." ]

[]

[]

[]

[]

[]

[]

[ "The first applicant is ORG , ORG ( “ the POA ” ) , a listed and certified trade union in GPE . The other applicants are NORP nationals : PERSON , born in DATE , and Mr PERSON , born in DATE . They are both resident in GPE and are employed as prison officers , PERSON in a ORG - run prison and Mr LOC in a prison that was transferred to private - sector management in DATE . They are members of the ORG . PERSON indicated she is the chair of the union branch in her establishment , and Mr PERSON indicated that he is secretary to the union branch in his place of employment .", "The applicants were represented by PERSON of ORG , a law firm in GPE , and advised by Mr PERSON and Professor PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON of ORG .", "A joint submission was received from ORG ( ORG ) and ORG ( ORG ) , which had both been given leave by the President to intervene CARDINAL parties in the written procedure ( LAW CARDINAL § CARDINAL ) .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE it was established that prison officers were forbidden by law to take industrial action . The issue arose in the context of injunction proceedings taken against the ORG to prevent it organising industrial action ( ORG v. PERSON , DATE , unreported ) . ORG ( DATE J ) ruled that since prison officers were vested with the “ powers or privileges of a constable ” ( Prisons Act , DATE , section CARDINAL) , they were for this reason expressly excluded from the terms “ employees ” and “ workers ” within the meaning of the statutory provisions governing lawful industrial action ( ORG , DATE , sections CARDINAL and CARDINAL ) . DATE , legislation was introduced to restore to prison officers the status of workers for the purpose of employment law , while maintaining the ban on industrial action ( ORG and LAW , DATE , sections CARDINAL and CARDINAL ) . The parties expressed contrasting views on these developments . For the applicants , the PERSON ruling was “ an unintended legal anomaly ” , and section CARDINAL of the DATE LAW a sudden change of long - standing policy by fixing in legislation what was a surprising and unheralded court decision ” . The ORG rejected that view , stating that it was the intention of ORG to give a clear statutory basis to the ban on industrial action by prison officers , rendered necessary by the willingness of the ORG to take such action .", "Industrial relations in the prison service are conducted in various formats and in accordance with a variety of procedures . As in other parts of the public sector in GPE , there are in the prison service what are known as \" ORG \" , at both local and national level . These are joint bodies , made up of representatives of management and staff , whose purpose is to facilitate co - operation . Acting principally as forums for consultation and dialogue , they do not encompass binding dispute settlement mechanisms . For this reason , the applicants considered that the dialogue that takes place within ORG is not true collective bargaining . They held the same view in relation to the establishment - level disputes procedure ( ORG . CARDINAL ) , which details the procedure to be followed in such situations but does not lead to a resolution binding on management .", "There have been successive industrial relations - agreements within the prison sector . In DATE , the ORG and the prison service entered into LAW ( “ ORG ” ) . The ORG , which did not apply to the issue of remuneration , included a legally binding prohibition on strike action . The applicants described the ORG as “ asymmetric ” in this regard , as there was no equivalent binding obligation on the part of the ORG . There were disagreements between the CARDINAL sides over the precise scope of application of the ORG . On DATE the ORG served notice of their intention to withdraw from the ORG , which terminated DATE .", "A new agreement , ORG ( “ FAC ” ) , was reached in DATE . It too contained an undertaking by the ORG not to take industrial action . The ORG , which did not apply to remuneration , took effect in DATE . At the same time , the statutory prohibition on industrial action was disapplied . Formal assurances were given to ORG that it would be reactivated in the event of the ORG being terminated . According to the applicants , there was again repeated disagreement between the CARDINAL sides as to the scope of the ORG , leading the ORG to give notice of termination in DATE , effective DATE . The ORG stated that on the whole the ORG operated successfully , as shown by the number of new policies introduced within the prison service and the number of changed policies , which were adopted without dispute . They added that , notwithstanding the undertaking given , the ORG threatened industrial action in DATE , DATE and DATE . A special delegates’ conference of the ORG voted in DATE not to accept any further agreement that included a no - strike undertaking . With the termination of the FAC on DATE , the statutory prohibition on industrial action was brought back into force . A new provision was added to the DATE Act empowering the Secretary of ORG to suspend and revive the prohibition ( section CARDINALA ) .", "A new agreement within the prison service took effect in DATE , ORG for Changes for Specified Terms and Conditions ( “ the ORG ” ) and is currently in force . It provides for binding arbitration , but , like previous agreements , does not apply to pay . The situation in GPE is different . There the Voluntary Industrial Relations Agreement for the NORP prison service provides that , in the absence of agreement , pay disputes are to be resolved by binding independent arbitration .", "The issue of remuneration of prison officers employed in ORG - run prisons in GPE , GPE and GPE comes within the remit of ORG ( “ PSPRB ” ) , created in DATE . For private - sector prison establishments , remuneration and other employment matters are agreed contractually .", "Composed of independent members , the function of the ORG is to make recommendations DATE on prison - officer pay to the Secretary of ORG for ORG . At the outset of each exercise , the Secretary of ORG may give directions , in the form of a “ remit letter ” , to the ORG setting out the considerations to which they are to have regard ( Regulation CARDINAL , ORG ( Pay Review Body ) Regulations DATE ) . This power has been used repeatedly . In addition , the Chair of the PSPRB meets with the Chancellor of the ORG or the Chief Secretary of the ORG prior to the start of each review exercise to discuss the general economic context . Trade union involvement in the process takes the form of submitting evidence and making representations to the PSPRB ( Regulation CARDINAL ) . The ORG ’s recommendations are not binding on the Secretary of ORG , who may accept them , or “ make such other determination ... as he thinks fit ” ( Regulation CARDINAL , Prison Service ( ORG ) .", "On DATE the ORG brought a complaint before ORG alleging that the statutory prohibition of industrial action by prison officers constituted a breach of the right to strike under ORG No . DATE . The ORG ’s conclusions on the case are set out below ( at paragraphs CARDINAL and following ) .", "The applicants stated that industrial action , including strike action , occurred from time to time in the prison service before DATE . They provided examples of strikes at local level and , at national level , of other forms of industrial action in DATE . On DATE the ORG organised , for the first time , a national strike by prison officers , in protest against the ORG ’s decision to stage DATE pay rise . According to the Government , notice of the strike was given by telephone TIME before the strike commenced at TIME lawyers obtained an injunction against the ORG by TIME that day . Prison officers returned to work that TIME , TIME after the strike began . The strike disrupted the normal operation of the prison service , and in CARDINAL institute for young offenders the absence of prison officers led to serious disorder that lasted for DATE and caused extensive material damage . The applicants countered that DATE had passed without incident in CARDINAL other prison establishments affected by the strike . As for the establishment referred to by the Government , an official report into the incident had noted that the rationale for the violence was complex , the strike by prison officers being just CARDINAL contributing factor , amplified by negative reporting on television . The report had considered that the indiscipline was spontaneous , and so could not have been foreseen or avoided .", "The Government maintained that the ORG was intent on withholding its ORG services as part of a general public service strike on CARDINAL DATE , and that it had sought to rely on health and safety concerns which the Government described as spurious . The situation was ultimately resolved DATE before under threat of legal action . The applicants rejected the ORG ’s account , asserting the validity of their concerns at the time , given that other categories of prison staff would be on strike , as well as fire services and ambulance crew . On DATE of the strike , ORG members had merely held lunchtime meetings , with management permission , so as to demonstrate their support for the aims of the strike . Another public - sector strike took place on DATE . According to the Government , the ORG indicated beforehand that its members would just attend lunchtime meetings . Despite this , ORG members stayed away from work for TIME in over CARDINAL establishments , necessitating the intervention of prison service lawyers . The applicants denied that the actions of ORG members on DATE amounted to industrial action . They noted that while here had been correspondence from prison - service lawyers , no proceedings had been issued and that the ORG leadership had ordered its members to resume work at lunchtime . The action taken DATE had not led to any danger to persons or property .", "The Prisons Act DATE provides at section CARDINAL :", "“ Every prison officer while acting as such shall have all the powers , authority , protection and privileges of a constable . ”", "The relevant provisions of ORG DATE read as follows :", "“ ORG from certain tort liabilities .", "( CARDINAL ) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only—", "( a ) that it induces another person to break a contract or interferes or induces another person to interfere with its performance , or", "( b ) that it consists in his threatening that a contract ( whether one to which he is a party or not ) will be broken or its performance interfered with , or that he will induce another person to break a contract or interfere with its performance .", "( CARDINAL ) An agreement or combination by CARDINAL or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination would not be actionable in tort .", "...", "CARDINAL.— Meaning of ‘ trade ORG in Part V.", "( CARDINAL ) In this Part a ‘ trade ORG means a dispute between workers and their employer which relates wholly or mainly to CARDINAL or more of the following—", "...", "CARDINAL Police service .", "( CARDINAL ) In this Act ‘ employee’ or ‘ ORG does not include a person in police service ; and the provisions of sections CARDINAL and CARDINAL ( rights in relation to trade union membership : access to employment ) do not apply in relation to police service .", "( CARDINAL ) ‘ Police service’ means service as a member of any constabulary maintained by virtue of an enactment , or in any other capacity by virtue of which a person has the powers or privileges of a constable . ”", "The Criminal Justice and LAW DATE provides as relevant :", "“ CARDINAL.— Inducements to withhold services or to indiscipline .", "( CARDINAL ) A person contravenes this subsection if he induces a prison officer—", "( a ) to take ( or continue to take ) any industrial action ;", "( b ) to commit a breach of discipline .", "( CARDINALA ) In subsection ( CARDINAL ) ‘ industrial action’ means—", "( a ) the withholding of services as a prison officer ; or", "( b ) any action that would be likely to put at risk the safety of any person ( whether a prisoner , a person working at or visiting a prison , a person working with prisoners or a member of the public ) .", "( CARDINAL ) The obligation not to contravene subsection ( CARDINAL ) above shall be a duty owed to the Secretary of ORG or , in GPE , to ORG or , in GPE , to ORG .", "( CARDINAL ) Without prejudice to the right of the Secretary of ORG or , in GPE , to ORG or , in GPE , of ORG , by virtue of the preceding provisions of this section , to bring civil proceedings in respect of any apprehended contravention of subsection ( CARDINAL ) above , any breach of the duty mentioned in subsection ( CARDINAL ) above which causes the Secretary of ORG or , in GPE , to ORG or , in GPE , ORG to sustain loss or damage shall be actionable , at his suit or instance , against the person in breach .", "( CARDINAL ) In this section ‘ prison ORG means any individual who—", "( a ) holds any post , otherwise than as a chaplain or assistant chaplain or as a medical officer , to which he has been appointed ... under section CARDINAL(CARDINAL ) of FAC ( GPE ) DATE ( appointment of prison staff ) , or", "( aa ) holds any post , other than as a chaplain or assistant chaplain , to which he has been appointed for the purposes of section CARDINAL of the Prison Act DATE ( appointment of prison staff ) ,", "( c ) is a custody officer within the meaning of Part I of this LAW or a prisoner custody officer , within the meaning of Part IV of LAW DATE or LAW or III of this Part .", "( CARDINAL ) The reference in subsection ( CARDINAL ) above to a breach of discipline by a prison officer is a reference to a failure by a prison officer to perform any duty imposed on him by the prison rules or any code of discipline having effect under those rules or any other contravention by a prison officer of those rules or any such code .", "( CARDINAL ) In subsection ( CARDINAL ) above ‘ the prison rules’ means any rules for the time being in force under LAW DATE or CARDINAL of FAC ( GPE ) DATE ( prison rules ) .", "... ”", "ORG ( ORG , which entered into force on DATE , provide as relevant :", "“ Establishment of ORG", "The Prime Minister shall appoint a ORG to examine and report on such matters relating to the rates of pay and allowances to be applied to the prison service in GPE and GPE , and GPE , as may from time to time be referred to them by the Secretary of ORG .", "...", "Directions", "With respect to matters referred to ORG by him , the Secretary of ORG may give directions to ORG as to the considerations to which they are to have regard and as to the time within which they are to report ; and any such directions may be varied or revoked by further directions under these Regulations .", "Notice", "Where a matter has been referred to ORG , they shall give notice of the matter and of any relevant direction to such organisations appearing to them to be representative of persons working in the prison service in GPE and GPE , and GPE , and shall afford every such organisation a reasonable opportunity of submitting evidence and representations on the issues arising ,", "Report", "Where a matter has been referred to ORG , their report shall contain their recommendations on that matter and such other advice relating to that matter as they think fit .", "...", "Determination of rates of pay and allowances", "Where , following the reference of any matter to them ORG have made a report , the Secretary of ORG may determine the rates of pay and allowances to be applied to the prison service in GPE and GPE , and GPE , in accordance with the recommendations of ORG , or make such other determination with respect to the matters in that report as he thinks fit . ”", "As noted above ( see paragraph CARDINAL ) , the ORG made a complaint before ORG in DATE , examined as case no . CARDINAL . While there is no provision in the LAW adopted by ORG expressly recognising a right to strike , both ORG and ORG on ORG have progressively developed a number of principles relating to the right to strike , based on Articles CARDINAL and CARDINAL of ORG of the Right to Organise Convention , DATE ( No . DATE ) ( see “ Giving globalisation a human face ” , ORG , DATE , at paragraph CARDINAL ) . This Convention was ratified by GPE on DATE . The ORG alleged that section CARDINAL of the DATE Act constituted a breach of the right to strike , as prison officers did not exercise authority in the name of the ORG and did not provide essential services in the strict sense of the term . It further complained that no adequate compensatory measures had been put in place whereby prison officers or their union could protect their interests in the absence of a right to strike .", "NORP In its first consideration of the case ( ORG , DATE ) , ORG held :", "“ CARDINAL . The ORG has considered that officials working in the administration of justice are officials who exercise authority in the name of the ORG and whose right to strike could thus be subject to restrictions or even prohibitions [ see ORG , op . cit . , para . CARDINAL ] . The ORG considers that to the extent that prison officers and prisoner custody officers exercise authority in the name of the ORG , their right to strike can be restricted or even prohibited .", "...", "ORG recalls that to determine situations in which a strike could be prohibited , the criteria which have to be established are the existence of a clear and imminent threat to the life , personal safety or health of the whole or part of the population [ see Digest , op . cit . , para . CARDINAL ] . The ORG considers that the prison service is clearly one where the interruption of the service could give rise to an imminent threat to the life , personal safety or health of the whole or part of the population , in particular , the prisoners and the wider public .", "Considering that the prison service constitutes an essential service in the strict sense of the term and that prison officers , as well as prisoner custody officers to the extent that they perform the same functions , exercise authority in the name of the ORG , the ORG is of the view that it is in conformity with freedom of association principles to restrict or prohibit the right to take industrial action in the prison service . ”", "ORG then raised the issue of compensatory guarantees :", "“ CARDINAL . ... ORG recalls that where the right to strike is restricted or prohibited in certain essential undertakings or services , adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services [ see Digest , op . cit . , para . CARDINAL ] . ORG requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike , and to keep it informed in this respect .", "...", "... [ T]he ORG notes that the Government does not specify the method ( including any relevant guidance or criteria ) for the appointment of the members of ORG , and recalls that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but if the confidence of both sides , on which the successful outcome even of compulsory arbitration really depends , is to be gained and maintained , they should also appear to be impartial both to the employers and to the workers concerned [ see Digest , op . cit . , para . CARDINAL ] . With regard to [ the nature of ORG recommendations ] , the ORG notes that the Government does not specify which exceptional circumstances might justify a departure from the recommendations of ORG . ORG also observes that the text of LAW of ORG ( ORG , DATE , seems to leave complete discretion upon the Secretary of ORG as regards the implementation of the recommendations of ORG , by providing that ‘ where , following the reference of any matter to them , ORG has made a report , the Secretary of ORG may determine the rates of pay and allowances to be applied to the prison service in GPE and GPE , and GPE , in accordance with the recommendations of ORG , or make such other determination with respect to the matters in that report as he thinks fit’ . ORG recalls that as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service , restrictions on the right to strike should be accompanied by adequate , impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards , once made , are fully and promptly implemented [ see Digest , op . cit . , para . CARDINAL ] . ORG requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison ORG pay in GPE , GPE and GPE . In particular , the ORG requests the ORG to continue to ensure that : ( i ) the awards of ORG are binding on the parties and may be departed from only in exceptional circumstances ; and ( ii ) the members of ORG are independent and impartial , are appointed on the basis of specific guidance or criteria and have the confidence of all parties concerned . ORG requests to be kept informed in this respect . ”", "ORG submitted the following recommendations to ORG :", "“ CARDINAL . In light of the foregoing conclusions , the ORG invites ORG to approve the following recommendations :", "( a ) Noting that the prison service is an essential service in the strict sense of the term where the right to strike can be restricted or even prohibited , the ORG requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike .", "( b ) ORG requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison ORG pay in GPE , GPE and GPE . In particular , the ORG requests the ORG to continue to ensure that :", "( i ) the awards of ORG are binding on the parties and may be departed from only in exceptional circumstances ; and", "( ii ) the members of ORG are independent and impartial , are appointed on the basis of specific guidance or criteria and have the confidence of all parties concerned .", "( c ) The ORG requests to be kept informed of developments in respect of the above . ”", "ORG approved them ( Minutes of the CARDINALnd Session , DATE , paragraph CARDINAL ) .", "Since its initial assessment of the case , ORG has reviewed the situation periodically . In its Report No . CARDINAL of DATE , it regretted the state of relations between the ORG and the ORG , and that little progress had been made in improving the mechanism for the determination of prison ORG pay . Regarding the binding nature of ORG awards , that report states :", "“ CARDINAL . ... [ T]he ORG notes the ORG ’s statement that matters of public finances are for the Government to decide and that departures from ORG recommendations might on occasion become necessary to ensure acceptable award levels . ORG recalls that the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with the terms of awards handed down by a compulsory arbitration tribunal . Any departure from this practice would detract from the effective application of the principle that , where strikes by workers in essential services are prohibited or restricted , such prohibition should be accompanied by the existence of conciliation procedures and of impartial arbitration machinery , the awards of which are binding on both parties . ”", "NORP The most recent consideration of the situation is contained in Report No . CARDINAL of ORG , of DATE . ORG took note of the information provided by the Government on latest developments ( including the ORG ) and commented :", "\" CARDINAL . The ORG notes the information provided by the Government with satisfaction . Observing that it has been dealing with this case DATE and has been requesting the Government to initiate consultations with the complainant and the prison service with a view to achieving a satisfactory solution to the need to provide for an appropriate mechanism to compensate for the strike prohibition , the ORG wishes to recognize the efforts made by all the parties concerned and commends the Government ’s desire to address the issues raised in this case . It encourages the ORG to maintain full , frank and meaningful consultations with all interested parties in the future . \"" ]

[]

[]

[]

[]

[]

[]

[ "The applicants were born in DATE , DATE and DATE respectively and live in ORG .", "The applicants were arrested and taken into custody on DATE and DATE respectively on suspicion of their involvement in the throwing of Molotov cocktails at various public buildings . On DATE ORG ordered their remand in custody . The applicants were aged DATE ( PERSON ) and DATE ( the other applicants ) at the time of the events .", "On DATE the public prosecutor at ORG filed a bill of indictment against the applicants and CARDINAL other persons , accusing them of throwing Molotov cocktails at the LOC primary school and the LOC public garage on DATE and of attempting to throw Molotov cocktail at the LOC primary school with a view to supporting the activities of an illegal organisation , namely the ORG ( ORG Party ) . The charges were brought under LAW of LAW .", "On DATE the criminal proceedings against the applicants and CARDINAL other accused commenced before ORG .", "On CARDINAL DATE the court heard the applicants who refuted the allegations against them and their earlier submissions given before the police , public prosecutor and ORG . They also challenged the accuracy of the arrest protocol and the report on the reconstruction of the events . The court decided to secure the testimony of those who had attended the arrest and the reconstruction of events and the submissions of the accused who were not detained . It further ordered that the birth date of PERSON and another accused be determined since they had claimed that they were actually born in DATE .", "DATE and DATE , ORG held QUANTITY hearings where it took various procedural decisions and postponed the trial as the procedure concerning the determination of DATE accused had not been completed .", "At the hearings held on DATE and DATE respectively , the court requested the prosecution and the defendants to submit their observations on the merits of the case . On DATE the applicants ' lawyer requested an extension for the submission of the applicants ' observations . This request was accepted by the court .", "NORP Throughout the proceedings the applicants ' lawyer repeatedly requested that the applicants be released pending trial . He maintained , inter alia , that they were juveniles and that their acts could not be considered to constitute an offence under LAW . The first instance court dismissed the applicants ' requests until DATE , having regard to the nature of the offence with which they were charged and the state of the evidence .", "NORP On DATE the court decided to defer sentencing the applicants and their co - accused , pursuant to LAW no . DATE . It therefore ordered the release of the applicants from detention .", "NORP The public prosecutor appealed .", "On DATE ORG upheld the decision of the first instance court .", "The relevant domestic law and practice in force at the material time are outlined in the PERSON and PERSON judgment v. GPE , ( no . CARDINAL , § § CARDINAL , DATE ) ." ]

[ "5" ]

[ "5-3" ]

[]

[ "6" ]

[ "6-1" ]

[]

[ "NORP The applicant association , the NORP - Mykhaylivska Parafiya ( “ the LOC ” ) of ORG of the Kyiv Patriarchate “ Church of DATE in the GPE ” in LOC of GPE , is a religious group . On DATE it had CARDINAL members , a figure which had increased to CARDINAL by DATE according to information provided by its representative on DATE . All the members sit on ORG . The head of the applicant association is PERSON PERSON .", "On DATE a group of CARDINAL people , including the head of the NORP , decided to form a religious association under the auspices of ORG . On DATE they decided to build a church and name it the “ ORG of DATE in the PERSON ” . The group lodged a request to register the association with ORG at ORG ( Рада з питань релігій при ORG ) and ORG .", "On DATE the ORG registered the group as a religious association of ORG in LOC of GPE ( the “ religious association ” ) .", "On DATE ORG informed PERSON that the religious association had been granted permission to build a church for the use of its members .", "On DATE the religious association approved its statute and elected its governing bodies ( the Parishioners ' Assembly , ORG and ORG ) . It decided to admit CARDINAL new members to ORG and to elect CARDINAL of its members to ORG and ORG . Mr PERSON was elected as a member of ORG and became its chairman .", "On DATE ORG registered changes to the governing bodies of the religious association . Mr PERSON was registered as its chairman , ORG as deputy chairman and ORG as a treasurer of the religious association . The ORG also registered the changes to the composition of ORG .", "From the date of its creation in DATE the ORG membership varied from CARDINAL members . In the course of this period the Parishioners ' Assembly was actively involved in making important decisions as to the management and administration of the religious association ( appointment of Chairman , treasurer , supervisory board , approval of appointment of a priest , approval of the statutes of ORG , missions and brotherhoods of the church , important financial and logistical matters and issues related to construction of a new church , etc . ) . Throughout this period My PERSON acted as a Chairman of the religious association and frequently as a secretary during the meetings of ORG .", "NORP On DATE the Parishioners ' Assembly passed resolutions for the religious association to change denomination , as it was dissatisfied with the leadership of Archbishop PERSON , the head of the newly registered ORG of Kyiv Patriarchate , and for it to become independent in its organisational , religious and commercial activities . It was also decided that it should act under the religious guidance of the Archbishop of ORG in canonical issues .", "On DATE the Parishioners ' Assembly adopted a new statute seeking its registration as a legal entity . The ORG requested Archbishop PERSON of ORG ( Moscow Patriarchate ) to approve the statute . The name of the association was changed to “ Svyato - Mykhaylivska GPE of ORG of the Kyiv Eparchy Church of DATE in the PERSON ” ( the “ NORP ” ; ORG парафія ORG православної церкви Київської єпархії « Храму на честь CARDINAL-ліття хрещення PERSON ) .", "On DATE the representative of the President of GPE in GPE made a formal decision to register the statute of the LOC ( статут релігійної організації ) . From that date onwards the LOC , as a registered legal entity , belonged to ORG ( Moscow Patriarchate ) . The new statute stated :", "“ ( ... ) CARDINAL . Svyato - Mykhaylivska Parafiya ( a religious group ) is a religious association of ORG of the Kyiv Patriarchate “ Church of CARDINAL,CARDINAL-years of Baptisms in the GPE ” ( hereinafter the ' Parish ' ) and is created for the purposes of mutual affiliation and the spreading of NORP religion and faith . It is composed of secular priests , ministers and laymen and is a part of ORG of the Kyiv PERSON ( PERSON єпархії ORG ) .", "( ... ) CARDINAL . The highest governing body of the LOC is ORG , which is eligible in presence of not CARDINAL of members of ORG . Resolutions of the Parishioners ' Assembly shall be adopted by a simple majority .", "In its religious activities , the NORP shall be guided by the priest – prior , who shall be elected by ORG . In its administrative - financial activities , it shall be subordinate to ORG .", "( ... ) CARDINAL . The Parishioners ' Assembly shall accept new members from clergymen and laymen at their request , provided they are DATE , attend religious services and confession , follow the canonical guidance of the prior and have not been excommunicated by the church or are being judged by the religious court .", "( ... ) CARDINAL . All official NORP documents shall be signed by the prior and the chair of ORG ; banking and other financial documents shall be signed by the chair of ORG and the treasurer .", "( ... ) CARDINAL . Decisions as to changes and amendments to the statute shall be proposed by ORG and adopted by ORG ...", "Changes and amendments to the statute shall be made in the same manner and within the same time - limits as those applicable to the registration of the statute . ”", "On DATE the Parishioners ' Assembly , in accordance with a proposal by the new prior , refused to introduce changes and amendments to the statute until the construction of the new church building for the use of religious association was finalised . The proposed statute had to conform to the standard statutes of religious associations belonging to ORG ( Moscow Patriarchate ) .", "In DATE and DATE PERSON signed a number of documents relating to the construction of the new church in his capacity as chairman of ORG . These documents , which included contracts and decisions of the architectural and ORG bodies , were accepted by him as the head of ORG and countersigned in a number of instances by various ORG officials .", "On DATE the Parishioners ' ORG examined complaints about the management of the church that had been sent to Archbishop PERSON by new lay members . The ORG also decided not to make the changes and amendments to the statute of the NORP necessary for its conformity with the standard statute used by ORG ( Moscow Patriarchate ) ” .", "On DATE , the Parishioners ' Assembly examined the construction works at the site of the new church and decided not to make any changes to the statute until the works had been completed . It also heard complaints from ORG members about Mr PERSON 's alleged abuse of funds that had been raised for the construction of the church and against a prior of the NORP , who allegedly had no authority to act .", "On DATE a commission set up by the Moscow Patriarchate condemned the economic activities of the NORP , as being badly managed and removed the books of account .", "On DATE the Parishioners ' Assembly resolved not to retain Father PERSON as prior and requested Archbishop PERSON of ORG to appoint a different prior . They also condemned the activities of the former prior , Father PERSON , who had allegedly misused charitable aid from GPE and acted fraudulently . ORG also decided to proceed with criminal complaints it had lodged with the police against Father PERSON and Father PERSON .", "On DATE CARDINAL members of ORG allowed requests from CARDINAL members of the ORG not to participate in its activities owing to pressure from the GPE Patriarchate on the LOC and the attempts of Father PERSON to split the NORP . CARDINAL members of the ORG were elected as honorary members , with a right of “ advisory vote ” . CARDINAL new member was admitted to the ORG . The ORG condemned the report of CARDINAL November DATE and the decision to remove the LOC 's accounting papers . PERSON also informed the ORG that Father PERSON had unlawfully withheld charitable aid given to the LOC in the amount of MONEY ( ORG ) . The ORG decided not to retain Father PERSON and Father PERSON as their priors and requested their transfer away from the NORP . The ORG was also informed by CARDINAL of its members that Archbishop PERSON refused to discuss with him the internal conflict in the LOC .", "According to the applicant association , on DATE the ORG consisted of CARDINAL individuals : Mr GPE , Ms B.I. , Mr PERSON , Mr PERSON , PERSON , PERSON , PERSON , PERSON , Mr K.A. , PERSON K.L. , Mr GPE , PERSON , Mr PERSON ( the Chairman of ORG ) , PERSON , Mr PERSON , PERSON , PERSON , PERSON ORG , Mr S.S. , Mr PERSON , Mr Ts . L. , PERSON . PERSON , PERSON . PERSON , PERSON . PERSON . , Mr PERSON . PERSON , Mr Sch . NORP and PERSON . PERSON", "On DATE the Parishioners ' Assembly , with CARDINAL of its CARDINAL members present , decided to withdraw from the jurisdiction and canonical guidance of ORG and to accept that of ORG . The following CARDINAL members of the ORG were not present during the meeting and did not vote for a change of jurisdiction : Mr PERSON , PERSON G.V. , PERSON PERSON , PERSON , Mr M.A. and PERSON . M. The ORG gave authority to CARDINAL members of the ORG , PERSON and Mr PERSON . PERSON . , to lodge a request with the Head of ORG for the registration of the changes and amendments to the LOC 's statute . The ORG requested Archbishop PERSON of the Kyiv Patriarchate to approve the changes and amendments .", "On DATE and DATE Archbishop PERSON declared the LOC a part of the Kyiv Patriarchate . He also appointed PERSON Pavlo Osnovyanenko as a prior and spiritual counsellor of the NORP .", "On DATE Mr Makarchykov and Mr Ye . Sh . lodged an application with ORG to register the amendments to its statute as a result of the change of denomination .", "On DATE Mr PERSON signed a contract on behalf of the NORP with a private contractor “ PERSON ” to ensure the security of the church LOC and the partly - constructed new church .", "The applicant association alleges that on DATE the church premises were taken over by CARDINAL clerics and lay people supporting ORG , who had arrived at the church in TIME . All the members of ORG signed a statement condemning this intrusion into their internal affairs by the representatives of another denomination . The construction work on the new church was also disrupted . According to the private firm responsible for security at the church officials of ORG of the ORG had warned them not to intervene in the conflict .", "On DATE Archbishop PERSON of the GPE Patriarchate authorised PERSON ( NORP ) , PERSON GPE , PERSON and PERSON and a lawyer of GPE , V.F. Volynets , to hold a meeting of ORG in the ORG .", "On DATE , CARDINAL supporters of ORG , who the applicant association alleged were from different churches in the city ( although , according to the ORG , CARDINAL were active members of the LOC ) , held a meeting at which they passed a vote of no confidence in Mr PERSON as chairman of ORG and elected new governing bodies for the church . In particular , they elected a new ORG composed of CARDINAL members ( the “ GPE ” ) , a treasurer and a supervisory board .", "The ORG also adopted the model statute for churches belonging to ORG ( Moscow Patriarchate ) . It approved a proposal from PERSON ( NORP ) of ORG to elect Father PERSON ( PERSON ) as the Chairman of ORG . TIME of the meeting of the ORG were approved by the secretary of ORG , PERSON PERSON , on DATE .", "On DATE the members of the original ORG requested the Minister of the ORG , the Head of ORG , ORG and other law - enforcement authorities to protect their church and property .", "On DATE the Deputy President of the Darnytsky ORG of GPE informed PERSON that he should address his complaints concerning the confiscation of church property to the courts in accordance with Articles CARDINAL and CARDINAL of the Code of Civil Procedure . The Deputy President also advised that any criminal complaints concerning alleged offences had to be lodged with the police or prosecutor with territorial jurisdiction .", "On DATE Archbishop PERSON of the Kyiv Patriarchate publicly protested against the “ seizure of the church ” by representatives of ORG . In particular , he stated in letters to the Chairman of ORG , the Minister of the ORG , ORG , the Head of ORG of the ORG , ORG and the Chairman of the ORG that ORG that had resolved to withdraw from the jurisdiction of ORG was the legitimate governing body of the LOC .", "On DATE , CARDINAL members of the original ORG composed of CARDINAL members held a meeting to discuss the events of CARDINAL DATE . They elected a ORG with the following composition : Mr PERSON , Chairman ; PERSON , ORG ; and PERSON , Assistant to the Chairman . Mr PERSON was approved as a prior of the NORP , upon a proposal from the Kyiv Patriarchate . The ORG elected ORG and asked Archbishop PERSON to approve their decisions .", "On the same date Archbishop PERSON of the GPE Patriarchate informed ORG that the documents that had been submitted for registration of the change of denomination were forged as the majority of the NORP members and its prior opposed the change of denomination to ORG .", "On DATE Archbishop PERSON of ORG issued a decree approving the composition of the original NORP governing bodies . He also confirmed that Mr Pavlo Osnovyanenko could serve as a prior of the LOC .", "On DATE and DATE CARDINAL private individuals , PERSON and PERSON PERSON , sought membership of the original ORG following their decision of DATE on the change of denomination .", "On DATE ORG found a number of infringements of economic regulations by the former managers of the NORP .", "On DATE a group of CARDINAL members of ORG ( PERSON ) lodged complaints with the President of GPE seeking his support in resolving the dispute between the GPE and GPE over the church premises and the decision of its members to change denomination .", "On DATE the Darnytsky ORG in GPE prohibited access to the church or other NORP property until a court had ruled on the change of denomination . Thereafter , the church LOC and its property were guarded by the police .", "On DATE ORG informed ORG that the denomination had been changed as a result of PERSON involvement in financial fraud . It also stated that ORG was illegitimate as it had been convened in violation of LAW statute . Moreover , membership of the NORP was not based on observance of the prior 's canonical guidance , contrary to LAW , as Mr PERSON had influenced decisions not to accept new members who were not loyal to him . The Registry added that the change of denomination was contrary to the current statute of the NORP and ORG internal regulations , including the recommended model statutes ( типовий статут парафії ORG православної церкви ) for religious associations within the GPE Patriarchate .", "DATE the NORP members and the Archbishop of the Kyiv Patriarchate lodged a series of formal complaints with a member of parliament ( PERSON ) , ORG , the Minister of the ORG and ORG asking them to take action to prevent the police , who , they said , supported ORG , unlawfully interfering in NORP affairs .", "On DATE ORG refused to register the amendments , according to the request of DATE ( see paragraph CARDINAL above ) , on the grounds that they contravened Article CARDINAL of the NORP statute , in that the documents submitted for registration had not been signed by the prior and the Chairman of ORG .", "On DATE the Parishioners ' Assembly , composed of CARDINAL members , condemned the actions of ORG in relation to their LOC and its property . They decided to file complaints with the law - enforcement authorities to ensure protection from its unlawful interference with their activities .", "On DATE the President of the original Parishioners ' Assembly Mr PERSON complained to the Darnytsky District Prosecutor about the interference in the activities of the NORP . In particular , he alleged that ORG and the police had failed to comply with the resolution of DATE prohibiting access to all the premises of the NORP until the case had been resolved by a court .", "On DATE the prior of the NORP and the Chairman of the original ORG lodged a second request for the registration of changes and amendments to the statute of the NORP with ORG . The ORG again informed ORG that on DATE it had decided that Mr Pavlo Osnovyanenko would be its prior and Mr PERSON its chairman and that both had power under the statute to sign documents on behalf of the NORP . No response was received to this request .", "On DATE ORG established a committee composed of CARDINAL of its members ( deputies of ORG , PERSON , O.P.K. and PERSON ) and the Head of ORG of ORG to examine the conflict over the ORG - Mykhaylivska Parish .", "On DATE the Head of the Darnytsky ORG in GPE warned PERSON that he would be prosecuted if he continued to incite laymen to occupy the church and to confront the supporters of ORG .", "On DATE Mr Makarchykov lodged fresh complaints with the Darnytsky ORG asking them to institute criminal proceedings against unlawful occupiers of the church LOC and those responsible for denying him access to the LOC or to his personal belongings in the church .", "DATE . On DATE the Kyiv Patriarchate certified that the NORP had been within the FAC since DATE .", "On DATE the applicant association instituted proceedings in the ORG claiming that ORG refusal of CARDINAL DATE to register the amendments to the statute of the Svyato - Mykhaylivska Parafiya was unlawful .", "On DATE ORG , composed of CARDINAL judges , rejected the applicant association 's claims , finding that the decision of CARDINAL DATE was lawful ( see paragraph DATE above ) . In particular it found that ORG composed of CARDINAL members did not represent the entire religious community , that the documents submitted for registration had not been signed by the authorised persons ( the prior and the chairman of ORG ) and that the members of ORG DATE no longer belonged to ORG , as this minority group had chosen a different denomination . The court concluded that the applicant association was not able to prove that the decision of ORG was unlawful .", "ORG held in particular :", "“ ... the refusal of ORG to register the amendments to the statute was based on the fact that they had been adopted contrary to the statute and would infringe believers ' rights .", "The judicial division holds that the decision [ of ORG ] corresponds to the actual and reflects the rights of both religious communities , and the statute of the LOC ... and the PERSON ' on consciousness and religious organisations ' .", "... In accordance with ORG CARDINAL of the statute ... decisions with regard to changes and amendments to the statute must be proposed by ORG and adopted by ORG ...", "... As can be seen from TIME of the meeting of ORG of DATE the religious community of the PERSON - Mykhaylivska Parish adopted changes and amendments to the statute of the religious community belonging to ORG [ GPE Patriarchate ] , but was already affiliated to ORG of Kyiv Patriarchate .", "... such a method of making changes and amendments to the statute contravenes the PERSON and Articles CARDINAL.CARDINAL and CARDINAL of the statute and undoubtedly infringes the rights of the religious community belonging to ORG [ GPE Patriarchate ] which adopted this statute . Changes to the statute could only be adopted by ORG of this community .", "It can be seen that the complaint was lodged by PERSON Makarchykov on behalf of the religious group belonging to ORG [ GPE Patriarchate ] . However this church did not authorise him to act on their behalf , in fact he represents the interests of the religious community belonging to ORG of Kyiv Patriarchate , which was established on DATE and has a right to exist in accordance with the PERSON “ on freedom of consciousness and religious organisations ” ...", "Taking into account all of the above , the judicial division considers that the representative of the religious community of ORG of Kyiv Patriarchate , Mr PERSON , failed to prove in court that the refusal of ORG of DATE ... was unlawful . Therefore the complaint must be rejected . ”", "On DATE a panel of ORG composed of CARDINAL judges upheld the judgment of DATE . It rejected the applicant association 's cassation appeal because the provisions of the NORP statute contravened the relevant legislation . It also held that the provisions of the statute concerning fixed membership were contrary to the legislation because they did not allow the majority of the religious group to manifest their religion by participating in the administration of church affairs .", "In particular ORG held :", "“ ... the statute ( articles of association ) of the religious group has to correspond to the legislation in force .", "As long as the legislation in force does not provide for a mandatory or other form of fixed membership of the believers with the same religious beliefs , in a legal sense “ parishioners ' assembly ” and the “ general assembly of the religious group ” are identical notions . The judicial division therefore considers that LAW , CARDINAL of the statute ... do not fully correspond to the legislation . This led to the creation of factual obstacles for a majority of the religious community in deciding statutory issues and a violation of their right to manifest their religion ...", "The judicial division also finds unsubstantiated the submission that there were no defects in the documents concerning the changes and amendments to the statute of the parish filed on behalf of the religious community . ”", "On DATE CARDINAL members of the original ORG lodged a petition with ORG requesting it to initiate supervisory - review proceedings in ORG . No supervisory - review proceedings were initiated , however .", "On DATE the Head of the Darnytsky ORG in GPE informed PERSON , in response to his complaints of CARDINAL DATE , that it had found no evidence of the offences alleged in his complaints . He was also informed that he was free to collect his personal belongings from the church to which he had allegedly been denied access .", "On DATE the prior of the NORP and Chairman of the ORG lodged new complaints with ORG and ORG requesting them to institute criminal proceedings against those involved in the unlawful seizure of the LOC 's premises and property . They also complained of the refusal of ORG to register the changes to the statute of the LOC on the basis of the joint decision of its members to change denomination .", "On DATE ORG asked PERSON to provide it with TIME that had elected PERSON Pavlo Osnovyanenko as its prior , confirmation that the LOC 's prior belonged to ORG and confirmation that the prior 's position had been vacant from DATE to DATE .", "On DATE Mr T. , Archbishop of the Kyiv Patriarchate , wrote to the head of the district electricity network asking it to cut off the electricity supply to the church as it had been unlawfully occupied by ORG and ORG was unable to gain access .", "On DATE ORG informed Mr PERSON and Mr Osnovyanenko that it had not found any wrongdoing on the part of ORG in relation to the church prosecutor 's inquiries had revealed no unlawfulness whatsoever as alleged by the applicant .", "On DATE a Committee of ORG prepared a draft opinion on the situation surrounding the LOC . The opinion was not adopted for examination by ORG as it was signed by CARDINAL of the CARDINAL members of ORG .", "On DATE the Parishioners ' Assembly composed of CARDINAL members , CARDINAL of whom were present , decided that Mr S.G. could not remain a member as he had joined a new religious group . ORG discussed the judgment in which ORG had found that ORG contained CARDINAL members . However , it reiterated its view that as from DATE it had been composed of CARDINAL members . CARDINAL of the members of the Assembly ( K.V. and ORG ) reported that their witness statements had been taken incorrectly . The ORG also re - elected the NORP 's governing bodies ( Mr PERSON was re - elected as Chairman ) .", "On DATE Mr PERSON lodged a complaint with the Darnytsky District Prosecutor alleging that he had been attacked and injured on DATE by an unknown person who had stolen a briefcase containing official documents belonging to the NORP . He also stated that he had already complained about attacks on him to the police , but that they had failed to act ( the police issued CARDINAL decisions on DATE and CARDINAL DATE refusing to initiate criminal proceedings following allegations by the applicant association ) .", "On DATE the Parishioners ' Assembly resolved that a car owned by the NORP should be used for the repayment of the LOC 's debts .", "On DATE Mr PERSON was arrested by police officers from the Darnytsky District Department of the Interior and “ invited for a conversation ” at the Department . He was informed that an inquiry was pending in relation to him . In the course of the “ conversation ” it is alleged that Mr PERSON started to curse and swear at the police officers . He was warned that he could be reprimanded , but did not stop . On DATE the judge of the Darnytsky ORG of GPE reprimanded PERSON PERSON for his behaviour ; however , he did not impose any administrative or criminal sanctions on him .", "On DATE the Darnytsky ORG of the ORG discontinued criminal proceedings against the applicant association that had been instituted on the basis of a complaint lodged by PERSON the newly appointed prior of the Svyato - Mykhaylivska Parish ( GPE Patriarchate ) , as it had found no evidence of an offence on Mr PERSON 's part .", "On DATE the Darnytsky ORG refused to institute criminal proceedings into allegations of abuse of power by the police .", "On DATE Mr PERSON requested ORG to register further amendments to the statute of the LOC . A request was signed by CARDINAL members of ORG , CARDINAL of whom ( PERSON ) was a member of the original ORG .", "On DATE the Parishioners ' Assembly , composed of CARDINAL members , of whom CARDINAL were present , condemned the ruling of ORG of DATE and decided that the NORP would apply to ORG for the protection of their rights . The ORG gave authority to Mr Makarchykov to represent it in the proceedings before ORG . It also discussed pressure that had been imposed on Ts . O. , PERSON , Mr PERSON and FAC by the domestic law - enforcement authorities and private individuals .", "DATE . On DATE the Deputy Minister of the ORG and the Head of ORG of the ORG reviewed Mr PERSON 's complaints and found them unsubstantiated . They further stated that criminal proceedings against Mr PERSON on allegations of theft of property from the church had been discontinued and that the investigator in the case had incurred administrative liability . Similar , complaints were rejected by ORG on DATE .", "On DATE ORG decided to register the changes to the statute of the Svyato - Mykhaylivska Parish pursuant to PERSON request of CARDINAL DATE .", "On DATE CARDINAL members of ORG held a meeting at which they discussed various pressures that had been exerted on them by the law - enforcement authorities . They decided to seek protection and assistance from ORG of GPE and ORG to resolve the dispute surrounding the LOC . They also accepted a request from PERSON . PERSON , who had been a member of ORG since DATE , to resign her membership owing to pressure that had been put on her brother , a priest of ORG .", "On DATE the PERSON ( the successor to the Darnytsky ) ORG reviewed complaints lodged by Mr PERSON 's sister of attacks on her and her son and her allegedly unlawful dismissal from the NORP . It advised her to take her complaint of unlawful dismissal to the domestic courts .", "In DATE Mr PERSON 's sister requested asylum in GPE on the grounds of alleged persecution in GPE . She stayed in GPE while her request for political asylum was being reviewed .", "The Government informed the ORG that on DATE and DATE the prior of the LOC , PERSON , informed them that Mr PERSON had never been given authority to apply to ORG on behalf of the NORP , as he had ceased acting as the Chairman of ORG on DATE . PERSON also informed the Government that CARDINAL of the original members ( GPE , GPE , PERSON . O. , ORG , Ya . V and ORG ) had decided to remain members . CARDINAL of these ( PERSON . O , ORG and Ya . PERSON ) had withdrawn their signatures from TIME no . CARDINAL of DATE , by which ORG had resolved to change its denomination to ORG .", "On DATE ORG of ORG informed the applicant association 's representative that their religious group had separated from the remainder of the LOC and become a religious group within ORG . It noted that they had not registered as a group with ORG .", "On DATE the Kyiv Patriarchate informed the ORG that the NORP , consisting of CARDINAL members , was unable to satisfy their religious needs , as they were unable to use their property or LOC . It stated that this was due to the refusal of ORG to register the changes and amendments to the statute of the LOC that had been made in DATE .", "DATE . In a letter of DATE , PERSON , PERSON . PERSON . , GPE , PERSON . PERSON , ORG , ORG , GPE , GPE , DATE , PERSON . A. , PERSON . GPE , GPE , GPE . GPE , GPE , FAC and PERSON , all confirmed the complaints made by PERSON to ORG and stated that they were unable to use the church LOC or to practise their religion in the church , which they had previously used for DATE as a religious association .", "On DATE Mr Makarchykov and PERSON ( a member of the applicant association ) instituted proceedings against the PERSON - GPE ( GPE Patriarchate ) seeking the return of their personal property that had allegedly been confiscated by ORG in DATE . They also sought compensation for damage .", "On DATE the FAC of GPE rejected PERSON and ORG 's claims as unsubstantiated .", "It appears from the documents in the case - file that this judgment was upheld by ORG on DATE ( the parties have not provided a copy of the ruling ) . It also appears from the case - file that this ruling was not appealed against .", "NORP In DATE PERSON instituted proceedings against the Darnytsky District Department of the Interior for the return of the car that had been transferred into his ownership for the repayment of LOC 's debts before being unlawfully seized by the police . The outcome of these proceedings is unknown .", "NORP The applicant association also provided the ORG with a number of documents confirming that PERSON had acted on behalf of ORG from DATE representing its interests in dealings with third parties .", "The relevant provisions of LAW read as follows :", "“ Everyone has the right to freedom of personal philosophy and religion . This right includes the freedom to profess or not to profess any religion , to perform alone or collectively and without constraint religious rites and ceremonial rituals , and to conduct religious activities .", "The exercise of this right may be restricted by law only in the interests of protecting public order , the health and morals of the population , or the rights and freedoms of others .", "The ORG and religious organisations in GPE are separated from the ORG , and the school from the ORG . No religion shall be recognised by the ORG as mandatory . ”", "The relevant provisions of the LAW read as follows :", "“ Religious organisations in GPE shall be created to meet citizens ' religious needs to manifest and disseminate their faith , and shall operate in accordance with their hierarchical and institutional structure , electing , appointing and changing their personnel in accordance with the provisions of their statutory documents ...", "Religious organisations in GPE are religious groups , departments and centres , monasteries , religious brotherhoods , missionary societies ( missions ) , religious educational institutions , and also unions composed of such bodies . Religious unions shall be represented by their centres ( departments ) .", "No other organisation established on the basis of religion shall be covered by LAW . ”", "“ A religious group ( релігійна громада ) is a local religious organisation of believers belonging to a sect , religious manifestation , persuasion , trend or devotion , who voluntarily unite for the purposes of the common satisfaction of religious needs .", "The right of the religious group to belong to any church acting within GPE and outside its territorial religious centres ( departments ) for canonical or organisational purposes , and voluntarily to change their affiliation to a particular denomination shall be recognised by the ORG .", "There is no mandatory obligation to inform the ORG authorities of the creation of a religious group . ”", "Under LAW of the LAW , the statutes of a religious organisation determine its legal capacity . They are adopted at a “ general assembly ” of the believers or during religious assemblies or conferences . The statute must contain information , inter alia , on the type of religious organisation , its religion , current address , place in the structure of the religious union , property status , the rights of the organisation to establish enterprises , mass media sources , other religious organisations or educational institutions , the procedure for making changes or amendments to the statute , and the procedure for deciding property and other issues on the termination of the religious organisation 's activities . The statute must not contravene the law .", "In accordance with LAW a religious organisation becomes a legal entity from the moment its statute is registered by the relevant body .", "Under section DATE , a religious organisation wishing to become a legal entity must lodge a request for registration on behalf of a minimum of CARDINAL natural persons and the statute of the organisation with the regional , city or ORG , and in GPE with the Government of the LOC . These documents have to be examined within DATE and the relevant body is required to notify the religious organisation of its decision . Changes and amendments to the statute of a religious organisation must be registered in accordance with the same procedure and within the same time - limits . Representatives of the religious organisation attend the meeting of the board which examines the request for registration .", "In accordance with LAW , registration can be refused if the statute of the organisation or its activities contravene the law . A reasoned decision refusing registration must be notified to the organisation within DATE .", "Under LAW of the LAW the activities of the religious organisation must cease on its reorganisation ( division , merger , consolidation ) or liquidation . New organisations are registered in accordance with section CARDINAL .", "Religious organisations have the right to use property , land , buildings and LOC owned by the ORG , non - governmental organisations or citizens ( section CARDINAL ) . Under section CARDINAL these organisations have a right to own , use and dispose of their property . These rights are protected by law ( section CARDINAL ) . Under section CARDINAL religious organisations have the right to create , in accordance with the provisions of their statutes , publishing , commercial , agricultural and other enterprises and charitable institutions have the rights of a legal person .", "Religious organisations also have the right to create and maintain places for religious services and ceremonies ( section DATE ) , to acquire religious literature and objects ( section CARDINAL ) , to conduct charitable and other cultural activities ( section CARDINAL ) and to maintain international contacts with foreign religious organisation and believers ( section CARDINAL ) .", "The relevant provisions of the rules regulating the activities of religious organisations are as follows .", "Under LAW of DATE only registered religious organisations have the right to receive humanitarian aid .", "Sections CARDINAL and CARDINAL of LAW of DATE specify that religious organisations have no right to publish and disseminate publications without being registered with the specialised ORG register of publishing organisations .", "Under LAW of DATE only registered organisations or legal entities may engage in commercial activities or have capacity to trade .", "Under the provisions of LAW of DATE and LAW of DATE religious organisations have the right to use land and water resources for their needs .", "In accordance with recommendation no . CARDINAL of ORG of GPE of DATE every religious organisation owns its own property and in the event of a transfer from CARDINAL denomination to another , property and financial matters must be resolved on the basis of the statute of each organisation separately and in accordance with the applicable law .", "On DATE ORG refused to institute constitutional proceedings following a request lodged by CARDINAL NORP Members of ORG for an interpretation of the notion of “ church ” which is contained in LAW . In its ruling , ORG recognised the existence of misinterpretations in the legislation of GPE regarding the definition of the notions of “ church ” and “ religious organisation ” . In some instances , these notions were treated as having analogous meanings while in others they were given different meanings .", "The relevant extracts from Opinion No . CARDINAL ( DATE ) on the application by GPE for membership of ORG read as follows :", "“ ... CARDINAL . Accordingly , in the light of assurances given by the highest authorities of the state ( letter of DATE from the President of GPE , the President of the ORG and the Prime Minister ) , and on the basis of the following considerations , the ORG believes that GPE is able and willing , in the sense of LAW , to fulfil the provisions for membership of ORG as set forth in LAW Every member of ORG must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms , and collaborate sincerely and effectively in the realisation of the aim of the ORG ... ' :", "... xi . a peaceful solution to the disputes existing among the NORP churches will be facilitated while respecting the ORG 's independence vis - à - vis the state ; a new non - discriminatory system of church registration and a legal solution for the restitution of church property will be introduced ; ... ”", "The relevant extracts from the Report of ORG monitoring committee ' Honouring of obligations and commitments by GPE ' ( doc . DATE , DATE ) read as follows :", "“ ... F. Freedom of conscience and religion", "GPE undertook to introduce a new non - discriminatory system of church registration and to find a legal solution for the restitution of church property . The present PERSON on freedom of conscience and religious organisations dates back to DATE . Despite the fact that it is regarded as CARDINAL of the best freedom of religion laws in the region , some of its provisions lack clarity . The PERSON limits the forms in which a religious organisation can be created , limits the minimum number of founders to have the statute of the organisation registered to CARDINAL adults ( whereas the same requirement for other civic associations is QUANTITY persons ) , bans creation of local or regional divisions without legal entity status , provides no possibility for granting legal entity status to religious associations , discriminates foreigners and stateless persons . There is a lack of clarity with regard to which organisations are registered by regional state administrations and which by ORG . The law also contains a number of other ambiguous provisions , which leave a wide discretion to the implementing authorities . Hence , the quite progressive law for the time of its adoption now requires significant rewording . At the same time , the current principle of registration of religious organisation statutes in order to obtain the legal entity status and the absence of a requirement for registration of religious organisations as such should be maintained in line with the ORG 's Recommendation CARDINAL ( DATE ) .", "NORP The NORP legislation still lacks effective legal tools for restitution of church property . So far restitution was carried out occasionally on the basis of the parliament 's DATE resolution and several presidential decrees . The legal problem of restitution mainly stems from the fact that religious associations have no right to obtain a legal entity status and thus can not possess property . Most of the organisations , which owned the property that should be restituted , ceased to exist and ORG is represented by several organisations . This leads to an ad hoc restitution practice totally depending on the local authorities ' preferences and which in most cases entails not the return of the ownership rights but transfer of property into a gratis rent . We , therefore , call on the NORP authorities to elaborate clear rules on the restitution of religious property . ”", "The Report of the monitoring committee of ORG on ' Honouring of obligations and commitments by GPE ' ( Doc . CARDINAL of DATE ) read as follows :", "“ C. Freedom of conscience and of worship", "One of GPE 's commitments , listed in paragraph CARDINAL , xi . of Opinion No . CARDINAL , is to facilitate ' peaceful solution to the disputes existing among the NORP churches [ ... ] while respecting the ORG 's independence vis - à - vis the ORG ; a new non - discriminatory system of church registration and a legal solution for the restitution of church property should be introduced . '", "Following accession , the dispute within the CARDINAL NORP churches in GPE , amongst themselves and with the ORG , has not ended .", "Complaints are also expressed by the representatives of various confessions regarding the lack of cooperation by the authorities at local level and the system of taxation . ... There is no sufficiently good coordination between state and local authorities in this respect .", "The relevant extracts from Recommendation no . DATE ) ' Religion and change in central and eastern LOC ' read as follows :", "“ ... Legal guarantees and their observance", "i. to promote conformity of national legislation with LAW , paying special attention to LAW , which states that religious freedoms shall be subject only to limitations prescribed by law and necessary in a democratic society , and to the ruling of ORG ( DATE ) that restrictions on human rights must be motivated by a ' pressing social need ' , and be ' proportionate to the legitimate aim pursued ' ;", "ii . to guarantee all churches , religious associations , centres and communities the status of legal entities , if their activity does not violate human rights or international law ... ;", "vi . to offer to mediate between conflicting parties , in cases where the latter accept this , for the purpose of settling disputes , while taking care to ensure that government bodies do not interfere in dogma or other internal religious matters ; ... ”", "The relevant extracts from the DATE joint report of ORG on GPE reads as follows :", "“ ... CARDINAL . NORP The procedure for registration", "Courts often do not recognize obstacles placed by executive bodies before the registration of religious organizations as being a violation of the right to freedom of religion and worship .", "... In GPE the importance of gaining certain legal status is increased since only in this way can religious formations receive buildings for worship , print and disseminate literature , invite representatives of foreign organizations , organize public actions and receive charitable status , as well as carry out charitable activity . All of this is practically impossible in GPE without the registration of a religious formation , with legal entity status .", "... Positive points are the voluntary nature of registration of religious organizations and the possibility for communities to exist without registering themselves . However the status of such unregistered communities and their rights are not defined by the law . Following the positivist logic which prevails in ORG and in other executive bodies , such organizations do not have any rights at all , since they are not set out in law . This applies , for example , to the right of worship in public places , invitations to foreign priests , the right to alternative military service of those who belong to such communities , and many others .", "According to the law , religious organizations register their charter ( regulations ) , however they submit far more documents and all of these are checked in accordance with ORG CARDINAL and CARDINAL of the PERSON on religious organizations . That is , in effect , registration is carried out not of the charter , but of the organization itself .", "In practice , documents are not checked for their compliance with legislation , but rather the actual religion is assessed . ...", "... The procedure for registering a primary religious organization consists of submitting registration documents together with an application signed by not CARDINAL NORP citizens . This application should be considered within DATE , or in exceptional cases , DATE . In practice the application is considered , on average , within DATE , and where a special opinion is needed , and as a precautionary measure , this is deemed necessary in the majority of cases , registration can drag on for DATE . This violation of the law is established administrative practice which has no reasonable justification . ...", "No clear grounds are set out in legislation for turning down an application to register a religious organization , and such grounds are substituted by the general phrase : ' the charter of the organization contravenes legislation ' ...", "Legislation does not permit the registration of religious organizations with canonical subordination to a spiritual leader ( charismatic organizations ) , since canonical or economic subordination are permitted only to a religious centre ( an organization which unites several religious communities ) , which is already registered . In this way , it is impossible to create religious organizations which belong to new religions and which do not have religious centres . It is similarly impossible to create new churches , since these are understood to be already hierarchical structural unions .", "During registration , the ORG bodies return the documents submitted with their comments and their suggestions as far as the charter is concerned , although this is nowhere allowed for by legislation . The ORG bodies ' comments frequently relate to aspects of religious practice and limit the rights of the individual .", "There is a general suggestion to move the focus of regulation from the process of registration to monitoring of the activities of religious organizations . ... ”", "The relevant extracts from the DATE ORG Report on GPE read as follows :", "“ ... CARDINAL . NORP The procedure for registration of religious organisations", "In GPE one needs to have a status of a ' legal entity ' in order to engage in virtually any formal religious activities , at least for those involving worship in a building , holding public services or inviting representatives of foreign religious figures , printing or otherwise disseminating literature , etc .", "Unregistered communities encounter problems with organizing religious events , inviting religious figures from abroad , arranging alternative ( non - military ) service , etc . Clearly such restrictions are a violation of religious freedom since the right to organize religious services , study and teach religion , publicize ones own beliefs and other activities have a direct impact on the human right to freedom of religion and should not be contingent upon the legal status of an organization .", "... The law lacks any clear definition of the legal status of the activities of unregistered religious groups , as a result of which there are sometimes cases of abuse of this status . For example , we are aware of cases where unregistered religious communities rent LOC for religious activities from state or educational institutions which in GPE is prohibited by law .", "Although according to the law religious organizations have to register their charter , in practice they are required to provide many other documents as well . That means that essentially it is not the charter which is registered , but the organization itself . It is important to note that the establishment by the legislators of an exhaustive list of forms of religious organizations : a religious congregation , departments and centres , monasteries , religious brotherhoods , missionary societies ( missions ) , seminaries and associations made up of the said religious organizations are a clear violation of the right of individuals to determine the form of their own religious association , as well as of the right to autonomy of the religious group itself , an element of which being able to decide independently on the structure and its form of management .", "As regards the time required for registration DATE in accordance with LAW On freedom of conscience and religious organizations ' , this constitutes DATE , including all necessary consultations . However , in practice , the process can drag on for DATE or more . ...", "... for multi - religious GPE ... this is not a simple issue . Legal entity status for a religious association or the ORG as an institution would , in the first instance , give property rights to , for example , the churches which are presently in the possession of individual religious organizations ( under the law 's classification communities , monasteries , etc ) . Theoretically they belong to CARDINAL of the faiths , yet the tendency to change , for various reasons , jurisdiction complicates any clear distribution . Current legislation guarantees the right of a particular religious entity in the event that confessional jurisdiction for whatever reason changes to retain the property which that organization acquired . In other words , for the legislators the parish of the ORG can in DATE become the parish of the ORG MP together with its church and property , or vice versa . With the issue remaining unresolved of former property of religious organizations , expropriated under the NORP regime which is now in the possession of another order , is used by several religious organizations , or which belonged to CARDINAL organization and has now been transferred to another – the forcing of the granting of legal entity status to religious associations could heighten old conflict .", "At the same time , such a method of regulation violates the structural integrity of a particular religious association , if not de jure , then de facto , and demands if not amendments , then review . Ideally , the state should ensure both possibilities DATE for the existence of separate religious groups which do not form part of any association , and the right of a religious association with clear hierarchical and other structure .", "On DATE ORG reversed the resolution of the former Governor of the GPE region , PERSON , on cancelling amendments made to the charter of the PERSON - Pokrovsk Parish of the town of PERSON , according to which the parish had transferred to the jurisdiction of ORG . ORG thus declared as lawful the transfer of the parish from the ORG MP to the jurisdiction of the ORG abroad . The parish also retained their church over which there had been conflict with the other members of the parish who did not wish to change their confessional affiliation . ”" ]

[ "9" ]

[]

[]

[]

[]

[]

[ "The applicant , Ms Selal Saraç , is a NORP national who was born in DATE and lives in GPE . She is represented before the Court by Mr M. PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , are as follows .", "On DATE at TIME the applicant ’s house in PERSON was raided by police officers from the PERSON police headquarters in order to arrest the applicant on suspicion of ORG membership and harbouring ORG members . The applicant had been taken into custody several times in the past , namely in DATE , on DATE and on CARDINAL DATE . During the arrest she was subjected to a body search in the presence of her children , husband and other family members . The applicant , her husband and CARDINAL of her relatives were put in a police vehicle and taken to a doctor for a medical examination . The doctor stated that they were in good health and they were subsequently taken to the police headquarters in GPE .", "At TIME the same day the applicant was taken to her house by police officers in order to conduct a search . She took the police officers to the cellar of the house and showed them a bomb which had been given to her by a member of the ORG . The bomb was subsequently destroyed by bomb disposal teams . She was then taken back to the LOC police headquarters .", "During her period of detention at LOC police headquarters , the applicant was stripped naked and blindfolded . She was hosed down with cold water , hung from her arms , beaten with a police truncheon and electric shocks were administrated to her sexual organs .", "DATE after her arrest , the applicant was transferred to LOC police headquarters . During her detention at GPE police headquarters , the applicant was allegedly blindfolded , stripped naked , held under cold water , given electric shocks , beaten , and raped by a village guard and a police commissioner . She was also forced to walk in a room filled with ice .", "While in GPE , the applicant was taken to a doctor at ORG who did not medically examine her but gave her painkillers to relieve her pain . She was then brought back to the PERSON police headquarters where she was detained for DATE during which time she was stripped naked and was interrogated TIME", "On DATE a statement was taken from the applicant by police officers while she was still in custody . In her statement , the applicant admitted that she had let the ORG members use her cellar as a shelter , and maintained that the bomb which was found there had been put there by another woman .", "On DATE the applicant was brought before the public prosecutor . In her statement , she denied her police statement alleging that it had been taken under duress . She maintained that ORG terrorists had never stayed in her cellar and that the cellar had been designed as a shelter during the Gulf War to protect her family from any possible chemical attack by GPE . As to the bomb found in the cellar , the applicant stated that it had been given to her by a woman whom she did not know and that she had not been aware that it was a bomb . The same day , the applicant was placed in detention on remand .", "On DATE the prosecutor at ORG filed an indictment against the applicant together with CARDINAL other accused persons . She was accused of aiding and abetting members of an illegal organisation , an offence defined in LAW . On DATE she was released pending trial .", "On DATE , DATE after her release , the applicant ’s house was raided by police officers from the LOC police headquarters and the applicant was taken into custody . She was hung from her arms and hit repeatedly on the head with truncheons as a result of which she lost consciousness . While she was unconscious , her feet were burnt by cigarettes . Following this , she was raped with a truncheon on two occasions . She was threatened by the police officers that if she refused to work as an informer for the police , she would be killed . The applicant refused to work as an informer . She was then taken by car to an isolated place and abandoned .", "On DATE the applicant went to ORG where she was medically examined . Following medical examinations carried out DATE in CARDINAL different hospitals and a Nuclear Medical Centre in GPE , and gynaecological and neurological tests , x - rays , thorax graphics , scintigraphic imaging and examinations by an ear , nose and throat consultant as well as a psychiatrist , the doctors drafted a report dated DATE . It was concluded that the applicant ’s allegations of ill - treatment , such as post - traumatic stress , depression , marks on her feet caused by cigarette burns and a pelvic complaint , were compatible with the medical findings .", "On DATE the applicant ’s CARDINAL legal representatives filed a complaint with the GPE public prosecutor . In their petition they submitted the applicant ’s allegations of ill - treatment . They also gave the names of the village guard who had allegedly raped her during her police custody .", "On DATE ORG found the applicant guilty of aiding and abetting members of an illegal organisation and sentenced her to DATE and QUANTITY months’ imprisonment . The applicant ’s appeal against the judgment was rejected by ORG on DATE .", "The Government submitted that the applicant was taken into custody on CARDINAL occasions from DATE to DATE and from DATE to CARDINAL DATE respectively , on suspicion that she was aiding and abetting members of the ORG . However the Government denied that the applicant had been arrested on DATE . In this respect they submitted that the custody records did not mention her name .", "Concerning the applicant ’s police custody from DATE until DATE , the ORG maintained that she was held in ORG from DATE and then she was transferred to ORG , where she was held until DATE . She was subsequently transferred back to ORG , where she was held until DATE . The Government further contended that the applicant was taken for a medical examination on DATE and , according to the medical report , there was no sign of injury on her body . It was noted that she had a heart condition . Another medical report was issued on DATE by ORG , which concluded that the applicant had not suffered physical abuse .", "The Government further maintained that the applicant had lodged a criminal complaint with the GPE public prosecutor on DATE . On DATE the public prosecutor requested that the ORG submit information about the applicant ’s alleged police custody , and that all relevant doctor reports and official documents be conveyed to the public prosecutor ’s office . Furthermore , on DATE the public prosecutor took a statement from ORG , a village guard , who was accused by the applicant of having raped her . PERSON denied the charges against him . On DATE , the applicant ’s lawyer gave a statement to the public prosecutor , and asserted that she would convey the relevant medical reports and other evidence in the shortest possible time . Despite being notified , the applicant refused to come to the public prosecutor ’s office to give a statement . Moreover , the documents promised by the applicant ’s representative were never conveyed to the public prosecutor . Accordingly , on DATE the public prosecutor delivered a decision of non - jurisdiction on account of insufficient evidence . The applicant did not appeal against this decision .", "The Government further submitted that on DATE a search was conducted in the applicant ’s house , as a result of which a shelter and a bomb were found . On DATE the applicant gave a statement to the police , and described in detail her involvement with the ORG . On CARDINAL DATE the applicant was taken before the public prosecutor , and subsequently before the ORG in Criminal Matters . She was remanded in custody . With an indictment dated DATE the ORG public prosecutor instigated criminal proceedings against the applicant and accused her of aiding and abetting an illegal organisation under LAW . On DATE the applicant was released pending trial . On DATE the first instance - court found the applicant guilty as charged and sentenced her to DATE and QUANTITY months’ imprisonment . On DATE , ORG rejected the applicant ’s request for appeal , finding the first - instance court ’s establishment of the facts and evaluation of evidence in line with domestic law and general principles of law .", "A description of the domestic law may be found in the Nuray Şen v. GPE decision ( no . PERSON , DATE ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in the village of ORG , the Vinnitsa region of GPE .", "In DATE the applicant instituted proceedings in the ORG of Vinnitsa against her former employer – the “ PERSON ” Open Joint Stock Company – to be reinstated in her position and to receive compensation .", "On DATE the court discontinued proceedings in the applicant ’s case on the ground that she had failed to appear before the court .", "On DATE ORG upheld the ruling of DATE . On DATE the applicant appealed in cassation .", "On DATE the ORG rejected the applicant ’s request for a cassation appeal as having been submitted too late . The court stated that , under the new wording of LAW ( hereinafter - “ the ORG ” ) , which had entered into force on DATE , the time - limit for lodging an appeal in cassation was DATE , and that the applicant had exceeded that time - limit by only lodging her appeal on DATE . No reference was made in the decision to the actual deadline which had not been complied with .", "On DATE ORG upheld the ruling of CARDINAL DATE .", "On DATE the panel of CARDINAL judges of ORG rejected the applicant ’s request for leave to appeal in cassation against the rulings of DATE and DATE .", "The first paragraph of LAW provides that laws and other normative legal acts have no retroactive force , except in cases where they mitigate or annul the responsibility of a person .", "At the time of the second instance appellate decision , the first paragraph of LAW ORG provided that a cassation appeal should be lodged within DATE of the appellate decision or within DATE of the decision of the first instance court , if the latter decision was not appealed under the normal appellate procedure .", "On DATE ORG passed a law amending the ORG ( hereinafter DATE “ LAW ) , including the LAW in question . It came into force on DATE . The new wording of Article CARDINAL created a DATE time - limit for lodging a cassation application against the decision of an appellate court ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicants were born in DATE and DATE respectively and live in the village of GPE in LOC of LOC .", "The applicants have been married since DATE .", "In DATE their DATE son NORP , who suffered from widespread vasculitis , died . Some time later the couple decided to adopt CARDINAL children .", "On DATE the Nagatinskiy ORG of GPE approved the applicants’ full adoption of CARDINAL unrelated children , a boy , PERSON ( first name ) , born on DATE , and a girl , NORP ( first name ) , born on DATE .", "Following the adoption , the children became brother and sister and their first names were changed from A. to PERSON and from NORP to P. respectively . Their surnames and patronymics were also changed to reflect the surname of their adoptive parents and the first name of their adoptive father .", "Both children had been removed from their respective birth GPE care in their infancy . The boy was aged DATE and DATE at the time of the removal , whilst the girl was aged DATE . Prior to adoption , both children had lived in various foster homes and displayed slight developmental delays . PERSON was recorded as being developmentally delayed in speech and motor skills and to have suffered neglect . It appears that PERSON had problems walking and often fell . As a result , he had CARDINAL front teeth missing . At the time of her removal , PERSON was recorded as having minor heart anomalies and delays in her mental and verbal skills .", "After the adoption the children lived with the applicants as a family in a detached QUANTITY house in the village of GPE in LOC of LOC .", "NORP The children ’s placement was assessed prior to the adoption and LOC ( “ LOC ” ) made CARDINAL post - adoption visits to their home , in DATE .", "On DATE official PERSON ORG visited the applicants’ house and issued a report describing the family ’s living conditions . The report stated , in particular , that the house was “ kept in order , the rooms had furniture , had been recently renovated , all rooms being decorated with wood , the floor having been covered with laminated wood and soft carpets ” . The report mentioned that the family was well - off financially and that the children had a room measuring QUANTITY containing two beds , a wardrobe and many toys . The report did not mention any problems , and concluded that the living conditions were in compliance with the relevant requirements and that relations within the family were “ normal ” .", "NORP The report was approved by the head of ORG , PERSON", "On DATE official E. of ORG again visited the house and issued a report on the living conditions . The report concluded : “ it was excellent that the children ’s living conditions and their relations with the family were normal and that normal conditions had been created for bringing up the children ” .", "Following this visit , official PERSON also issued a separate report stating as follows :", "“ ... it is a good family , in which CARDINAL children are being brought up . They have grown and developed a sun - tan over DATE . They have spent time with their parents in the south . The children are very cheerful and lively . The speech of P. has become more articulate , whilst PERSON ’s has become good , with much thorough composition and expression of thoughts . The boy is very active ; his hyperactivity is a concern to the parents , they are going to take the boy to a neurologist at a medical centre for children . P. has become calm and affectionate . The children like to listen to and look at the books read aloud to them by their parents ... ”", "“ ... [ the applicants ] create all the necessary conditions for the children . PERSON and PERSON are being correctly fed a varied diet , including many vegetables and fruit . PERSON loves meat , whilst PERSON loves dairy products ... ”", "“ The children are attached to [ their parents ] . The family lives in a cottage situated in a suburban area , in which the children have a room measuring QUANTITY with CARDINAL beds , a wardrobe and a table . All furniture is suitable for their size and age . The children continue to be fashionably and well dressed . There are even more board games stimulating development . [ The second applicant ] accompanies the children to the educational centre for children in GPE . The centre gives its classes CARDINAL times a week . The parents are very happy because the knowledge and skills acquired during these classes have produced demonstrable results for P. and PERSON", "The report went on to conclude that :", "“ ... the living conditions for the children in the family as well as the relations between the parents and children are good . The children communicate happily with their parents . The parents love their children and take care of them . ”", "In TIME DATE , at TIME , all the family was at home and the children were playing in the house .", "The second applicant saw PERSON lying near the stairs . PERSON was bleeding and had burns on his face . She called the first applicant and they immediately tried to give PERSON first aid , treating the wounds with hydrogen dioxide and applying plasters on the wounds . PERSON was put to bed .", "The applicants submitted that they had not seen how the incident had occurred , but they suspected that because of a momentary lack of supervision PERSON might have scalded himself with hot water from an electric kettle on the second floor and then run downstairs , falling on the stairs .", "At TIME the applicants examined PERSON and saw that the left side of their son ’s face was red , the plasters had come unstuck and the wounds on his chin and eyebrow had started bleeding again . The applicants decided that it was necessary to have him checked by a doctor .", "At TIME the first applicant took PERSON to ORG Hospital No . CARDINAL of GPE . Since the ORG was not open , he took the boy to ORG of PERSON Hospital No . CARDINAL of ORG of GPE ( “ the Burn Care Hospital ” ) .", "From that date until DATE PERSON remained in the hospital for treatment .", "The admission entry of CARDINAL DATE in PERSON ’s medical file no . CARDINAL from ORG described PERSON ’s condition as “ serious ” . He was diagnosed by the surgeon on duty as follows :", "“ ... closed crano - cerebral trauma , brain concussion ? A burn caused by hot liquid , III - IIIA degree , to the face covering PERCENT of the body ’s surface . Bruises to the head . Multiple scratches , bruises , haematomas on the body , limbs and sexual organs of various degrees of maturity . Battered child syndrome ? ”", "A combined report by the surgeon in charge and the resuscitation specialist made DATE confirmed the above conclusions , with a reduction of the estimated surface of the burn to PERCENT .", "In TIME DATE official PERSON ORG , along with her colleague PERSON . , again visited the applicants’ house . The resulting report stated that the next visit had been planned for DATE but that because of the incident of DATE , of which the ORG had learnt from the police on DATE , it had been decided to visit the applicants immediately . The report stated in respect of the incident :", "“ ... PERSON was in hospital , since , according to the parents , on DATE he had spilled boiling water from a kettle on himself and , panicking , tripped and fallen down the stairs . The boy had been brought by [ the first applicant ] to [ the hospital ] . [ The second applicant ] was in a state of shock during the visit , could hardly speak and was constantly crying . The minor child PERSON was all the time nearby and did not leave her mother even for a second . ”", "NORP The report further stated that the family would be visited and checked frequently and that the information about the incident was to be transferred to the municipal authority responsible for the adoption .", "On DATE , at the ORG request , PERSON was discharged from ORG and returned home .", "On DATE the Head of FAC ( “ the GPE ” ) issued removal orders in respect of PERSON and PERSON because of an “ immediate threat to their health and life ” .", "It appears that later on DATE officials PERSON visited the applicants’ house . The resulting report stated that because of the incident of CARDINAL DATE and the institution of criminal proceedings in that connection , as well as because of the media coverage of the case , it had been decided to visit the applicants’ family and to consider the question of removing the children pending the investigation . The report then went on as follows :", "“ ... From the interviews with the children it was established that the parents loved them ; the children looked well groomed and clean . During the visit the children were playing and looked happy ; they then watched a fairy tale , held and kissed their mother affectionately ...", "Given that there was no immediate threat to the life and health of the children , the children were sleeping and the family would remain under the close supervision of the [ ORG ] , and regard being had to the pending investigation , we consider it unnecessary to remove the children and that consideration of the question should be suspended until the conclusion of the criminal case . ”", "It appears that based on the findings of the above report the Head of ORG withdrew the removal orders on DATE .", "In a letter of the same date the Deputy Head of ORG of the ORG in LOC , PERSON , referred the Head of ORG to the incident of DATE and then stated :", "“ With a view to avoiding any pressure from the parents on PERSON and the infliction of any physical or mental harm on him , I would ask you to consider the possibility of removing PERSON from the conditions representing a threat to his life and health pending the resolution of [ these criminal proceedings ] . ”", "Furthermore , on DATE other officials of ORG , PERSON and PERSON compiled the following report :", "“ ... as a result of examining the housing and living conditions of the family of [ the applicants ] , the visits of the officials of the [ agency ] during the period from DATE to CARDINAL DATE , and reviewing the video materials presented by the family showing episodes from the life of the parents and children , and the continuous interviews with [ the applicants ] , the following has been established :", "At present , despite repeated recommendations by the officials of the agency , the stairs connecting the first and second floors have still not been made secure ( according to [ the applicants ] it was precisely these stairs that caused serious injuries to PERSON , who fell down them ) . The previous security mechanism had been taken down before the New Year period .", "The injuries received by the minor child PERSON on DATE were not without precedent . Serious falls of the child occurred previously as well , as can be seen from the video materials in the family archive , as well as being confirmed by the parents .", "Given the above , as well as the institution of criminal proceedings ... together with the fact of the infliction of the injuries in question , we consider that the parents do not fulfil the security requirements for the life and health of minors and do not keep a close enough watch over the children , who are prone to trauma because of their high levels of activity and mobility .", "Thus there are reasons to remove [ the children ] from their parents . ”", "Late in TIME CARDINAL DATE official F. of ORG accordingly issued removal orders in respect of PERSON and P. because of “ the immediate threat to their health and life ” .", "On DATE , at TIME , the removal of both children took place , with both children being placed in ORG .", "On DATE the children were removed from ORG and were placed in FAC .", "On DATE the applicants challenged the removal orders . They argued that the authorities had acted unlawfully and that the orders were generally unjustified and disproportionate . The applicants maintained that the authorities had denied them any possibility of visiting the children .", "On DATE the ORG carried out an additional investigation into the living conditions of the applicants’ family .", "On DATE the ORG replied to the applicants’ challenge .", "On DATE ORG of GPE ( “ the ORG ” ) held a hearing in the case and rejected the ORG challenge to the removal orders as follows :", "“ ... having before it the explanations of the participants in the proceedings , the statements of witnesses and the case materials , the court finds that the [ applicants’ ] claims are unfounded for the following reasons .", "In accordance with part CARDINAL of LAW , in case of an imminent threat to the life and health of a child [ the agency ] can immediately remove the child from its parents , the removal being carried out on the basis of a decision by a municipal authority ...", "Taking into account the evidence collected , the court is also of the view that there were reasons to remove the children because of an immediate threat to their life and health . On the date the contested removal order was made , the stairs [ in question ] had still not been secured , despite repeated warnings . Criminal proceedings have been brought in respect of [ the second applicant ] ... and investigative actions are being taken . In view of this situation , with the presence of serious injuries on PERSON and the failure to secure the hazardous items , [ the agency ] had reasons to issue the removal orders ... ”", "On DATE , upon an appeal by the applicants , ORG upheld the judgment of DATE , essentially confirming the conclusions of the first - instance court .", "On DATE the ORG brought court proceedings for the revocation of the adoption of PERSON and PERSON in LOC of GPE ( “ the PERSON District Court ” ) .", "On DATE the Preobrazhenskiy District Court held hearings in the case .", "On DATE the ORG rendered a judgment in the case in which it revoked the adoption . The court stated as follows :", "“ On DATE [ the ORG ] conducted a check of the applicant ’s house , which included a review of video materials showing episodes in the life of the parents and children and , as a result of continuous interviews with [ the applicants ] , it was established that the stairs [ in question ] had still not been secured , whilst the trauma sustained on DATE by PERSON was not an unusual event because serious falls had taken place before as well .", "The fact of PERSON having fallen off the dog ’s kennel ( in DATE ) , which occurred before the incident of DATE , was not denied by the [ applicants ] in court .", "On DATE [ G. and P. ] were removed from the [ applicants’ family ] owing to the situation in the family , which posed a threat to the life and health of the children , as well as owing to the institution of criminal proceedings ...", "On DATE the ORG issued the results of an examination of the children from which it could be seen that P. had arrived at the hospital in a satisfactory condition , but with a wet cough , a congested pharynx , rough breathing , elongated exhalation , wheezing , ... diagnosis : obstructive bronchitis . At the same time , until the removal the child had not been treated by a paediatrician , since [ the applicants ] had not registered the child with a hospital and had not had her examined by a paediatrician .", "The examination of PERSON showed that his condition was satisfactory and that he was admitted suffering from the consequences of skull and brain trauma as well as a thermal burn to the face and scalp .", "In the set of criminal proceedings instituted on DATE [ the second applicant ] was accused of a criminal offence under subpart ( d ) , part CARDINAL , of ORG CARDINAL and CARDINAL of LAW , whilst [ the first applicant ] was accused under LAW .", "On DATE the children PERSON and PERSON were placed in FAC for a medical examination and treatment as a result of their transfer from ORG of LOC . PERSON was admitted to ORG in a moderately serious condition .", "At the time of his admission ... PERSON was diagnosed as follows : hyperactivity syndrome with attention deficit , bruises on the left frontal bone and scratches on the body and extremities , balanitis , navel hernia , seborrhoeic dermatitis . From the medical card it also appears that apart from the above - mentioned diagnosis , PERSON was also diagnosed with developmental delay , acute rhino - pharyngitis , functional cardiopathy , acute pancreatitis , dyskinesia of the biliary pathways , slight isometropic myopia , acute allergic reaction ( food ) and first - degree obstruction of the adenoids .", "At the time of her admission ... P. was diagnosed as having : minimal brain dysfunction , acute rhino - pharyngitis , functional cardiopathy , reactive pancreatitis , dyskinesia of the biliary pathways , weak long vision , acute allergic reaction ( food ) . The condition at the time of admission was of medium gravity .", "The above diagnosis confirms that the [ applicants ] failed to pay sufficient attention to the children ’s health , did not take steps to treat them in due time and moreover did not even register them with a local polyclinic ...", "Moreover , as has been established by the court and can be seen from the statements of the [ applicants ] , they are not keen to apply to [ local ] polyclinics and prefer selftreatment for both themselves and their children , as well as an uncontrolled coldwater treatment , which , according to the [ agency ] , the prosecutor and the court , is obviously not in the children ’s interest and actually poses a danger to the life and health of the children remaining in this [ family ] without access to the necessary medical aid . Further , at the time of [ the adoption ] they were given recommendations concerning the mandatory follow - up of each child by the appropriate doctors , including a paediatrician .", "It can not be concluded from the fact that the [ applicants ] took their children to a neurologist , orthopaedist , and dentist , that they took due care of the children ’s health , since the examinations at the GPE and GPE hospitals diagnosed the children as being in need of treatment by doctors and attention from the [ applicants ] , but the [ applicants ] did not take any such measures .", "The [ applicants’ family ] did not find the time to obtain medical insurance certificates in due time and only on DATE did they receive an insurance certificate in respect of P. , and on DATE in respect of PERSON This also confirms their improper attitude in respect of the children ’s health , and that very attitude fails in securing the protection of the children ’s health and poses a threat to the health and life of the children ...", "... under LAW an adoption may be revoked in cases where the adoptive parents fail to fulfil their parental obligations , abuse their parental rights , treat the adopted children cruelly , or suffer from chronic alcoholism or drug addiction .", "The court may also revoke an adoption in other cases , taking into account the interests of the child and having regard to the children ’s opinion .", "The court is of the view that in the present case there are grounds to revoke the adoption because the [ applicants ] had an improper attitude in respect of the health and security of the children , which posed and still poses a danger to the life and health of the children , including , among other things , failure to provide the children with the necessary medical assistance , which , it was established by the court , they need . The reckless attitude of the [ applicants ] in respect of the health and security of the children , and the strong inclination of the [ applicants ] towards self - treatment poses a danger to the life and health of the children , and therefore the revocation of the adoption is in [ the children ’s ] interest .", "The fact that the [ applicants ] have received positive character references , including by all witnesses questioned by the court during the examination of the case , and that they have some savings and property , even though they are unemployed , as well as the fact that they wish to continue to bring up the children , can not serve as a basis for refusing the application , since the claims have been proved and [ the application ] is made solely in the interests of the children .", "The statements of witnesses [ who all without exception gave positive character references concerning the applicants ] ... can not be taken into account by the court in order to reject the application , since those witnesses did not witness the events of DATE and these events pose a threat to the security of the children , and to their life and health , and make it impossibile for the children to remain in the [ applicants’ ] family .", "Having examined the evidence presented ... and taking into account the opinion of the [ agency ] concerning the need to revoke the adoption of the children , and given the improper attitude of the [ applicants ] in respect of the health and security of the children , the court finds that the application must be granted in full , since this is in the interests of the children , who in the future will be able to find a home with another family that will take due care of them and provide them with secure conditions for their life and development , as well as take due care of their health and development ... ”", "In addition to revoking the adoption , the court cancelled the relevant entries in the official database concerning the parental relationship between the applicants and PERSON and P.", "On DATE ORG issued a full version of the judgment .", "The judgment was upheld on appeal by ORG on DATE .", "On DATE criminal proceedings were brought by the investigatory department of ORG of ORG of the ORG ( “ the investigation authority ” ) against the applicants on account of the incident of DATE .", "DATE . On DATE PERSON was examined at the ORG institute of forensic examinations in the town of ORG in LOC .", "DATE and DATE PERSON was also examined at ORG of LOC . The commission consisted of CARDINAL doctors of various specialisations , including paediatricians .", "On the basis of the evidence collected during the criminal investigation , on DATE the investigation authority brought criminal charges against the second applicant . She was charged under Article CARDINAL ( non - fulfilment of duties relating to the care of minors ) , part CARDINAL of subpart “ d ” of LAW ( infliction of physical sufferings through regular beatings in respect of a minor ) , part QUANTITY of subpart “ c ” of LAW ( intentional infliction of moderate harm on health in respect of a person in a helpless situation ) and LAW ( knowingly leaving in a dangerous situation a person incapable of taking measures to save himself due to young age ) of LAW of GPE . Criminal charges were also brought against the first applicant . He was charged in connection with the same events under Articles CARDINAL and CARDINAL of LAW . PERSON became a victim in the criminal case , his interests being represented by an official of ORG .", "During the hearing of CARDINAL DATE the trial court examined the witness PERSON . , a principal doctor at ORG . He stated , among other things , that the press had been “ admitted upon the order of someone in ORG , to be ‘ allowed at [ his ] discretion’ ... ” .", "During a cross - examination on DATE , witness Dav . , a children ’s surgeon at the same hospital , admitted that the photographs disseminated by the media had been taken with her personal camera but stated that they had been taken by someone else and not by her . As regards the question whether it was usual practice to take photographs of sick patients , she stated as follows : “ I know nothing about such a practice , I did it only once , with the permission of the patient ... ” .", "She also stated : “ ... during the medical examination I asked the father what had happened and where the injuries had come from , to which the father ... responded that the boy had spilled hot water on himself from a kettle and then fallen down the stairs leading from the second to the first floor . Thereafter the father went [ out of the room ] and I asked the child [ the same question ] . The boy answered that his mother had pushed him , and at that moment the boy ’s father came back and , having apparently overheard our conversation , said that the child would ‘ come up with a GPE now . Since the child was diagnosed with having injuries dating from different times , I indicated to the medical sister in charge that she should ... [ report the case to the police ] ... ” .", "On DATE , during a cross - examination before the trial court the witness Gor . , head of the department of microsurgery at the same hospital , admitted that the photograph distributed by the media had been taken by him , that photographs had been taken for professional use and that he had given them to doctor Pen . He also admitted that no consent had been obtained either from PERSON or from his parents in connection with the taking of the photographs , that the taking of photographs was not a usual practice , and that the photographs had been taken because “ the police had been informed [ about the case ] ” .", "Doctor PERSON . , the head of the third department of traumatology , was questioned as a witness on DATE . He gave evidence as follows :", "“ Q : Explain more about the photographs of PERSON and how you gave them out and to whom ?", "A : Since the child was in my department , they were all here . Then PERSON . came , and showed his ORG as an assistant to [ a well known member of the NORP State Duma ] and very seriously asked me to make him copies . I remembered that I was obliged to obey . PERSON . then went to my PC and sent the photographs by electronic mail to his account .", "Q : Did you check his identity ?", "A : He showed his ORG .", "Q : Did he show you a written request for information ?", "A : No .", "...", "Q : What was the purpose of these photographs ?", "A : They had no value for me – PERSON had third - degree burns , that is quite rare . They heal on their own . Usually burns are deep and take a longer time to recover .", "...", "Q : Were you fired [ after the events ] ?", "A : Yes , but not because of the photographs , but because of the admission of the press into the department .", "Q : Did you do it [ allow the admission of the press ] ?", "A : No , that was the order of my superior ... ”", "The witness NORP . , a doctor with the emergency services , was questioned in court on DATE and stated it was he who had made an entry in the medical file to the effect that PERSON ’s father had told him that PERSON had been ill - treated by his drunken mother . He conceded that this information was a falsehood , that the first applicant had never told him this , that he had no grounds to believe it , and that he had made this entry as a result of “ pure emotion ” .", "On DATE ORG of LOC examined the criminal case against the applicants and delivered their judgment . The first applicant was acquitted in respect of the charges under LAW and the prosecution had dropped the charges against him LAW . The second applicant was found guilty under Articles CARDINAL ( non - fulfilment of duties relating to the care of minors ) and CARDINAL ( intentional infliction of mild harm to health ) of LAW . She received a cumulative sentence of DATE and CARDINAL months’ correctional work , which meant that during that period the second applicant had to pay MONEY of her salary to the ORG . As regards the other charges , the second applicant was either acquitted or the charges were dropped .", "Both the second applicant and the legal representatives of PERSON appealed against the judgment . They all disagreed with the court ’s conclusion and argued that the second applicant should be acquitted in full .", "NORP The prosecution also appealed against the judgment , insisting that the applicants were guilty and demanding the quashing of the judgment in the part acquitting them .", "On DATE ORG examined and rejected the parties’ appeals and upheld the judgment of DATE .", "The applicants submitted that during PERSON ’s stay in ORG DATE , the hospital ’s administration on several occasions admitted a number of third persons , including journalists , photographers and various public figures , to PERSON ’s room . These third persons were allowed to interview PERSON and to take photographs of him and his injuries . Among those admitted to see PERSON by the hospital ’s administration was one PERSON . , an assistant to a well - known member of the NORP State Duma .", "The applicants were not informed about these visits , interviews and photograph sessions , let alone asked for their authorisation .", "On DATE a number of national media sources belonging to the same media group and including the life.ru website and the newspapers Zhizn’ and Tvoy den’ started publishing material about the case of PERSON and his adoptive parents , using their full names and photographs . According to the applicants , the material included photographs of PERSON in ORG and suggested that PERSON ’s injuries had been caused by ill - treatment at the hands of his parents . The newspapers also learned from unspecified sources of PERSON ’s adopted status and at once made this information public .", "Thereafter various national media sources followed suit , publishing articles with the following titles : “ Mother with a devil ’s heart ” , “ I was beaten by my Mum ” , “ Mummy beat me up with a hot kettle full of boiling water ” , “ Monster - mummy is facing jail for ill - treatment of child ” , “ Mummy tortured adopted [ child ] ” , “ Gestapo Mummy ” and so on .", "On DATE the applicants’ case was discussed in ORG of GPE .", "On DATE the GPE - wide TV channel ORG broadcast a programme , Pust’ PERSON , ( “ Let them speak ” ) entirely devoted to the applicants’ case , with various individuals , including public figures , commenting and speculating on what had happened to PERSON and what was the appropriate State reaction in this connection . PERSON . was invited as a guest and stated as follows :", "“ ... The child was admitted to hospital with so - called multi - trauma . This means that the injuries were not isolated but were multiple , including the burn on the face and heavy beatings and bruises to the sexual organs . And the doctors have now clearly given an assessment of these actions . They say that the child was admitted unconscious , which means that he could not tolerate the level of pain that he was suffering at home . And he was at home in this condition not for DATE . And the parents had taken him to the hospital not to have stitches to a scratch on his face , but because he was nearly dead . This is clearly confirmed by doctors ... ”", "DATE . This statement was accompanied by both photographs and video footage of PERSON taken by the crew of the television channel during his stay in hospital . It is clear from the video footage that the media crew had direct access to PERSON during filming . During the programme PERSON . publicly showed photographs of PERSON obtained from the doctors of ORG .", "On DATE the ORG channel broadcast video footage of PERSON in ORG in its programme GPE . The media crew had direct contact with PERSON and was , among other things , able to question him in respect of the circumstances of the incident .", "The Government submitted that ORG did not keep any logs of visits by third persons , but that visits by third persons were possible under the applicable rules . The Government admitted that the applicants’ allegations concerning unauthorised access to PERSON by third persons , the unauthorised taking of photographs of PERSON and the dissemination of these photographs were true . They submitted the following description of the events .", "On DATE a police officer was admitted for a talk with a doctor and the hospital administration . He did not have access to PERSON", "On DATE , with the permission of ORG and the hospital administration , CARDINAL media crews from the leading NORP TV channels ( ORG , ORG , ORG and ORG ) were admitted to the relevant department , but did not have access to PERSON , so they stood and filmed their footage in the lobby .", "On DATE the head of the relevant department of the hospital received a direct oral request from PERSON . seeking to gather information about the child . PERSON . did not have access to the child , but he received electronic copies of photographs of PERSON with injuries , in hospital settings . According to the Government , the photographs had not been meant for dissemination in public but had been taken by a doctor for professional reasons .", "The Government also submitted that on DATE the ORG Prosecutor ’s office of GPE had issued an official warning to ORG in connection with media access to the hospital . This warning had resulted in the decision to dismiss the head of the department , ORG . , and to reprimand a deputy principal doctor at the hospital . The Government denied that the leaks about the adopted status of the child had come from the doctors of that hospital .", "On DATE the applicants requested the investigation authorities to institute criminal proceedings in respect of a breach of secrecy concerning the adopted status of their children under LAW .", "DATE . It appears that this application was initially joined to the criminal proceedings in connection with PERSON ’s alleged ill - treatment . In the decision of CARDINAL DATE the investigation authority mentioned that the secrecy of ORG adoption had been breached . The discussion of this question apparently did not initially result in any developments leading to a separate investigation . The applicants were not notified of the decision .", "In an application of CARDINAL DATE the applicants also requested the investigation authority , inter alia , to investigate the actions of the hospital administration which had authorised access to PERSON by the various third persons , and which had resulted in the allegedly intrusive media coverage of their case . This application was apparently not responded to .", "On DATE ORG of LOC of LOC initiated a separate investigation in connection with the breach of the secrecy of PERSON ’s adoption .", "On DATE the applicants were given victim status and subsequently questioned .", "On DATE , in the absence of any suspects , the criminal investigation was suspended . It does not appear that the investigation had taken any steps with a view to identifying the suspects in the case or to question the journalists or editors of the media which had made the relevant information public .", "On DATE the suspension of the investigation was quashed by the deputy at ORG office , because “ not all possible investigatory measures ” had been carried out .", "The investigation is apparently still pending .", "On DATE the applicants attempted to bring defamation proceedings against PERSON . , the Tvoy Den’ newspaper , and ORG in LOC of GPE on account of PERSON . ’s statements that he had been in contact with PERSON in the hospital and that the boy had been severely beaten and was barely alive .", "It appears the case was later transferred to LOC of GPE , because PERSON . ’s exact place of residence could not be established . ORG made some efforts to identify and summon PERSON . to court . In particular , the court made a number of requests , inter alia , to the NORP State PERSON and ORG . These efforts were to no avail because PERSON . was an unpaid pro bono assistant , and not a staff member , so ORG did not have information on his whereabouts .", "On DATE the applicants withdrew the claim in view of the impossibility of locating and summoning PERSON . , whom they described as the main defendant in the case .", "The second applicant brought civil proceedings in connection with her right to the protection of her honour , dignity and reputation against ORG - Rus , the publisher of the NORP Den’ newspaper . The claim contested the following CARDINAL articles published in that newspaper and requested the defendant to officially refute them :", "( a ) NORP In issue no . CARDINAL of DATE , on the front page there was a photograph of the second applicant with the comment : “ Mummy with a devil ’s heart ” . To the left of the photograph there was another comment : “ A DATE , PERSON , from an ‘ elite’ village in LOC , was severely beaten by his drunken adoptive mother ” . Then there was a reference to an article by journalists GPE and GPE , published on pages CARDINAL and CARDINAL of the same issue . The article was entitled “ I was beaten by my mother ” . It stated : “ A boy was beaten and burned by his adoptive mother [ who was ] in a state of alcoholic intoxication ( according to his father ) ” ... and included the following additional headlines “ Drunken mother cripples her adoptive child ” , “ DATE of humiliation for DATE PERSON ” .", "( b ) In issue no . DATE , of CARDINAL DATE , on the front page there was a photograph of the second applicant with the following comment : “ Monster Mummy is facing jail for cruel treatment of child ” . On the left of the photograph and on pages CARDINAL and CARDINAL of the newspaper it was stated that “ ... doctors made an official conclusion that the child , who ended up in ORG on DATE , had been beaten by his adoptive mother ” . On the front page there was a headline “ Mummy beat me up with a red hot kettle of boiling water ” . A headline above the article stated : “ Mother tortured her adoptive CARDINAL son with a red hot kettle ” . A headline above the second applicant ’s photograph stated : “ Gestapo Mummy ” .", "( c ) NORP In issue no . CARDINAL , of DATE , on pages CARDINAL and CARDINAL there was an article entitled “ Payback for the torments of an angel ” . The article stated : “ On DATE she [ the second applicant ] was taken away to psychiatric clinic no . CARDINAL in the town of Vidnoye ” . It further stated : “ An expert examination made it clear to the specialists that [ she ] is of sound mind : the woman can clearly , comprehensively and accessibly answer all questions , and the expert examination of her test drawings shows no signs of serious deviations . However , according to the doctors , [ she ] has long been in receipt of strong psychotropic substances . The adoptive mother is directed to undergo an additional examination ; she needs to give blood samples to be tested for drugs and psychotropic substances ” .", "( d ) In the issue of DATE an article covering the applicants’ case mentioned that PERSON had “ deep bloody scratches caused by human nails ” .", "ORG of GPE examined the case on DATE . The court noted that the dissemination of the information referred to by the second applicant remained uncontested , and invited the defendant to justify the truthfulness of the published material in question . It then examined the evidence referred to by the defendants in order to establish the truthfulness of the material . In particular , the court examined PERSON . , CARDINAL of the doctors who had treated PERSON , who described PERSON ’s condition at the time of his admission and repeated the version of events he had heard from the first applicant ; he also stated that PERSON had at some point mentioned that he had been struck by his mother with a kettle . The court also examined an entry in ORG medical register made by doctor PERSON . which stated that , according to the boy ’s father , PERSON had been beaten and burned by his adoptive mother , who was in a state of alcoholic intoxication , the beatings having taken place at TIME The court also examined various photographs of PERSON with injuries and heard PERSON . , a nurse who had been assisting doctor PERSON . at the time . Lastly , the court refused to hear the first applicant as a witness but examined the second applicant ’s medical file from psychiatric clinic no . DATE , which confirmed that the second applicant had been in that clinic , with the diagnosis mentioned in the newspaper , and had been , among other things , ordered to give additional blood samples for testing for drugs and psychotropic substances .", "Overall , the court concluded that the factual information contained in the contested material about PERSON ’s case was truthful , and that the medical information about the second applicant ’s stay in clinic no . DATE was also truthful and could not be seen as in any way damaging to the second applicant ’s reputation . The court also rejected as unproven the second applicant ’s allegations that PERSON ’s photographs had been heavily retouched by the defendant for a dramatic effect . As regards the descriptive comments about the second applicant ’s role in PERSON ’s injuries , the court considered that they represented value judgments not susceptible of proof in court . On the basis of the above , the court rejected the second applicant ’s claim as groundless . The court did not address the second applicant ’s arguments concerning the breach of her right to the presumption of innocence as a result of premature speculations concerning the nature and degree of her responsibility for PERSON ’s injuries .", "On DATE ORG examined and , without responding to the second applicant ’s arguments , rejected her appeal against the firstinstance judgment of DATE .", "On DATE PERSON and PERSON were placed in the custody of the relevant bodies of GPE and some time later placed in the ORG educational establishment “ Social asylum for children and adolescents ” of ORG ( “ the children ’s home ” ) . They remain there to date .", "It does not appear that the applicants had any access to either PERSON or PERSON between DATE and DATE . It appears that DATE and DATE the applicants were allowed to leave food and gifts for the children at the foster home . On DATE the children ’s home granted the applicants permission to visit . Since DATE the applicants have had regular DATE access to both children .", "On DATE the applicant ’s lawyer interviewed PERSON . , a teacher from the children ’s home , who confirmed that the children thought about and had not forgotten their parents and wanted to return to their family , and that it would be better to return the children to their parents .", "In an interview conducted on DATE , the director of the children ’s home , PERSON . , stated that he agreed with the position of PERSON . and was also of the view that the children ’s condition had greatly improved and that it would be better for them to return to their parents .", "On DATE the first applicant lodged an application with the ORG requesting a review of the revocation of adoption proceedings in view of his recent acquittal , and sought to recover his lost rights . He asked the court to declare him the father of the children and to physically to return them to him .", "On DATE the children ’s home also lodged an application with ORG asking for a review of the revocation proceedings in the interests of the children and with a view to reuniting the family .", "The first applicant ’s application was supported by ORG , which now considered that PERSON and PERSON would be better off returning to the family of their former adoptive parents .", "By a decision of CARDINAL DATE ORG examined the application by the children ’s home and dismissed it for lack of standing . The court concluded that since the children ’s home had not been a party to the original set of proceedings , it had no right to apply for a review of the judgment of CARDINAL DATE .", "By a decision of CARDINAL DATE ORG examined and rejected the first applicant ’s application . The court considered that the circumstances referred to by the first applicant could not be seen as newly discovered within the meaning of the applicable domestic law .", "On DATE the first applicant applied for the restoration of the adoption to FAC . Since the domestic law did not contain any legal provision allowing for restoration of adoption in respect of adoptive parents whose parental rights had been removed , the first applicant requested the court to apply the legal provisions applicable to natural parents which provided for the restoration of their parental rights if they had previously had such rights restricted or been deprived of them , and to apply them in his case by analogy .", "This request was maintained and supported by ORG , which took the view that the return of PERSON and PERSON to the applicants’ family was in the interests of the children .", "By a decision of CARDINAL DATE ORG examined and rejected the first applicant ’s request . The court considered that the application of the law by analogy in such cases was not possible .", "NORP That decision was upheld on appeal by ORG on DATE . The court took the view that the domestic law did not provide for the possibility of restoration of adoption after it had been revoked and agreed with the first instance court that the law in respect of natural parents could not be applied to the adoptive parents by analogy .", "“ CARDINAL . Everyone has the right to the inviolability of his / her private life , to personal and family confidentiality , and to the protection of his honour and good name ... ”", "“ CARDINAL . Everyone is guaranteed freedom of thought and speech ...", "Everyone has the right freely to seek , receive , transfer , produce and distribute information by any legal means . The list of information subject to ORG secrecy is set out in the federal law .", "NORP The freedom of the media is guaranteed . Censorship is prohibited . ”", "“ CARDINAL . Children shall have the right to the protection of their rights and legal interests .", "A child ’s rights and legal interests shall be protected by his parents ( or substitute parents ) , and , in the cases stipulated in the present Code , by ORG , the Prosecutor and the court .", "...", "Children shall have the right to protection from abuse on the part of the parents ( or substitute parents ) .", "If the child ’s rights and legal interests are violated , including where the parents ( or CARDINAL of them ) fail to discharge , or improperly discharge , their duties in relation to the child ’s upbringing and education , or where they abuse their parental rights , the child shall have the right to apply on his own initiative for the protection of ORG , and – upon reaching DATE to a court .", "Officers of organisations or other citizens who have learnt of a threat to the life or health of a child or a violation of his rights or legal interests are obliged to report this to ORG for the child ’s current place of residence . Upon receipt of such information , ORG is obliged to take the necessary measures to protect the child ’s rights and legal interests . ”", "“ CARDINAL . A court may , taking into account the interests of the child , decide to remove the child from the parents ( CARDINAL of the parents ) without stripping them of their parental rights ( restricting their parental rights ) .", "NORP The restriction of parental rights is allowed when leaving the child with his parents ( one of the parents ) is dangerous for the child due to circumstances which do not depend on the parents ( one of the parents ) , such as mental illness or other chronic disease , the combination of difficult circumstances , and so on .", "The restriction of parental rights is only possible in cases where leaving the child with the parents ( CARDINAL of the parents ) is dangerous for the child on account of their conduct , but sufficient grounds for stripping the parents ( CARDINAL of the parents ) of their parental rights have not been established . If the parents ( CARDINAL of the parents ) do not change their conduct , DATE after a court decision restricting their parental rights the agency is under an obligation to file an application for the parents to be stripped of their parental rights . Acting in the interests of the child , the agency may file such an application up to the expiry of the above - mentioned term ... ”", "“ CARDINAL . Parents whose parental rights are restricted by the court shall lose the right to bring the child up in person , and also the right to the privileges and ORG allowances granted to citizens with children .", "NORP The restriction on parental rights shall not relieve the parents from the duty to maintain the child .", "A child whose GPE ( or CARDINAL of them ) parental rights are restricted shall retain the right of ownership of the living LOC or the right to use the living LOC , and shall also retain property rights , based on his kinship with his parents and with his other relatives , including the right to receive an inheritance .", "NORP If the parental rights of both parents are restricted , the child shall be placed in the care of ORG . ”", "“ Parents whose parental rights are restricted by the court may be allowed to maintain contact with the child , unless this has a negative impact on the latter . The GPE contact with the child shall be permitted with the consent of ORG , or with the consent of the child ’s guardian ( trustee ) , of his foster parents , or of the authorities of the institution where he resides . ”", "“ CARDINAL . If the grounds on which CARDINAL or both GPE parental rights were restricted cease to exist , the court may , upon an application by the parents ( or CARDINAL of them ) make a decision returning the child to the parents ( or CARDINAL of them ) and lifting the restrictions stipulated by LAW .", "NORP The court shall have the right , taking into account the child ’s interests , to refuse to grant the application if the child ’s return to the parents ( or CARDINAL of them ) is contrary to his interests . ”", "“ CARDINAL . If a direct threat exists to the child ’s life or health , the guardianship and trusteeship body shall have the right to remove the child from his parents ( or from CARDINAL of them ) or from any other person whose charge he is in .", "The immediate removal of the child shall be carried out by ORG pursuant to the corresponding order of the local self - governing body .", "When removing the child , ORG must inform the prosecutor without delay , provide for the child ’s temporary accommodation and , within DATE of the decision of the local self - governing body to remove the child , lodge an application with the court for the withdrawal or restriction of parental rights . ”", "“ CARDINAL . The secrecy of a child ’s adoption is protected by the law . Judges who have rendered a judgment concerning the adoption of a child , or other officials who have carried out the ORG registration of an adoption , as well as other persons who have otherwise become aware of an adoption , are obliged to maintain the secrecy of the child ’s adoption .", "Persons indicated in part CARDINAL of the present Article who disclose the adoption of the child against the will of the adoptive parents shall be held liable in accordance with the law . ”", "“ CARDINAL . A child ’s adoption may be revoked if the adopters fail to discharge the parental duties imposed on them , abuse parental rights , treat the adopted children cruelly , or suffer from chronic alcoholism or drug addiction .", "NORP The court may also revoke a child ’s adoption on other grounds , proceeding from the child ’s interests and taking into account his opinion ” .", "On DATE ORG of GPE adopted ORG no . CARDINAL “ On the application of legislation by the court during the examination of cases concerning the adoption of children ” .", "“ CARDINAL . NORP Since adoptive parents acquire their parental rights and obligations as a result of adoption , and not because of the birth of their children , it should be borne in mind that in cases of evasion of parental duties by the adoptive parents , the abuse of parental rights or cruel treatment of the adopted children , as well as if the adoptive parents are chronically sick alcoholics or drug addicts , a court can decide to revoke the adoption ( Article CARDINAL , part CARDINAL of LAW ) , or not to deprive or limit the parental rights ( Articles CARDINAL , CARDINAL of LAW ) . In such cases , the child ’s consent to the revocation of the adoption is not necessary ( LAW ) ... ”", "“ CARDINAL . The intentional infliction of mild harm to health producing a short - term health disorder or insignificant but durable loss of the general capacity to work ... shall be punishable by a fine ... or compulsory work of TIME , or correctional work for a term of DATE ... ”", "“ CARDINAL . The unlawful collection or dissemination of information about the private life of a person constituting a private or family secret without his / her consent , or dissemination of such information during public addresses , in publicly visible work or in the media is punishable by a fine of MONEY or the equivalent of the salary or other income of the convicted person for a period of DATE , or compulsory work for a term of TIME , or correctional work for a term of DATE ...", "NORP The same acts committed by a person through the use of his / her official position are punishable by a fine ... or automatic disqualification from certain offices or certain occupations ... ”", "“ CARDINAL . The disclosure of the secrecy of a child ’s adoption against the will of the adoptive parent by a person who was under an obligation to keep the fact of the adoption a service - related or professional secret , or by other persons out of lucrative or base motives , shall be punishable by a fine ... , or community service ... , or an arrest ... combined with disqualification from holding certain posts or carrying out certain activities ... ”", "“ CARDINAL . NORP The non - fulfilment or improper fulfilment of duties concerning the upbringing of a minor by a parent or by another person ... if this conduct was accompanied by cruel treatment of the minor ... shall be punishable by a fine ... , or community service , or imprisonment ... ”", "“ Information about the fact of an individual ’s application for medical aid , the state of health of a citizen , a diagnosis of disease or other data obtained as a result of his examination and treatment constitute a medical secret . An individual should have a firm guarantee of the confidentiality of the information imparted .", "The dissemination of information constituting a medical secret by persons who have had access to this information as a result of the educational process or the execution of professional , service or other obligations , except for the situations set out in parts CARDINAL and CARDINAL of the present article , is not allowed .", "Upon an individual ’s or his representative ’s consent , the transfer of information constituting a medical secret to other individuals , including officials , in the interests of the medical examination and treatment of a patient , for scientific examination , publications in scientific literature , or the use of this information in the educational process , is allowed .", "Information constituting a medical secret may be furnished without the consent of the individual in question or his representative :", "CARDINAL ) NORP in order to examine and treat an individual who is incapable on account of his condition of expressing his will ;", "CARDINAL ) NORP in case of the threat of dissemination of infectious diseases , mass poisoning or infections ;", "CARDINAL ) upon the request of [ various official investigation ] bodies or a court in connection with a pending investigation or court proceedings ;", "CARDINAL ) upon a request from a body carrying out supervision in respect of the behaviour of a convict ... ;", "CARDINAL ) NORP in case of treatment of an underage person [ in cases of drug addiction ] , to keep their parents and legal representatives informed ;", "CARDINAL ) where there are grounds to believe that harm to the health of an individual has been inflicted as a result of unlawful actions ;", "CARDINAL ) with a view to carrying out a military medical examination ...", "Persons , who , in accordance with the law , are in receipt of information constituting a medical secret , are , along with medical and pharmaceutical officials , liable , account being taken of the extent of the resulting damage , for the disclosure of the medical secret under the disciplinary , administrative or criminal law in accordance with the [ relevant ] legislation . ”", "“ Disclosure of information to which access is limited by a federal law ( except for cases in which such disclosure leads to criminal liability ) , by a person who had access to this information connection with the execution of his service or professional duties ... is punishable by an administrative fine of CARDINAL NORP roubles in respect of individuals and CARDINAL Russian roubles in respect of officials . ”", "“ CARDINAL . Life and health , the dignity of an individual , personal integrity , honour and good name , business reputation , the inviolability of personal life , personal and family confidentiality ... belong to an individual by birth or by law , are inalienable and are not transferrable by any other means ...", "Intangible rights are protected in accordance with this LAW and other [ relevant ] laws ... as well as in such cases and within such limits where the use of the methods for the protection of ... the rights ... flows from the nature of the intangible right breached and the character of the consequences of such a breach . ”", "“ If non - pecuniary damage ( physical or moral suffering ) has been inflicted upon an individual by acts violating his personal non - pecuniary rights or encroaching upon other intangible interests belonging to the individual , as well as in other cases set out in the law , a court may order the perpetrator to pay monetary compensation for the said damage .", "In determining the amount of compensation , the court takes into account the degree of liability of the perpetrator and other relevant circumstances . The court also has to take into account the degree of physical and moral sufferings in the context of the individual features of the person on whom the damage was inflicted . ”", "“ CARDINAL . An individual has a right to claim in court retraction of information damaging his / her honour , dignity or business reputation , if the person having disseminated such statements has failed to prove that they corresponded to reality ...", "NORP If damaging statements were disseminated in the media , they should be retracted in the same media ...", "An individual concerned by the dissemination of damaging information ... has a right , along with the right to request refutation of such information , to ask for damages and compensation for non - pecuniary damage resulting from such dissemination ...", "NORP In case it is impossible to identify a person responsible for the dissemination of the [ defamatory information ] , the individual concerned has the right to apply to court seeking to have the information in question declared untrue . ”", "“ CARDINAL . Publication and further use of an image of an individual ( including his photograph , as well as video footage or works of art in which he / she is depicted ) are only permitted with the consent of the individual ...", "Such consent is not necessary in cases where :", "CARDINAL ) NORP the use of the image takes place in the interest of the ORG , society or other public interest ;", "CARDINAL ) NORP the image was obtained during filming which took place in places open for free admission or at public gatherings , except for cases in which the image is the main object of [ commercial ] use .", "CARDINAL ) NORP the individual posed for a fee . ”", "“ CARDINAL . Unless specifically authorised by law , the collection , storage , distribution and use of any information about the private life of an individual , including information about his origins , where he stays or resides , about private and family life , the biographical facts of such person , or his participation in court proceedings , is not allowed without his consent .", "The collection , storage , distribution and use of information about the private life of an individual which is in the interest of the ORG , society in general , or other public interest is excluded from this rule . The other exception to this rule is when the information about the private life of an individual has been made commonly available or disclosed by the individual himself or with his agreement .", "Unless a contract between the parties provides otherwise , the parties are bound not to disclose information that they have received under a contract about a party or CARDINAL party to such a contract ...", "Where the information about the private life of an individual obtained through a breach of law is contained in documents , video footage or other material means of storage , the individual has the right to request a court to seize the means of storage ... and to destroy it without any compensation ... ”", "On DATE ORG of GPE adopted ORG no . CARDINAL “ On judicial practice in cases concerning the protection of the honour and dignity of individuals and the business reputation of individuals or legal persons ” , in which it reminded the lower courts that they should take into account the provisions of LAW and the case - law of ORG . More specifically , in part CARDINAL of the ORG , ORG noted that cases concerning the protection of honour , dignity and business reputation should be differentiated from cases concerning the protection of other intangible rights the inviolability of which is specifically protected by LAW and other laws and the dissemination of which may cause nonpecuniary damage even if the information in question is truthful and non - defamatory . In particular , in cases concerning the dissemination of information about the private life of an individual , it should be taken into account that unauthorised dissemination of even truthful information concerning private life may lead a court to award compensation for nonpecuniary damage resulting from the dissemination of such information ( Articles CARDINAL and CARDINAL of LAW ) . The only exception to this rule was when the information about the private life of a plaintiff had been disseminated with the aim of protecting some public interest under part CARDINAL of LAW of the LAW “ On the media ” ... If false information about the person ’s private life was disseminated , then a defendant could be obliged not only to retract such information , but also to compensate any resulting non - pecuniary damage under LAW .", "ORG also explained in part CARDINAL of the ORG that actions in defence of honour , dignity and business reputation could be brought by individuals and legal entities who considered themselves to have been injured by the disseminated information . Judicial protection in such cases could be granted even in cases where it was impossible to identify the person who had disseminated the information ( for instance , in cases of anonymous letters directed at individuals and organisations , or publication of information on the internet by an anonymous user ) . Under part CARDINAL of LAW the court could declare the disseminated information untrue and defamatory . Such cases were examined by the courts under a special procedure set out in subsection PERSON of LAW of GPE .", "NORP In part CARDINAL of the ORG , ORG also explained that the proper defendants in such cases were the authors of the disseminated information as well as those who had taken part in its dissemination . If the information had been disseminated by the media , the proper defendants were both the author of the information and the editorial board of the media involved , or the persons in charge of their production .", "NORP In its overview of the judicial practice in the examination of cases concerning the protection of honour , dignity and business reputation and the inviolability of the private life of public persons in the sphere of politics , art and sport ( bulletin no . CARDINAL for DATE ) , ORG noted that protected private information was listed , in particular , in Presidential Decree no . ORG dated DATE .", "On DATE the President of GPE adopted decree no . ORG , which contains a list of information having a confidential character :", "“ CARDINAL . Information on facts , events and circumstances concerning the private life of an individual which enable the individual to be identified ( personal data ) , except for information which can be disseminated in the media in situations defined by the federal laws .", "Secret information in an investigation or judicial procedure ...", "NORP Official data access to which is limited by the ORG bodies according to LAW ... and federal laws ( official secret ) .", "Information relating to professional activity to which access is limited in accordance with LAW and federal laws ( [ including ] medical confidentiality ... ) . ”", "Article CARDINAL of the Code of Civil Procedure of GPE contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances . A judgment of ORG finding a violation of LAW in a case in respect of which an applicant lodged a complaint with the ORG should be considered a new circumstance warranting a reopening ( LAW ( CARDINAL ) ) .", "This provision defines the duties of a journalist and mentions in its part CARDINAL that when disseminating information on the private life of an individual in the media a journalist is bound to secure the consent of the person(s ) concerned and/or their representative except for situations where dissemination is necessary for the protection of the interests of society .", "“ ...", "Upon application by a member of ORG or a member of ORG on questions relating to the functioning of ORG bodies , local authorities , NGOs and organisations to such bodies , the officials of such bodies and organisations are obliged to reply without delay ( where further materials are required DATE not later than CARDINAL days from the date of application ) and provide the requested documents and information . At the same time , information constituting a ORG secret is provided in accordance with an order set out in the federal law on ORG secrets ... ”", "“ CARDINAL . ... A member of ORG has the right to have assistants in connection with their work in GPE ...", "NORP ... A member of ORG has the right to have CARDINAL assistants working pro bono ... ”", "“ CARDINAL . An assistant to a member of ... ORG :", "...", "c ) upon assignment to the member of ... ORG , receives from ORG bodies [ and other organisations ] the documents required by the member ... ”", "The Convention on the Rights of the Child was adopted by ORG of ORG on DATE and came into force on DATE . It has been ratified by ORG . Its relevant provisions read as follows :", "“ CARDINAL . In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration .", "DATE States Parties undertake to ensure the child such protection and care as is necessary for his or her well - being , taking into account the rights and duties of his or her parents , legal guardians , or other individuals legally responsible for him or her , and , to this end , shall take all appropriate legislative and administrative measures .", "DATE States Parties shall ensure that the institutions , services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities , particularly in the areas of safety , health , in the number and suitability of their staff , as well as competent supervision . ”", "“ CARDINAL . DATE States Parties shall ensure that a child shall not be separated from his or her parents against their will , except when competent authorities subject to judicial review determine , in accordance with applicable law and procedures , that such separation is necessary for the best interests of the child . Such determination may be necessary in a particular case such as CARDINAL involving abuse or neglect of the child by the parents , or one where the parents are living separately and a decision must be made as to the child ’s place of residence .", "NORP In any proceedings pursuant to paragraph CARDINAL of the present article , all interested parties shall be given an opportunity to participate in the proceedings and make their views known .", "DATE States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis , except if it is contrary to the child ’s best interests .", "... ”", "The revised NORP Convention on ORG was opened for signature on DATE and entered into force on DATE . It has been ratified by GPE , namely GPE , GPE , the GPE , GPE , GPE , GPE and GPE . GPE has not ratified or signed the LAW .", "One of the reasons for the revision , as stated in the preamble to LAW , was that some of the provisions of the CARDINAL European Convention on the Adoption of Children were outdated and contrary to the case - law of ORG . The relevant provisions of the CARDINAL Convention read as follows :", "“ CARDINAL . Upon adoption a child shall become a full member of the family of the adopter(s ) and shall have in regard to the adopter(s ) and his , her or their family the same rights and obligations as a child of the adopter(s ) whose parentage is legally established . The adopter(s ) shall have parental responsibility for the child . The adoption shall terminate the legal relationship between the child and his or her father , mother and family of origin .", "Nevertheless , the spouse or partner , whether registered or not , of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child , unless the law otherwise provides .", "... ”", "“ CARDINAL An adoption may be revoked or annulled only by decision of the competent authority . The best interests of the child shall always be the paramount consideration .", "An adoption may be revoked only on serious grounds permitted by law before the child reaches the age of majority .", "... ”", "On DATE ORG Recommendation No . Rec(CARDINAL)CARDINAL on the provision of information through the media in relation to criminal proceedings . Point CARDINAL of the principles appended to the recommendation , reads as follows :", "“ Protection of privacy in the context of on - going 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 persons . 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 . ”", "The commentary to the recommendation states as follows ( paragraphs CARDINAL and DATE ) :", "“ Everyone has the right to the protection of private and family life under LAW . Principle CARDINAL recalls this protection for suspects , the accused , convicted persons and other parties to criminal proceedings , who must not be denied this right due to their involvement in such proceedings . The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court . It furthermore may prejudice the reintegration into society of the person concerned . The same applies to the image of the accused or convicted . Therefore , 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 Principle .", "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 . In this respect , member states may also refer to Recommendation No . R ( CARDINAL ) CARDINAL on the position of the victim in the framework of criminal law and procedure and Recommendation No . R ( CARDINAL ) CARDINAL concerning the intimidation of witnesses and the rights of the defence . ”" ]

[ "8" ]

[ "8-1" ]

[]

[ "8" ]

[ "8-1" ]

[]

[ "NORP In DATE the applicant , a widower with CARDINAL children , remarried . His second wife was a NORP national who herself had CARDINAL children from a previous marriage with a NORP national from whom she had been divorced in DATE . During DATE the applicant ’s wife ’s son and daughter were on school holidays at the applicant ’s home at GPE , near FAC .", "The daughter , ORG , was DATE and a NORP national . On DATE she spent DATE wind surfing . On her return she complained that she felt tired and was not as tanned as she would have liked . As he had done several times in the past , the applicant injected her at TIME with a ferric preparation that was sold under the brand name ORG and was in principle intended for the treatment of anaemia .", "At TIME on DATE the applicant found PERSON dead in her bedroom and proceeded to inject her with various products in an attempt to revive her . A call was made to the emergency services and the body examined by a doctor at TIME He put the time of death at TIME and found no traces of violence , apart from marks made by injections to the thorax and right arm .", "NORP The police immediately started an investigation into the death at the hands of a person or persons unknown and an autopsy was carried out by CARDINAL pathologists on DATE . Although they were unable to determine the cause of death , primarily because the body was in an advanced state of decomposition , they found no evidence of sexual or other assault . Consequently , on CARDINAL DATE the PERSON public prosecutor ’s office made the first of CARDINAL decisions to take no further action in the case , in accordance with LAW of LAW .", "The girl ’s father then requested the PERSON public prosecutor ’s office to make further inquiries , notably on the ground that the autopsy report had been criticised by a NORP forensic doctor to whom he had submitted a copy . The public prosecutor ’s office agreed to his request and sought an expert opinion from ORG in GPE .", "On DATE CARDINAL of the pathologists who had carried out the autopsy said that wounds found to the girl ’s external genitalia had been caused after death . On DATE , after he had carried out a chemo - toxicological and histological analysis and heard the pathologists , the applicant and other members of the family , the expert concluded that the girl had not died of natural causes . However , he was unable to reach any further conclusion about the cause of death , which , in his opinion , could not be attributed to the injection of the ferric product , no traces of which had been found in the body . In DATE a further expert pharmacological examination was carried out to determine the side - effects or contraindications of the ferric product that had been injected on DATE before the girl ’s death .", "On DATE ORG at ORG decided for the second time to take no further action . ORG at ORG ( Oberlandesgericht ) took the view that an appeal lodged against that decision by the victim ’s father on DATE was an internal appeal ( PERSON ) and dismissed it on DATE .", "On DATE the victim ’s father lodged a complaint through his NORP lawyers in which the applicant was named as the suspect in the rape and murder of his daughter . The case file in the investigation that had been started in DATE against a person or persons unknown was joined to the new investigation procedure that had been initiated on the complaint of the victim ’s father . On DATE the public prosecutor ’s office at ORG decided for the third time , on the basis of the conclusions of the various experts in the previous investigation , to take no further action .", "The decision of CARDINAL DATE to take no further action was upheld by ORG at ORG on DATE on the ground that the investigation had produced insufficient evidence to justify a prosecution .", "On DATE , after a petition had been sent to the NORP ORG , the investigation was resumed for the fourth time and on DATE ORG at ORG instructed the public prosecutor ’s office to make further inquiries .", "On DATE the PERSON public prosecutor ’s office requested the ORG public prosecutor ’s office under arrangements for judicial mutual assistance to question the victim ’s younger brother , who was born in DATE , about the circumstances of his sister ’s death . The boy was questioned on DATE .", "In addition , a further pharmacological report on the toxicological effects of the ferric preparation was requested from ORG in GPE , which set out its conclusions in CARDINAL reports dated DATE and DATE . On DATE the PERSON public prosecutor ’s office also requested the NORP authorities under the arrangements for judicial mutual assistance to exhume the body which had been buried in GPE . The LOC investigating judge made an order to that effect on DATE and on CARDINAL DATE the body was exhumed and examined by CARDINAL forensic doctors .", "On DATE , in the light of the conclusions of the expert report and of the negative results of the autopsy that had been carried out after the exhumation , the PERSON public prosecutor ’s office decided for the fourth time to take no further action in the case . That decision was upheld on CARDINAL DATE by ORG at ORG .", "In accordance with the provisions of Article CARDINAL of the NORP Code of Criminal Procedure , the victim ’s father issued proceedings ( ORG ) in ORG in which he complained that ORG should not have upheld the decision to take no further action and sought an order compelling the public prosecutor ’s office to charge the applicant with voluntary or involuntary homicide . In a judgment of CARDINAL DATE ORG of ORG declared the appeal inadmissible .", "On DATE , while continuing to press for the applicant ’s prosecution in GPE , the victim ’s father lodged a criminal complaint for involuntary homicide against a person or persons unknown with the GPE investigating judge and applied to be joined as a civil party to the proceedings . The complaint was based on LAW , which lays down that aliens who commit a serious crime ( crime ) outside the territory of the Republic may be prosecuted and tried under LANGUAGE law if the victim is a NORP national .", "NORP In support of his complaint the victim ’s father lodged documents , expert reports , investigative papers and witness statements that had been obtained by the PERSON public prosecutor ’s office in GPE .", "On DATE the GPE investigating judge sent letters rogatory to the NORP authorities requesting them to question various witnesses and to take certain steps . The PERSON public prosecutor ’s office replied on DATE .", "On DATE the PERSON public prosecutor ’s office sent the investigating judge a photocopy of the investigation file comprising CARDINAL volumes .", "A new investigating judge assigned to the case in GPE was informed by the victim ’s father on DATE that the public prosecutor ’s office had decided for the fourth time on DATE to take no further action . He sent new letters rogatory to the NORP authorities on CARDINAL DATE , in which he invited them to make available to CARDINAL NORP experts , whom he had appointed that day , samples that had been taken during the autopsy and examined by the CARDINAL NORP experts who had compiled the report of CARDINAL DATE .", "In accordance with the NORP letters rogatory , the samples were delivered to the NORP police on DATE and , on DATE , to the experts who had been appointed on CARDINAL DATE . The experts lodged their report on DATE and a supplementary report on CARDINAL DATE , in which they corrected an error of transcription .", "On DATE the GPE investigating judge ordered an additional expert report with a view to ascertaining the precise role and effects of the medicines with which the applicant said he had injected his stepdaughter when attempting to revive her . That report was lodged on DATE .", "On DATE the third investigating judge assigned to the case issued a summons requiring the applicant to appear before him . In a letter of CARDINAL DATE the applicant informed the investigating judge that the NORP authorities had concluded after an investigation that no third party bore responsibility for ORG ’s death and that he saw no reason to travel to GPE . He indicated , however , that he was willing to be interviewed at his home .", "On DATE the investigating judge sent a third set of letters rogatory to the NORP authorities asking them to notify the applicant of the conclusions of the expert reports of DATE and CARDINAL DATE and to put to him , as an “ assisted witness ” , certain precise questions regarding the sequence of events . The applicant was questioned by a NORP judge on CARDINAL DATE .", "On DATE the applicant informed the investigating judge in reply to a request of CARDINAL May that it was not possible for him to travel to GPE and that he had already answered the judge ’s questions . He said , however , that he was willing to reply in writing to any further questions the judge might wish to ask .", "On DATE after the investigation had begun – the applicant was charged with the crime of assault resulting in unintentional death . On DATE he was questioned by a NORP judge acting pursuant to letters rogatory .", "On DATE the investigating judge made an order closing the investigation and sending the file to ORG at ORG , who lodged written submissions on DATE .", "Using the system established by the scheme for international mutual assistance in law enforcement , the applicant was notified of the date of the hearing before ORG on DATE . His lawyer was informed on DATE . Neither the applicant nor his lawyer attended the hearing on DATE .", "By a judgment of DATE ORG of ORG committed the applicant to stand trial in ORG on a count of involuntary homicide . ORG noted the conflicting opinions of the NORP experts who had seen the evidence in the NORP file , including the expert reports . By way of conclusion ORG stated :", "“ The investigation was started on a complaint of voluntary homicide . However , in the order closing the investigation the investigating judge charged PERSON with voluntary assault resulting in unintentional death . ORG and the civil party have also submitted that he should be committed for trial on that charge .", "The court finds that the medical evidence gathered in the course of the investigation suggests that ORG ’s death was a direct consequence of an intravenous injection of a solution that might have been ORG . The injection was contemporaneous with the death .", "In order to justify that act , PERSON has furnished conflicting and untrue accounts , stating firstly that his intention had been to help the girl to tan more quickly and subsequently to treat her for her anaemic condition . ORG does not help people to tan and at the material time ORG was a girl in perfect health , there being no reference in her medical records to any symptoms of anaemia .", "PERSON also lied about the chronology of the events when he affirmed that the injection had taken place TIME before the death . Lastly , the faked attempt to revive her and the use of mutually incompatible products on a living being can only be explained by an intention to conceal the cause of death .", "These factors taken as a whole constitute sufficient grounds for suspecting that PERSON gave the fatal injection not as a cure , but with the intention of causing death . ”", "ORG also issued an arrest warrant .", "On DATE the judgment was served on the applicant through the foreign public prosecutor ’s service . The applicant was summonsed on several occasions for preliminary questioning in order to establish his identity , but refused to comply with any of the summonses .", "The applicant appealed to ORG against the committal order . In his written submissions he argued , inter alia , that the non bis in idem principle had been contravened and that an estoppel per rem judicatam arose , as , although LAW enabled aliens to be tried under LANGUAGE law if the victim of the crime was a NORP national , no prosecution could lie if there had been a final judgment overseas . In that connection , the applicant maintained that a discharge order had been made in his favour on DATE by the PERSON public prosecutor ’s office , an investigating body , and had become final with the decision of ORG of ORG of CARDINAL DATE .", "In a judgment of CARDINAL DATE ORG dismissed the applicant ’s ground of appeal on the ground that it raised a new issue as neither the impugned judgment nor any of the procedural documents showed that the appellant had argued before ORG that the NORP judicial authorities had made a discharge order in his favour in respect of the same offence .", "On DATE the applicant ’s NORP lawyer was informed that the applicant was required to appear before ORG from DATE . On DATE he applied to the President of ORG for an order for a supplementary measure to ensure that the case file contained all the documents from the NORP proceedings . The President dismissed that application by a letter of DATE in which he informed the lawyer that it was for the assize court with lawful jurisdiction in the case to determine whether such a measure was necessary .", "By an order of CARDINAL DATE , which was served on CARDINAL DATE , the President of ORG invited the applicant to report to the authorities within DATE . In accordance with Articles CARDINAL et seq . of LAW , that order was published in ORG ) and displayed in the courtroom of ORG and on the front door to the town hall of the first administrative district of GPE .", "On DATE the applicant wrote a letter to the President of ORG explaining that he was willing to attend the hearing on DATE provided that he received an assurance that he would remain at liberty throughout the duration of the trial . He said that he could not understand the conduct of the NORP authorities , who had failed throughout the investigation in GPE to take the discharge order that had been made in GPE into account . He added that it was his intention to be represented by a lawyer .", "By an order of CARDINAL DATE the President of ORG adjourned the case to CARDINAL DATE .", "The applicant ’s NORP lawyer , assisted by a NORP lawyer , lodged submissions with ORG based on LAW . He sought permission to represent the applicant in his absence and to make submissions regarding various matters , namely : the existence of an estoppel per rem judicatam , a ruling on the estoppel issue by ORG acting on its own initiative , an order for an additional investigation to secure the communication of the investigation file by the NORP authorities and an examination of the scope of the discharge orders .", "By a judgment of CARDINAL DATE delivered by ORG after it had heard ORG submissions calling for a DATE prison sentence , the applicant was found guilty of voluntary assault on his stepdaughter unintentionally causing her death and sentenced to DATE imprisonment .", "ORG explained in its judgment that if the applicant had reported to the authorities , it would have been able to discontinue the in absentia procedure and the applicant would have been able to make any requests that would assist in his defence when complying with that mandatory procedural requirement . It also reminded the applicant ’s lawyers , who were present at the hearing , that LAW prohibited representation for absent defendants and laid down that their submissions were inadmissible .", "In a civil judgment that was also delivered in absentia on CARDINAL DATE , ORG ordered the applicant to pay MONEY ( ORG ) as reparation for non - pecuniary damage and LAW for costs and expenses . The applicant ’s lawyer had lodged a note to ORG in deliberations in which he had pointed out that the total lack of representation for the defence in the civil action constituted a breach of LAW . He complained in particular that he had not been informed of the heads of claim or of ORG submissions .", "By an order of DATE made under LAW , the President of ORG declared the applicant ’s appeals against the judgments of ORG inadmissible .", "A “ GPE ” warrant followed by an international warrant were issued , on dates which are not indicated in the case file , for the applicant ’s arrest .", "On DATE the victim ’s father applied to ORG for an authority to execute ORG judgment ordering the applicant to pay ORG CARDINAL in damages . On CARDINAL DATE ORG granted that application and its decision was upheld by ORG on DATE .", "The applicant appealed on points of law . By a decision of DATE ORG ( ORG ) referred the case to ORG of ORG with a view to obtaining a preliminary ruling on the interpretation of LAW DATE on ORG , which lays down that judicial decisions shall not be recognised if recognition would be contrary to public policy in the ORG in which recognition is sought .", "Among the reasons given by ORG for seeking a ruling was that it considered that the enforcement of the judicial decision obtained by proceedings in absentia such as those conducted in GPE might be regarded as contrary to NORP public policy , at least so far as the civil limb of the proceedings was concerned , as LAW laid down that everyone had the right to be heard ( PERSON auf rechtliches PERSON ) , and that that right incorporated the right to representation by a lawyer . Lastly , referring to LAW , ORG indicated that the decision delivered in absentia appeared to it to infringe the right to access to a court and , as regards the civil limb , the right to equality of arms .", "In a judgment of DATE , ORG of ORG held : “ the court of the ORG in which enforcement is sought can , with respect to a defendant domiciled in that ORG and prosecuted for an intentional offence , take account , in relation to the public - policy clause in DATE the fact that the court of the ORG of origin refused to allow that person to have his defence presented unless he appeared in person ” .", "Following that judgment ORG dismissed the application by the victim ’s father of DATE for an order to enforce the civil judgment delivered by ORG on DATE .", "On DATE the applicant was arrested in GPE and detained pursuant to an order of the judge of ORG ( ORG ) pending the hearing of a request for his extradition . By an order of DATE the judge concerned dismissed a bail application by the applicant , despite his offer of a surety .", "However , on DATE ORG ( GPE ) quashed that order and ordered the applicant ’s immediate release . It considered that the judgment of ORG of CARDINAL DATE ( see paragraph CARDINAL above ) , against which there was no right of appeal under NORP law , raised a relative estoppel per rem judicatam , since the investigation could only be restarted in GPE if new evidence came to light . Once the courts in the state in which the offence had been committed had decided not to prosecute the applicant and had taken a final decision in that regard , he could not be detained for the purposes of extradition . Lastly , ORG held that LAW implementing the Schengen Agreement ( PERSON ) , which incorporates the non bis in idem principle , precluded the applicant ’s being retried in GPE in respect of the matters for which a final discharge order had been made in his favour in GPE .", "Article CARDINAL of the Code of Criminal Procedure lays down that if the offence charged is classified by statute as a serious crime ( crime ) , the indictment division will commit the accused for trial by the assize court .", "There is an assize court in GPE and in each of the NORP départements . The court is composed of professional judges ( the president and CARDINAL wing members ) and a CARDINAL - person lay jury whose members are drawn by lot from a panel of CARDINAL jurors and CARDINAL substitute jurors chosen DATE by lot for jury service during the CARDINAL ordinary assize sessions held in the département .", "The inquiry into the facts of a serious criminal case ( affaire criminelle ) must be conducted orally at the trial . At the end of the hearing , the court retires to decide on its verdict and sentence . LAW provides that the court must answer each of the questions contained in the operative provisions of the committal order by either “ yes ” or “ no ” and that each question must be put in the following way : “ Is the accused guilty of having committed such an offence ? ” . The votes of a majority comprising CARDINAL jurors are required for the accused to be convicted of the offence .", "As regards the accused ’s presence at the trial , LAW lays down that the committal order , which is valid only if it contains a statement and the legal classification of the alleged offences , shall be accompanied by a warrant for the accused ’s arrest , specifying his or her identity . LAW provides that an accused who is on bail must surrender to custody at the latest on DATE the hearing in the assize court and that the arrest warrant shall be executed if , after being duly summonsed and without due cause , he or she fails to attend on DATE for questioning by the president of the assize court . Article CARDINAL provides for the accused to be tried in absentia if he or she can not be apprehended and does not attend the trial ( see paragraphs CARDINAL below ) .", "As soon as the committal order has become final and the accused , after being detained , has been transferred to the prison in the locality where the assize court will sit , the president of the assize court must , in accordance with LAW , establish the accused ’s identity and ensure that he or she has been duly served with the committal order . LAW also requires the president to invite the accused to choose a lawyer to assist with his or her defence ; if the accused fails to do so , the president must assign counsel to represent him or her . This is because LAW makes the accused ’s representation at the trial mandatory and provides that if no counsel appears on behalf of the accused , the president must on his or her own initiative assign the accused counsel . LAW lays down that if an accused refuses to appear at the trial after being summonsed to do so by a bailiff the president may order that he or she be brought before the court by force . The president may also order that the hearing shall proceed notwithstanding the accused ’s absence .", "As regards the procedure for trial in absentia , the main provisions of LAW are as follows :", "“ If , after the committal order has been made by the indictment division , it has not proved possible to apprehend the accused or he or she has failed to report within DATE after the service of notice at his or her home to do so or the accused has absconded after reporting or being apprehended , the president of the assize court or , in his absence , the president of the court in the locality where the assize court will sit , or the judge replacing him or her , shall issue an order requiring the accused to report within a further period of DATE , failing which the accused shall be declared an outlaw , the exercise of his or her rights as a citizen shall be suspended , his or her assets shall be sequestered for the duration of the contempt , he or she shall not be entitled to take part in any court proceedings during that period , the criminal proceedings shall continue and any person knowing where the accused is to be found shall be under a duty to report that information . The order shall also contain particulars of the serious crime ( crime ) and of the arrest warrant . ”", "“ Within DATE that order shall be published in CARDINAL of the newspapers in the département and displayed on the door to the accused ’s home , the door to the town hall in the district where the accused lives and in the courtroom of the assize court . ORG shall send an office copy of the order to the director of the ORG lands department in the locality where the accused who is in contempt resides . ”", "“ After DATE the court shall rule on the contempt issue . ”", "“ No lawyer ( avocat or avoué ) may attend on behalf of an accused who is in contempt . However , if it is totally impossible for the accused to comply with the injunction contained in the order made pursuant to LAW , his or her close relatives or friends may explain the reason for his or her absence . ”", "“ If the court finds that due cause has been shown , it shall order a stay of the accused ’s trial and , if necessary , of the order for the sequestration of his or her assets for a period commensurate with the nature of the cause shown and the distance to be travelled . ”", "“ Except in those circumstances , the order committing the accused for trial before the assize court , the affidavit of service of the order requiring the person in contempt to report and the affidavits confirming that that order has been published and displayed shall be read out . After that has been done and after it has heard the submissions of ORG the court shall make an order for trial in absentia . If any of the formalities prescribed by Articles CARDINAL and CARDINAL have been omitted , the court shall declare the contempt procedure void and order it to be restarted from the stage where the first unlawful act occurred . Otherwise , the court shall deliver its verdict on the accusation without the assistance of the jurors and without being entitled to take into account any circumstances mitigating the guilt of the person in contempt in the event of a conviction . The court shall then decide the civil parties’ claims . ”", "“ If the person in contempt is convicted , his or her assets shall , if no confiscation order has been made , remain sequestered and a sequestration account shall be delivered to the person entitled to receive it once the conviction has become irrevocable as a result of the expiry of the limitation period for purging the contempt . ”", "“ Once all the publication procedures prescribed by [ LAW ] have been carried out , the convicted person shall be subject to all the statutory disabilities . ”", "“ Persons in contempt shall not be entitled to appeal on points of law . ”", "Article CARDINAL , which concerns the procedure when the contempt is purged , provides as follows :", "“ If the person in contempt surrenders to custody or is arrested before the time allowed for enforcing the sentence has expired , the judgment and the procedural steps taken after the order requiring the accused to report shall be automatically null and void and the proceedings will continue under the ordinary procedure ... ”", "Under the case - law , if a person convicted in absentia dies during the period allowed for the enforcement of the sentence , the conviction becomes irrevocable ( Court of Cassation , Criminal Division , DATE , PERSON , p. CARDINAL ) .", "Resolution ( CARDINAL ) CARDINAL of ORG on the criteria governing proceedings held in the absence of the accused also contains a number of basic rules , including the following :", "“ CARDINAL . No one may be tried without having first been effectively served with a summons in time to enable him to appear and to prepare his defence , unless it is established that he has deliberately sought to evade justice ...", "...", "The accused must not be tried in his absence , if it is possible and desirable to transfer the proceedings to another state or to apply for extradition .", "Where the accused is tried in his absence , evidence must be taken in the usual manner and the defence must have the right to intervene ...", "...", "Any person tried in his absence must be able to appeal against the judgement by whatever means of recourse would have been open to him , had he been present . ”" ]

[ "6" ]

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

[ "6-3-c" ]

[]

[]

[]

[ "The applicant was born in DATE and lives in the town of GPE , GPE .", "On DATE the ORG regional police stopped a car . During an inspection of the car , the police discovered a large quantity of aviation fuel . As the driver was unable to produce a certificate for the fuel he was transporting , the police ( officer S ) seized QUANTITY of fuel . The police entrusted it for safe keeping to a Belogorsk technical college and later to military unit no . DATE .", "As the fuel allegedly belonged to a private company ORG ( the “ company ” ) , officer S required the company director , ORG , to produce a document confirming that the fuel had been acquired lawfully . Mr P submitted an invoice dated DATE . Criminal proceedings were , however , instituted against Mr P on suspicion of forgery of this invoice . The NORP town prosecutor subsequently discontinued the proceedings on the ground that only the forgery of official documents was punishable under LAW . No decision was taken regarding the fate of the fuel .", "As can be seen from the domestic ORG findings ( see paragraph CARDINAL below ) , in the meantime , officer S decided not to institute any criminal proceedings in relation to the seized fuel . However , on DATE the PERSON deputy prosecutor set aside this decision and ordered an additional inquiry . There is no indication that this inquiry led to any prosecution or that any decision was taken in relation to the seized fuel .", "The company thus attempted to regain possession of its fuel . By a letter of CARDINAL DATE the PERSON deputy prosecutor informed the company that the fuel had not been attached to the criminal case file against Mr P as evidence and thus no decision had to be taken . He invited Mr P to collect the fuel through the police department . On an unspecified date , however , the company learnt from the LOC police department that the fuel had been stolen when it had been stored in the military unit .", "Meanwhile , the national authorities endeavoured to identify the officials responsible for the loss of the fuel . Criminal proceedings were instituted against officer S for abuse of power , as well as against the commander of the military unit and officer PERSON , who had allegedly misappropriated the fuel in the military unit . On DATE the Belogorsk town military prosecutor discontinued the proceedings against officer GPE and the head of the military unit because there was no indication of a criminal offence . On DATE the proceedings against officer S were discontinued because his participation in the disappearance of the fuel had not been proven .", "It does not appear that any criminal or other investigation continued thereafter in relation to the seized but missing fuel . No further claim was lodged in respect of it by the company or any other person or legal entity . Nor does it appear that the company made any attempts to obtain compensation after CARDINAL DATE ( cf . paragraph CARDINAL above ) . Instead , the company chose to assign the related claims to the applicant ( see below ) .", "On DATE the company transferred title to the seized fuel to the applicant . On DATE the parties amended the assignment agreement , indicating that the assignment included a claim in respect of any damage or loss caused by the authorities on account of the seizure of the fuel , as well as a claim for compensation in respect of unjustified enrichment on the same account and a claim for return of the fuel . The amended agreement also stated that the signing of that agreement “ annulled the company ’s debt of MONEY under a contract dated DATE ” .", "NORP The company informed the regional police department of the transfer of title . Since DATE the applicant has unsuccessfully requested the police department to return the fuel .", "In DATE the applicant sued the ORG , claiming compensation for the damage incurred as a result of the seizure and loss of the fuel . ORG of the LOC designated ORG as the proper respondent , with the applicant ’s consent . The court also gave the regional police department , the military unit and the company leave to intervene as third parties in the proceedings .", "By judgment of DATE ORG of GPE dismissed the applicant ’s action . The court held as follows :", "“ Under an assignment agreement of DATE the ORG company transferred all its rights to the fuel to [ the applicant] ... The assignment did not contravene Articles CARDINAL , CARDINAL and CARDINAL of ORG ... The fuel had been seized in relation to the accusation of forgery against Mr P ...", "[ T]he criminal prosecution against officer PERSON was discontinued ... The fuel was misappropriated by officer PERSON , against whom proceedings were discontinued on DATE ...", "[ T]he responsibility of an officer of ORG for unlawful seizure of the company ’s fuel must be established by a final judgment in a criminal case . The commercial court , under LAW , does not have the right to assess the lawfulness or unlawfulness of the actions ( failure to act ) of the investigating authorities and the prosecutor ’s office .", "The plaintiff did not submit any evidence showing that the seizure of the fuel by the officer of the ORG regional police department had been declared unlawful by a court and that [ the officer ] was responsible for the loss of the fuel .", "The action must be dismissed because there was no fault on the part of the person who allegedly caused the damage . ”", "The applicant appealed contending that the absence of a criminal conviction in respect of the officer had been irrelevant and that the respondent and the military unit had entered into a contract for storage of the fuel seized from the company . On DATE ORG of the Amur Region upheld the judgment of DATE . The court stated inter alia as follows :", "“ Officer PERSON acted lawfully when he inspected and seized the fuel ... Having verified whether the fuel had been lawfully acquired , officer S decided not to bring criminal proceedings ; on DATE the PERSON deputy prosecutor set aside this decision and ordered an additional inquiry ...", "Officer PERSON ’s failure to observe the procedure for inspection and transfer of the fuel for safe - keeping purposes has no direct causal link with the loss of the fuel ... ”", "Lastly , the appeal court made the following observations in relation to the military unit :", "“ Military unit no . DATE received the seized fuel for storage ... in accordance with LAW . Under LAW of GPE the military unit became civilly liable vis - à - vis the plaintiff for the safe keeping of the fuel . Under LAW of GPE , in the event of the loss of the fuel [ the military unit ] had to compensate the plaintiff for the resulting damage , unless otherwise provided by the law . ”", "The appeal judgment became final on DATE .", "On DATE ORG of ORG , sitting as a cassation - instance court , upheld the judgments of DATE and DATE . The court noted that the seizure of the fuel had been due to the absence , at the time , of any document confirming the company ’s title to it . The court held that the plaintiff had not proved that the investigator had been responsible for the damage caused .", "In the meantime , on DATE the applicant brought proceedings in the NORP ORG of the Amur Region against , inter alia , the military unit . He claimed that the authorities’ failure to return the fuel or to pay compensation be declared unlawful .", "By a judgment of CARDINAL DATE ORG rejected the applicant ’s claim . The court held that the fuel seizure had been carried out by officer S before any criminal proceedings had been initiated because of the need to conduct urgent investigative measures , namely a crime - scene inspection , in compliance with LAW ( see paragraph CARDINAL below ) . ORG also held as follows :", "“ As established in the judgment of the commercial court , during the seizure of the fuel the OPIUMIK company had not supplied any document to confirm the lawfulness of its acquisition . Later PERSON P submitted a forged invoice , which gave rise to criminal proceedings against him . An agreement dated DATE between the ORG company and a Mr G for the purchase of QUANTITY of fuel was produced before this court . It can not be accepted as a proof of the lawfulness of the fuel acquisition because the content of that agreement does not correspond to the materials in the criminal case which had been discontinued . Nor does it correspond to Mr P ’s deposition in the criminal proceedings , to the invoice or the expert report no . DATE which stated that the handwritten inscriptions in invoice no . CARDINAL of CARDINAL DATE had been done by PERSON rejects as unfounded Mr P ’s allegation that the documents in the criminal file and his deposition had been obtained under duress . Besides , the ORG considers that Mr P ’s and [ the applicant ’s ] arguments are intended to challenge the circumstances already determined by the final judgment of the commercial court , in particular as regards the lawfulness of the fuel acquisition by the company ... The ORG concludes that no evidence has been adduced to confirm [ it ] . The ORG does not accept [ the applicant ’s ] argument that the commercial court had confirmed the lawfulness of the fuel acquisition ; such matter had not been contested before the commercial court ...", "The grounds for compensation in respect of damage caused by the investigating authorities , including a claim for restitution of the fuel , are regulated by Articles CARDINAL and CARDINAL of LAW . Those grounds were also examined by the commercial courts and can not be subject to a re - examination in the present case . No legal relationship ( обязательственные отношения ) was established between [ the applicant ] on the one hand and the military unit , ORG or ORG on the other . Hence , his claims ... should be rejected . ”", "Lastly , the court found that the applicant had missed the statutory time - limit under LAW for bringing the matter before the courts of general jurisdiction .", "On DATE the ORG upheld the judgment . The court considered that the commercial court ’s judgment of DATE had dismissed the applicant ’s claims , inter alia , due to his failure to produce evidence confirming the lawfulness of the fuel acquisition . Neither was the civil court provided with any proof that the company had had title to the fuel .", "A commercial court issued a private company with an enforcement order for a sum of money against a ORG - owned enterprise . The company did not submit the writ within the statutory time - limit and bailiffs refused to enforce the judgment . The company assigned the claim to the applicant , who then requested the commercial court to designate him as creditor in respect of the above judicial award and to restore the time - limit for lodging the enforcement order . In DATE the commercial court rejected both requests . The applicant did not appeal .", "NORP The applicant also requested a court of general jurisdiction to designate him as creditor in respect of the assigned award and to award him compensation for the damage sustained . On DATE ORG , at final instance , disallowed the first claim because it had already been determined on DATE by the final decision of the commercial court . On DATE ORG , at final instance , dismissed the claim for damages on the ground that the applicant ’s title had never been confirmed by a court .", "The Civil Code of GPE , in force from DATE , provided as follows :", "“ Damage caused to an individual or a legal entity as a result of the unlawful actions ( failure to act ) of ORG agencies , agencies of local self - government or officials of these agencies , including as a result of the issuance of an act of a ORG agency or agency of local self - government which is contrary to a law or any other legal act , shall be subject to compensation . The damage shall be compensated for at the expense , respectively , of the ORG of GPE , the treasury of the region of GPE , or the treasury of the municipal authority . ”", "“ CARDINAL . Damage caused to an individual as a result of his or her wrongful conviction or unlawful criminal prosecution , or the unlawful application , as a preventive measure , of remand in custody or of a written undertaking not to leave a specified place , or the unlawful imposition of an administrative penalty in the form of arrest or corrective labour , shall be compensated for in full at the expense of the ORG of GPE and in certain cases , stipulated by law , at the expense of the treasury of the subject of GPE or of the municipal authority , irrespective of any fault by the officials of the agencies of inquiry or preliminary investigation , prosecutor ’s offices or courts , in accordance with the procedure established by law .", "Damage caused to an individual or a legal entity as a result of the unlawful activity of agencies of inquiry or preliminary investigation or prosecutor ’s offices , which has not entailed the consequences specified in paragraph CARDINAL of this Article , shall be compensated for on the grounds and according to the procedure provided for by LAW ... ”", "Article CARDINAL of the Code required the person or entity making an assignment to supply the new creditor with the documents certifying the assignor ’s claims . On DATE ORG of GPE issued an information note summarising the existing case - law on various aspects of the interpretation and application of the provisions of LAW on the assignment of claims and liabilities . In particular , it noted that the invalidity or invalidation of the claim assigned did not imply the invalidity of the assignment agreement . At the same time , it noted that the former gave the assignee the right to sue the assignor under LAW . Nor did LAW prevent the assignment of a future claim or one that was still non - existent when an assignment agreement was signed . ORG also noted that the assignor ’s failure to provide the assignee with documents certifying the former ’s entitlement or claim did not mean that the entitlement or claim had not been conferred on the assignee .", "Under LAW , an obligation to keep or store items arises under a contract ( LAW ) or if provided for by law ( LAW ) .", "The RSFSR Code of Criminal Procedure of DATE , in force at the material time , provided as follows :", "“ ... Material exhibits must be stored in a criminal case . If items of evidence , owing to their size or for any other reason , can not be stored in the criminal case file , their picture must be taken ; if possible , [ they ] must be sealed and stored in a place specified by the investigator , prosecutor , court ... ”", "“ Material exhibits shall be stored until the trial judgment becomes final or until expiry of the time - limit for lodging an appeal against a decision by which proceedings are discontinued ...", "Material exhibits which can be damaged easily and whose return to their owner is impossible should be given to appropriate entities for use in accordance with [ the GPE ] purpose . If necessary , items of the same type and quality shall be returned to the owner as compensation , or the owner shall be paid a sum equivalent to their value . ”", "Article CARDINAL of the Code provides that an investigator may inspect the crime scene or other locations , LOC or items for the purpose of detecting physical evidence of the crime or clarifying the circumstances . In urgent situations , the inspection may be carried out before criminal proceedings are instituted . In such situations , the proceedings should be instituted immediately after the inspection ." ]

[]

[]

[]

[]

[]

[]

[ "Thirteen of the applicants live in the municipality of PERSON , in GPE ( GPE ) . The other CARDINAL work there .", "From DATE to DATE a state of emergency ( stato di emergenza ) was in place in the GPE region , by decision of the then Prime Minister , because of serious problems of solid urban waste disposal .", "From DATE to CARDINAL DATE the management of the state of emergency was entrusted to “ deputy commissioners ” appointed by the Prime Minister and assisted by assistant commissioners . CARDINAL high officials – including CARDINAL presidents of the region of GPE and the head of the civil emergency planning department of ORG – were appointed deputy commissioners .", "From CARDINAL DATE to DATE the management of the state of emergency was entrusted to an under - secretariat in ORG under the head of the civil emergency planning department .", "Regional Law no . CARDINAL of DATE ( “ PERSON no . CARDINAL/CARDINAL ” ) laid down guidelines for the adoption of a waste disposal plan in GPE which was to treat urban solid waste and recyclable materials and halve the number and capacity of landfill sites – with the help of compacting and sorting techniques – DATE .", "On DATE the President of the Region , having been appointed deputy commissioner , drew up a regional waste disposal plan . Among other things , it provided for the construction of CARDINAL incinerators – CARDINAL of which would be built on land in the municipalities of GPE , GPE , PERSON and ORG ( DATE of these were to serve the municipalities where the applicants lived ) , and the fifth on a site to be determined at DATE and also CARDINAL main landfill sites and CARDINAL secondary sites .", "On DATE the President of the Region , acting as deputy commissioner , issued a call for tenders for a DATE concession to operate the waste collection and disposal service in the province of GPE . According to the specifications , the successful bidder would be required to ensure the proper reception of the collected waste , its sorting , conversion into refuse - derived fuel ( combustibile derivato da rifiuti – “ ORG ” ) and incineration . To that end , it was to construct and manage CARDINAL waste sorting and ORG production facilities and set up an electric power plant fuelled by ORG , by DATE .", "When the tendering process ended on DATE , the concession was awarded to a consortium of CARDINAL companies : ORG ( main contractor ) , ORG , ORG , ORG DATE GmbH and ORG ( subcontractors ) .", "Under the terms of a service concession agreement signed on DATE , the CARDINAL successful companies undertook to build CARDINAL ORG production centres in GPE and NORP in DATE , starting on CARDINAL and DATE respectively , and another in PERSON in DATE , starting from DATE . The ORG - fuelled power plant to be built in GPE was to be built in DATE , starting from a date to be determined later .", "In the meantime , on DATE the deputy commissioner had issued a call for tenders for the waste disposal service concession in GPE . The concession was awarded to ORG a consortium of companies formed specially for the purpose . On an unspecified date they formed a company called ORG", "Under the concession agreement signed on DATE , ORG was to build and manage CARDINAL ORG production centres and CARDINAL electric power plants fuelled by ORG . It was also required to ensure the proper reception , sorting and treatment of the waste collected in the region and transform PERCENT of it into ORG and PERCENT into compost , and produce PERCENT of non - recyclable waste and PERCENT of ferrous waste .", "In DATE the closure of the NORP landfill site resulted in the temporary suspension of waste disposal services in the province of GPE . To help control the situation the mayors of the other municipalities in the province authorised the storage of the waste in their respective landfill sites on a temporary basis , under LAW no . CARDINAL of DATE ...", "From DATE to DATE CARDINAL ORG production centres were built , in GPE , NORP , GPE , ORG , PERSON , GPE and GPE .", "On DATE the urban waste collection and transport service of the municipality of PERSON was entrusted to a consortium of CARDINAL companies : ORG and ORG . On DATE the management of the service was handed over to ORG , a publicly - owned company .", "NORP In DATE ORG opened a criminal investigation ( ORG no . ORG ) into the management of the waste disposal service in GPE since the signature of the concession contracts on DATE and CARDINAL DATE .", "On DATE the public prosecutor ’s office requested the committal for trial of the administrators and certain employees of ORG , ORG , ORG , ORG and ORG ( “ the companies ” ) , as well as the deputy commissioner in post from DATE and several officials from his office , on charges of fraud , failure to perform public contracts , deception , interruption of a public service or utility , abuse of office , misrepresentation of the facts in the performance of public duties and conducting unauthorised waste management operations , committed DATE .", "The members of the companies concerned were accused , inter alia , of having , with the complicity of the deputy commissioner and of officials from his office , failed in their contractual duty to receive and process the region ’s waste . The companies themselves were accused of having delayed and in some cases interrupted the regular reception of the waste collected in the ORG production centres , causing refuse to pile up in the streets and the temporary storage sites provided by the mayors or the deputy commissioner .", "NORP The public prosecutor ’s office also accused the companies of having ( CARDINAL ) produced ORG and compost by means not provided for in their contracts ; ( CARDINAL ) failed to carry out the requisite ORG energy recovery operations pending the construction of the ORG power station ; ( CARDINAL ) subcontracted the transportation of the processed waste produced by the ORG production centres , in breach of the terms of the concession contract ; and ( CARDINAL ) stocked pollutants from the production of ORG on illegal sites with no effort to protect the environment .", "NORP The public officials concerned by the committal request were accused of having falsely attested that the companies in question had complied with the laws and contractual provisions governing waste disposal , authorised the opening of non - regulation waste disposal sites , the temporary storage of the ORG pending the opening of the power stations , and the dumping of pollutants produced by ORG production plants , and authorised derogations from the contractual specifications governing ORG production .", "On DATE the preliminary investigation judge ordered the accused to be committed for trial and scheduled the hearing before ORG to be held on DATE .", "Legislative Decree no . CARDINAL of CARDINAL DATE , which subsequently became LAW no . CARDINAL of DATE , provided for the termination of the contracts governing waste disposal in GPE signed by the deputy commissioner in DATE , and for the urgent organisation of a new call for tenders . In order to guarantee continuity of service , the companies already under contract were required to continue their activities until the new call for tenders was over , but only until DATE .", "An initial call for tenders , issued on DATE by the deputy commissioner then in post , failed for lack of sufficient valid tenders .", "On DATE the deputy commissioner issued a new call for tenders for a DATE concession .", "Legislative Decree no . CARDINAL of DATE , which subsequently became PERSON no . CARDINAL of DATE , appointed the head of the civil emergency planning department to the post of deputy commissioner in charge of the waste disposal crisis in GPE . When the second call for tenders was annulled the deputy commissioner was instructed to sign new contractors to handle waste disposal .", "On DATE the regional authorities passed Law no . CARDINAL , providing for the creation of a regional division of the waste disposal scheme , a regional waste disposal observatory , a fully comprehensive regional waste management plan , a regional plan for special waste management , including dangerous waste , and a regional plan to clean up polluted sites .", "On DATE the ORG of GPE was appointed deputy commissioner in charge of the waste disposal crisis .", "Legislative Decree no . CARDINAL of CARDINAL DATE , which subsequently became Law no . CARDINAL of CARDINAL DATE , authorised the creation , in the municipalities of PERSON ( GPE ) , GPE ( Avellino ) , PERSON ( GPE ) and Sant’Arcangelo PERSON ( ORG ) , of landfill sites with a special derogation from the statutory environmental protection and health and safety standards , and prohibited the creation of new waste disposal sites , in particular in the municipalities of GPE in GPE , GPE , ORG ) , at least until the region had been cleaned up . The law made the deputy commissioner responsible for rapidly identifying new companies to collect and dispose of waste .", "On DATE a third call for tenders was issued . It failed because not enough tenders were received .", "On DATE the deputy commissioner drew up a regional plan for urban waste in GPE , in keeping with section CARDINAL of Legislative Decree no . CARDINAL . It comprised a crisis resolution strategy based inter alia on the development of selective waste collection , transparency in the life cycle of waste , the rationalisation and upgrading of the existing structures – in particular CARDINAL of the ORG production centres DATE , the creation of structures for producing compost , and the use of new technologies and methods for the biological treatment of waste .", "On DATE the publicly - owned company ORG was put in charge of collecting and transporting organic waste in the municipality of PERSON .", "A new crisis situation developed at DATE . QUANTITY of waste were left to pile up for DATE in the streets of GPE and other towns in the province , including those where the applicants lived ( see list appended ) .", "On DATE , by order no . CARDINAL/CARDINAL , the Prime Minister appointed a senior police officer deputy commissioner . His task was to open the landfill sites provided for in Legislative Decree no . CARDINAL and to locate new waste storage and disposal sites , with the assistance of the police and the army . The order also invited the municipalities in the region to prepare plans for the selective collection of waste .", "Legislative Decree no . CARDINAL of DATE , which subsequently became PERSON no . CARDINAL of DATE ( on “ Extraordinary measures in response to the waste disposal crisis in GPE and subsequent civil protection measures ” ) – appointed the head of the civil emergency planning department to the post of undersecretary of ORG to ORG and made him responsible for managing the crisis until DATE , in place of the deputy commissioner . The undersecretary was authorised to open CARDINAL new landfill sites in the region , including CARDINAL in ORG and ORG , with a special derogation from the statutory environmental protection and health and safety standards .", "Legislative Decree no . CARDINAL/CARDINAL also authorised the treatment of certain categories of waste at the ORG - fuelled power plant in GPE DATE against the opinion submitted on DATE by the environmental impact assessment committee DATE and the construction of ORG - fuelled power plants in GPE ( GPE ) and in GPE and GPE .", "The Legislative Decree handed over ownership of the waste sorting and treatment sites to the provinces of GPE but provisionally left it to the army to manage the sites .", "Paragraphs CARDINAL and CARDINAL of section QUANTITY of the decree classified the sites , the zones , the plants and the headquarters of the waste management services “ strategic national interest zones ” placed under the supervision of the police and the army . The armed forces were asked to help organise the implantation of the sites and the collection and transport of waste .", "Section CARDINAL , paragraph CARDINAL , classified preventing , obstructing or hindering waste disposal as the punishable offence of interruption of a public service .", "Lastly , LAW instructed the undersecretary of ORG to ensure that the municipalities complied with the objectives for the selective collection of urban waste laid down in DATE regional plan for urban waste in GPE .", "Legislative Decree no . CARDINAL of DATE , which subsequently became PERSON no . CARDINAL of DATE ( on “ Extraordinary measures in response to the waste disposal crisis in GPE and urgent environmental protection provisions ” ) provided for the possibility , in the territories affected by the state of emergency regarding waste disposal , of mayors , provincial presidents , municipal or provincial councillors and municipal or provincial commission members being dismissed by decree of the Minister of the Interior in the event of serious neglect , inter alia , in their duty to plan and organise the collection , transport , processing , elimination and selective sorting of waste . It also provided , in the same territories , for special criminal sanctions to punish , inter alia , ( CARDINAL ) the illegal dumping or burning of waste ; ( CARDINAL ) the unauthorised collection , transport , processing , elimination and sale of waste ; ( CARDINAL ) the creation and management of illegal landfill sites and the mixing of dangerous and non - dangerous waste .", "According to the information submitted by the Government , which the applicants did not dispute , CARDINAL landfill sites had already been opened in LOC and Sant’Arcangelo PERSON at DATE , others were on the point of opening in GPE , ORG and PERSON , and preliminary work was under way with a view to opening a site at NORP ( PERSON ) . The finishing touches were being put to the ORG - fuelled power plant in GPE , a call for tenders for the construction of an ORG - fuelled power plant in GPE had been issued and a site for an ORG - fuelled power plant in the province of GPE had been chosen . From DATE to DATE QUANTITY of waste were removed from the streets of the region ’s towns and QUANTITY of ORG were stored . CARDINAL municipalities introduced the selective collection of waste in compliance with order no . CARDINAL/CARDINAL .", "On DATE , pursuant to order no . CARDINAL issued by the Prime Minister and following the approval of a selective waste collection programme , a call for tenders for the waste collection service in the municipality of PERSON was won by L’Igiene ORG .", "On DATE , by order no . CARDINAL , the Prime Minister urged the provinces of the region to set up semi - public companies to run the waste storage sites , landfills and waste disposal , processing and recycling plants .", "In DATE , on an unspecified date , ORG opened a criminal investigation ( ORG no . ORG ) into the waste disposal operations organised on a temporary basis by ORG and ORG during the transition period following the termination of the concession contracts .", "DATE . On DATE , at the request of the prosecutor ’s office , the preliminary investigation judge at ORG placed compulsory residence orders on the managing directors of ORG and ORG , several of the ORG executives and employees , the people in charge of the waste sorting centres run by ORG , the manager of the LOC landfill , representatives of the FS Cargo S.p . A. transport company and several officials from the deputy commissioner ’s office .", "The accused were charged , inter alia , with conspiring in the illegal trafficking of waste , forgery of official documents , deception , misrepresentation of the facts in the performance of public duties , and organised trafficking of waste .", "On an unspecified date in DATE ORG opened a criminal investigation ( ORG no . ORG , nicknamed “ Rompiballe ” ) into the waste disposal operations carried out after DATE . According to the information supplied by the Government , which the applicants did not dispute , the investigation , which was still pending on CARDINAL DATE , concerned a number of offences against the environment and the public authorities and targeted several employees of ORG and other companies in the consortium , as well as officials from the deputy commissioner ’s office .", "On DATE the Commission of ORG ( “ the Commission ” ) brought an action for non - compliance against GPE before ORG under LAW establishing ORG ( “ TEC ” ) ( case no . C-CARDINAL/CARDINAL ) . Criticising the existence of a large number of illegal and unsupervised landfill sites in GPE , the Commission alleged that the NORP authorities had failed to honour their obligations under LAW , DATE and DATE of Directive CARDINAL/CARDINAL/EEC on waste , LAW CARDINAL/CARDINAL/EEC on hazardous waste and LAW , letters ( a ) to ( c ) , of Directive CARDINAL/CARDINAL/EC on the landfill of waste .", "In its judgment of CARDINAL DATE ORG noted “ the general non - compliance of the tips [ with the ] provisions ” , observing , inter alia , that ORG “ does not dispute the existence ... in GPE of CARDINAL illegal tips containing hazardous waste , which are therefore not subject to any control measures ” .", "It concluded that GPE had failed to fulfil its obligations under the provisions cited by ORG , because it had failed to adopt all the necessary measures to ensure that waste was recovered or disposed of without endangering human health and without using processes or methods which could harm the environment , and to prohibit the abandonment , dumping or uncontrolled disposal of waste .", "On DATE the Commission brought a new action for noncompliance against GPE under LAW ( case no . C-CARDINAL/CARDINAL ) .", "In a judgment of CARDINAL DATE ORG , while noting the measures taken by GPE in DATE to tackle the “ waste crisis ” , referred to the existence of a “ structural deficit in terms of the installations necessary for the disposal of the urban waste produced in GPE , as evidenced by the considerable quantities of waste which [ had ] accumulated along the public roads in the region ” .", "It held that GPE had “ failed to meet its obligation to establish an integrated and adequate network of disposal installations enabling it ... to [ ensure the ] disposal of its own waste and , in consequence , [ had ] failed to fulfil its obligations under LAW CARDINAL ” . According to ORG , that failure could not be justified by such circumstances as the opposition of the local population to waste disposal sites , the presence of criminal activity in the region or the non - performance of contractual obligations by the undertakings entrusted with the construction of certain waste disposal infrastructures . It explained that this last factor could not be considered force majeure , because “ the notion of force majeure GPE ] the non - performance of the act in question to be attributable to circumstances , beyond the control of the party claiming force majeure , which [ were ] abnormal and unforeseeable and the consequences of which could not have been avoided despite the exercise of all due diligence ” , and that a diligent authority should have taken the necessary precautions either to guard against the contractual non - performance in question or to ensure that , despite those shortcomings , actual construction of the infrastructures necessary for waste disposal would be completed on time . ORG also noted that “ GPE [ did ] not dispute that the waste littering the public roads totalled QUANTITY , adding to QUANTITY of waste awaiting treatment at municipal storage sites ” . Concerning the environmental hazard , ORG reiterated that the accumulation of waste , regard being had in particular to the limited capacity of each region or locality for waste reception , constituted a danger to the environment . It concluded that the accumulation of such large quantities of waste along public roads and in temporary storage areas had given rise to a “ risk to water , air or soil , and to plants or animals ” within the meaning of Article CARDINAL ) of Directive CARDINAL , had caused “ a nuisance through noise or odours ” within the meaning of Article CARDINAL ) , and was likely to affect “ adversely ... the countryside or places of special interest ” within the meaning of Article CARDINAL ) of that Directive . As to the danger to human health , ORG noted that “ that the worrying situation of accumulation of waste along the public roads [ had ] exposed the health of the local inhabitants to certain danger , in breach of Article CARDINAL ) of Directive CARDINAL ” .", "...", "DATE . Section CARDINAL of Legislative Decree no . CARDINAL of CARDINAL DATE empowers the administrative courts to determine disputes concerning waste disposal activities in general , including when they are carried out by public authorities or the like . The powers of the administrative courts extend to disputes over rights protected by LAW .", "In a claim for damages brought by a group of residents on CARDINAL DATE prior to the entry into force of LAW CARDINAL of Legislative Decree no . CARDINAL – against the city of GPE and the company responsible for waste disposal there , ORG noted that only the administrative court could examine the case and adopt any urgent interim measure within the meaning of section CARDINAL of Law no . CARDINAL of DATE ( instituting the regional administrative courts ) .", "By CARDINAL judgments delivered on DATE and DATE , ORG , sitting as a full court , held that the administrative court had jurisdiction to examine claims for compensation brought by the residents of a municipality against the authorities responsible for the collection , treatment and elimination of waste .", "DATE of Directive CARDINAL/CARDINAL/EEC of ORG , of DATE , on waste , as amended by ORG Directive CARDINAL/CARDINAL/EEC of DATE , reads as follows :", "“ Member GPE shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment , and in particular :", "— without risk to water , air , soil and plants and animals ,", "— without causing a nuisance through noise or odours ,", "— without adversely affecting the countryside or places of special interest .", "Member GPE shall also take the necessary measures to prohibit the abandonment , dumping or uncontrolled disposal of waste . ”", "The relevant provision of LAW CARDINAL/CARDINAL/EEC on hazardous waste , of CARDINAL DATE , reads as follows :", "“ CARDINAL . Member GPE shall take the necessary measures to require that on every site where tipping ( discharge ) of hazardous waste takes place the waste is recorded and identified .", "... ”", "Council Directive CARDINAL/CARDINAL/EC on the landfill of waste , of DATE , contains the following provisions :", "Member GPE shall take measures in order that landfills which have been granted a permit , or which are already in operation at the time of transposition of this Directive , may not continue to operate unless ... :", "( a ) with a period of DATE after the date laid down in Article CARDINAL ) [ that is , at the latest , by DATE ] , the operator of a landfill shall prepare and present to the competent authorities , for their approval , a conditioning plan for the site including the particulars listed in DATE and any corrective measures which the operator considers will be needed in order to comply with the requirements of this Directive ... ;", "( b ) following the presentation of the conditioning plan , the competent authorities shall take a definite decision on whether operations may continue on the basis of the said conditioning plan and this Directive . Member GPE shall take the necessary measures to close down as soon as possible ... sites which have not been granted ... a permit to continue to operate ;", "( c ) on the basis of the approved site - conditioning plan , the competent authority shall authorise the necessary work and shall lay down a transitional period for the completion of the plan . ... ”", "“ CARDINAL . Member GPE shall bring into force the laws , regulations and administrative provisions necessary to comply with this Directive not DATE after its entry into force [ that is , by DATE ] . They shall forthwith inform the Commission thereof .", "... ”", "The relevant provisions of Directive CARDINAL of ORG and of ORG on waste read as follows :", "“ CARDINAL . Member GPE shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment , and in particular :", "( a ) without risk to water , air or soil , or to plants or animals ;", "( b ) without causing a nuisance through noise or odours ;", "( c ) without adversely affecting the countryside or places of special interest .", "Member GPE shall take the necessary measures to prohibit the abandonment , dumping or uncontrolled disposal of waste .", "Member GPE shall take appropriate measures , in cooperation with other Member GPE where this is necessary or advisable , to establish an integrated and adequate network of disposal installations , taking account of the best available technology not involving excessive costs . The network must enable the ORG as a whole to become self - sufficient in waste disposal and the Member GPE to move towards that aim individually , taking into account geographical circumstances or the need for specialised installations for certain types of waste .", "The network referred to in paragraph CARDINAL must enable waste to be disposed of in CARDINAL of the nearest appropriate installations , by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health . ”", "By virtue of the precautionary principle enshrined in LAW establishing ORG , the lack of certainty regarding the available scientific and technical data can not justify GPE delaying the adoption of effective and proportionate measures to prevent a risk of serious and irreversible damage to the environment . The ORG ’s case - law has applied this principle mainly in cases concerning health , whereas the Treaty refers to the principle only in connection with the ORG ’s environmental policy . According to the case - law of ORG of ORG ( “ ECJ ” ) , “ where there is uncertainty as to the existence or extent of risks to human health , the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent ” ( ECJ , CARDINAL DATE , ORG , case C-CARDINAL/CARDINAL , ORG , and ECJ , CARDINAL DATE , ORG , C-CARDINAL/CARDINAL , ORG ) .", "..." ]

[ "8" ]

[ "8-1" ]

[]

[ "8" ]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "The applicant and his late wife PERSON , born in DATE , had lived together since DATE and married in DATE . DATE , PERSON had been suffering from total sensorimotor quadriplegia after falling in front of her doorstep . She was almost completely paralysed and needed artificial ventilation and constant care and assistance from nursing staff . She further suffered from spasms . According to the medical assessment , she had a life expectancy of DATE . She wished to end what was , in her view , an undignified life by committing suicide with the applicant ’s help . The couple contacted the NORP assisted - suicide organisation , GPE , for assistance .", "In DATE PERSON requested ORG ( NORP für NORP und Medizinprodukte – “ the ORG ” ) to grant her authorisation to obtain QUANTITY of pentobarbital of sodium , a lethal dose of medication that would enable her to commit suicide at her home in GPE .", "On DATE ORG refused to grant her that authorisation , relying on section CARDINAL ) ( CARDINAL ) of GPE ( Betäubungsmittelgesetz – see “ Relevant domestic law ” below ) . It found that her wish to commit suicide was diametrically opposed to the purpose of LAW , which was aimed at securing the necessary medical care for the individuals concerned . Authorisation could therefore only be granted for life - supporting or life - sustaining purposes and not for the purpose of helping a person to end his or her life .", "On DATE the applicant and his wife lodged an administrative appeal with ORG .", "NORP In DATE the applicant and his wife , who had to be transported lying on her back on a stretcher , travelled for TIME over a distance of QUANTITY from GPE to GPE in GPE . On DATE PERSON committed suicide there , assisted by GPE .", "On DATE ORG confirmed its earlier decision . In addition , it expressed doubts as to whether a ORG - approved right of an individual to commit suicide could be derived from DATE . In any event , LAW could not be interpreted as imposing an obligation on the ORG to facilitate the act of suicide with narcotic drugs by granting authorisation to acquire a lethal dose of medication . A right to commit suicide would be inconsistent with the higher - ranking principle enshrined in LAW of LAW ( see “ Relevant domestic law ” below ) , which laid down the “ comprehensive ” obligation of the ORG to protect life , inter alia by refusing to grant authorisation to obtain a lethal dose of a drug for the purpose of committing suicide .", "Finally , ORG “ informed ” the applicant that he had no standing to lodge an administrative appeal as he lacked the need for legal protection ( Rechtsschutzbedürfnis ) . In particular , the applicant could not improve his own position through an appeal , as his legal position had not been the subject of the administrative proceedings .", "On DATE the applicant lodged an action for a declaration that the decision of ORG had been unlawful ( PERSON ) and that it thus had a duty to grant his wife the requested authorisation .", "On DATE ORG ( Verwaltungsgericht ) declared the applicant ’s action inadmissible . It found that he lacked standing to lodge the action as he could not claim to be the victim of a violation of his own rights . ORG refusal to grant his wife authorisation to obtain a lethal dose of medication did not interfere with his right to protection of his marriage and family life as guaranteed by LAW ( Grundgesetz – see “ Relevant domestic law ” below ) . Any other interpretation would lead to the assumption that each infringement of the rights of CARDINAL spouse would automatically also be an infringement of the rights of the other spouse . That assumption would water down the separate legal personality of each spouse , which was clearly not the purpose of LAW . Furthermore , the contested decisions did not interfere with his own right to respect for family life under LAW , as they did not affect the way in which the applicant and his wife lived together .", "NORP Moreover , the applicant could not rely on his wife ’s rights , as the right to be granted authorisation to obtain the requested dose of drugs was of an eminently personal and non - transferable nature . Even assuming that there had been a violation of his late wife ’s human dignity by ORG refusal , according to ORG case - law ( see “ Relevant domestic law and practice ” below ) the refusal could not produce effects beyond her life as it did not contain elements of disparagement capable of impairing the applicant ’s wife ’s image in the eyes of posterity .", "Finally , the court held that in any event the refusal of ORG to grant the applicant ’s wife the requested authorisation had been lawful and in compliance with LAW . In particular , any interference with her right to respect for private life was necessary in a democratic society for the protection of health and life and thus also for the protection of the rights of others . Referring to the ORG ’s judgment in the case of Pretty ( see Pretty v. GPE , no . CARDINAL , § DATE , ECHR CARDINALIII ) , the court held that the domestic authorities had a wide margin of appreciation to assess the danger and risks of abuse . Therefore , the fact that the provisions of LAW permitted exceptions only for what was medically needed could not be considered disproportionate .", "On DATE the North - Rhine Westphalia Administrative Court of Appeal ( Oberverwaltungsgericht ) dismissed the applicant ’s request for leave to appeal . It found , in particular , that the right to protection of marriage and family life under LAW CARDINAL § CARDINAL of the Convention did not confer a right to have the spouses’ marriage terminated by the suicide of CARDINAL of them . Moreover , it considered that the decisions of ORG had not interfered with the applicant ’s right to respect for private life within the meaning of Article CARDINAL § CARDINAL of the Convention . Even if the right to die had existed , its very personal character would not allow third persons to infer from LAW a right to facilitate another person ’s suicide . Finally , the applicant could not rely on DATE as he had no arguable claim to be the victim of a violation of a right guaranteed under LAW .", "On DATE ORG ( Bundesverfassungsgericht , no . CARDINAL BvR CARDINAL/CARDINAL ) declared a constitutional complaint lodged by the applicant inadmissible as he could not rely on a posthumous right of his wife to human dignity . It held that the posthumous protection of human dignity extended only to violations of the general right to respect , which was intrinsic to all human beings , and of the moral , personal and social value which a person had acquired throughout his or her own life . However , such violations were not at stake in respect of the applicant ’s wife . Furthermore , the applicant was not entitled to lodge a constitutional complaint as legal successor to his deceased wife . In particular , it was not possible to lodge a constitutional complaint to assert another person ’s human dignity or other non - transferable rights . A legal successor could only introduce a constitutional complaint in cases , which primarily involved pecuniary claims and where the complaint was aimed at pursuing the successor ’s own interests .", "Article CARDINAL § CARDINAL of LAW provides that marriage and family enjoy the special protection of the ORG .", "Under LAW of LAW every person has the right to life and physical integrity .", "ORG has accepted the posthumous protection of human dignity in cases where the image of the deceased person had been impaired in the eyes of posterity by ostracism , defamation , mockery or other forms of disparagement ( see decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL ) .", "LAW governs the control of narcotic drugs . CARDINAL annexes to the LAW enumerate the substances , which are considered as drugs , including pentobarbital of sodium in GPE .", "According to section CARDINAL ( CARDINAL ) no . CARDINAL ( a ) of LAW it is permissible to obtain the substances listed in GPE if they are prescribed by a medical practitioner . In all other cases , section CARDINAL(CARDINAL)(CARDINAL ) of the LAW provides that the cultivation , manufacture , import , export , acquisition , trade and sale of drugs are subject to authorisation from ORG .", "In accordance with section CARDINAL ) of the LAW , no such authorisation can be granted if the nature and purpose of the proposed use of the drug contravenes the purposes of LAW , namely , to secure the necessary medical care of the population , to eliminate drug abuse and to prevent drug addiction .", "Doctors may only prescribe pentobarbital of sodium if the use thereof on or in the human body is justified ( section CARDINAL ( CARDINAL)(CARDINAL ) of LAW ) .", "Section CARDINAL of the Criminal Code reads as follows :", "“ ( CARDINAL ) If a person is induced to kill by the express and earnest request of the victim the penalty shall be imprisonment from DATE .", "( CARDINAL ) Attempts shall be punishable ”", "Committing suicide autonomously is exempt from punishment under NORP criminal law . It follows that the act of assisting an autonomous suicide does not fall within the ambit of section CARDINAL of LAW and is exempt from punishment . However , a person can be held criminally responsible under LAW for having provided a lethal drug to an individual wishing to end his or her life .", "According to the case - law of ORG ( compare judgment of DATE , CARDINAL StR DATE ) the discontinuation of a lifeprolonging treatment of a terminally ill patient with the patient ’s consent does not engage criminal responsibility . This applies irrespective of the fact that the interruption of the treatment has to be effected by actively stopping and switching off the medical device ( ORG , judgment of DATE , CARDINAL StR CARDINAL/CARDINAL ) .", "NORP The professional codes of conduct are drawn up by the medical associations under the supervision of the health authorities . The codes are largely similar to LAW for ORG , section CARDINAL of which provides as follows :", "“ ( CARDINAL ) Doctors may DATE prioritising the will of the patient – refrain from life - prolonging measures and limit their activities to the mitigation of symptoms only if postponement of an inevitable death would merely constitute an unacceptable prolongation of suffering for the dying person .", "( CARDINAL ) Doctors may not actively curtail the life of the dying person . They may not put their own interests , or the interests of third parties , above the well - being of the patient . ”", "Contraventions against LAW are sanctioned by disciplinary measures culminating in a withdrawal of the licence to practise medicine .", "In connection with the demand for doctor - assisted suicide , the CARDINALth German Medical Assembly of DATE resolved that doctors should provide assistance in and during the process of dying , but should not help patients to die , as the involvement of a doctor in suicide would contravene medical ethics .", "Recommendation no . DATE ( DATE ) of ORG , insofar as relevant , reads as follows :", "“ CARDINAL . The assembly therefore recommends that ORG encourage the member states of ORG to respect and protect the dignity of terminally ill and dying persons in all respects :", "a. by recognising and protecting a terminally ill or dying person ’s rights to comprehensive palliative care , while taking the necessary measures :", "( ... )", "b. by protecting the terminally ill or dying person ’s right to self - determination , while taking the necessary measures :", "( ... )", "iii . to ensure that no terminally ill or dying person is treated against his or her will while ensuring that he or she is neither influenced nor pressured by another person . Furthermore , safeguards are to be envisaged to ensure that their wishes are not formed under economic pressure ;", "iv . to ensure that a currently incapacitated terminally ill or dying person ’s advance directive or living will refusing special medical treatments is observed ...", "v. to ensure DATE notwithstanding the physician ’s ultimate responsibility – the expressed wishes of a terminally ill or dying person with regards to particular forms of treatment are taken into account , provided they do not violate human dignity ;", "vi . to ensure that in situations where an advance directive of living will does not exist , the patient ’s right to life is not infringed upon . A catalogue of treatments which under no conditions may be withheld or withdrawn is to be defined .", "c. by upholding the prohibition against intentionally taking the life of terminally ill or dying person ’s while :", "( i ) recognising that the right to life , especially with regard to a terminally ill or dying person , is guaranteed by the member states , in accordance with LAW which states that “ no one shall be deprived of his life intentionally ” ;", "( ii ) recognising that a terminally ill or dying person ’s wish to die never constitutes any legal claim to die at the hand of another person ;", "( iii ) recognising that a terminally ill or dying person ’s wish to die can not of itself constitute a legal justification to carry out actions intended to bring about death . ”", "Comparative research in respect of PERCENT ORG GPE shows that in CARDINAL countries ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the Former GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) any form of assistance to suicide is strictly prohibited and criminalised by law . In GPE and GPE , assistance to suicide is not a criminal offence ; however , NORP medical practitioners are not entitled to prescribe a drug in order to facilitate suicide . Conversely , CARDINAL member GPE ( GPE , GPE , the GPE and GPE ) allow medical practitioners to prescribe lethal drugs , subject to specific safeguards ( compare PERSON v. GPE , no . CARDINAL , § § DATE and DATE , DATE ) ." ]

[ "8" ]

[ "8-1" ]

[]

[]

[]

[]

[ "The application was lodged with the ORG by a mother , PERSON , on behalf of her CARDINAL children PERSON , PERSON , PERSON and PERSON . PERSON , born DATE , is a NORP national . Her CARDINAL children were born in DATE , DATE and DATE . The applicants currently live in GPE , GPE .", "In DATE , PERSON married PERSON , a NORP national and went to live with him in GPE with PERSON , her daughter by a first marriage . The children PERSON , PERSON and PERSON were born into her marriage to O.", "In DATE , PERSON and all QUANTITY children moved out of the family home and went to live in a women ’s refuge .", "On DATE , ORG obtained a court order granting him temporary custody of his CARDINAL children , who thereupon returned to him . O. and his parents cared for the children . PERSON saw them on a regular basis .", "On DATE , ORG , in proceedings before a single judge , granted PERSON sole custody of PERSON , PERSON and PERSON on a permanent basis . It granted ORG access commencing on CARDINAL DATE and continuing on alternating DATE thereafter , from DATE to CARDINAL:CARDINAL on DATE . For DATE , ORG declared that ORG was to have the children from TIME on DATE to TIME on DATE , while PERSON was to have them from DATE . In succeeding DATE , the access on DATE was to be alternated . The children were to pass CARDINAL of their GPE holidays with the custodial parent and the other CARDINAL with the access parent . Notwithstanding the DATE access provided , O. was to have access on Father ’s Day from TIME . PERSON was to have the same access time on DATE . During DATE , each parent was to have DATE of access incorporating and not in addition to the regular weekend access . O. was to have such other and further access as the parties would agree to .", "ORG ordered that the paternal grandparents be given access to the children during the father ’s access periods . In addition , they were to have access on DATE as agreed between themselves and PERSON .", "Given that the maternal grandparents lived in GPE , ORG ruled that PERSON should be at liberty , on DATE notice , to take the children to GPE for visits , not to exceed DATE in duration .", "It also ruled that PERSON , PERSON and PERSON should otherwise remain in GPE , except for day trips to GPE or other GPE of GPE , unless prior written agreement were obtained .", "ORG ordered PERSON to execute an irrevocable undertaking to submit to the jurisdiction of the courts of GPE and not to remove the children for periods beyond those provided for in the court order . It also ordered her to undertake in writing not to apply for NORP passports for them until they were of an age to make a personal decision on citizenship . PERSON was granted exclusive possession of the matrimonial home .", "In his reasoning , the single judge noted that PERSON seemed to be better capable of raising the children than O. , whom the judge portrayed as unreliable and whose credibility seemed to have been undermined by implausible and untrue allegations before the court . The judge was convinced that ORG would not be able to care properly for his children without the continued intervention of his parents . He stressed that the access rights granted to O. were minimum rights that could be enlarged following further discussion and negotiation between the parties .", "PERSON never executed the undertakings contained in the court decision .", "On DATE , PERSON and all QUANTITY children left GPE for a CARDINAL GPE stay in GPE after having obtained O. ’s consent . However , once DATE had elapsed , they did not return to GPE .", "On DATE , PERSON filed an action for divorce before ORG , sitting in family matters , and requested sole custody of PERSON , PERSON and PERSON .", "On DATE , ORG sentenced her to CARDINAL days’ imprisonment for acting in contempt of court . Revoking its decision of DATE , it granted NORP sole custody of his children .", "On DATE , ORG rejected O. ’s request to return PERSON , PERSON and PERSON to GPE under the auspices of LAW on the Civil Aspects of International Child Abduction ( hereafter LAW ) . It found that as PERSON had had sole custody of the children both at the time when they had left GPE , and at the time when she had refused to return , LAW had not been violated . ORG also observed that the applicability of LAW to situations where a parent ’s custody right was limited by special conditions was legally controversial . In any case , ORG had not been in possession of custody rights at the relevant time and had not complained of a violation of his rights to access .", "On DATE , ORG issued a “ certificate of wrongness ” wherein it found that the removal and subsequent retention of the children PERSON , PERSON and PERSON from GPE , without returning them after a DATE visit to GPE , was a wrongful removal and retention within the meaning of LAW .", "Following O. ’s appeal , appeals proceedings were initiated before ORG , in the course of which PERSON and PERSON were heard . ORG ordered the preparation of a psychological expert opinion in order to find out whether the children themselves were opposed to returning to GPE or whether their refusal was based on their mother ’s influence . The expert was also asked to assess whether the CARDINAL children had attained a degree of maturity that would allow them to realise the consequences of their decision .", "In the expert opinion dated DATE , the expert found that PERSON and PERSON ’s refusal to return to their father derived from the tensions between their parents . The main reason for their refusal to return lay in the negative experiences with their father which dated back to the time when they had been in contact with him . Although their hostile attitude towards their father was partially based on their mother ’s tales of past events , it was mostly a consequence of the children ’s own memories which made them fear their father . Regarding their degree of maturity , the expert found that both children were able to give reasons for their decision that corresponded to their age .", "On DATE , ORG revoked ORG decision and ordered PERSON to return PERSON , PERSON and PERSON to GPE by DATE . In the event that she should refuse to comply with this order , ORG authorised the court ’s bailiff to return the children to their father . The bailiff was authorised to use force if necessary in order to overcome LOC resistance , to search her apartment and to ensure the children ’s removal .", "In its decision , ORG endorsed ORG “ certificate of wrongness ” of DATE . Based on the expert opinion , it did not consider that returning the children to GPE would be contrary to their best interests . In particular , nothing suggested that there was “ a grave risk that returning them would expose them to physical or psychological harm or place them in an intolerable situation ” within the meaning of LAW . ORG noted that PERSON had not managed to establish that ORG had sexually harassed either PERSON or PERSON . Although it believed the children ’s allegations that he had often applied inappropriate methods when punishing them in the past , ORG did not consider that this meant that they would be in danger of suffering physical or psychological harm if they returned to GPE . PERSON allegations that he had often beaten her and the children with objects were considered unsubstantiated . ORG failed to comprehend why PERSON had not trusted the NORP authorities or courts to protect her and the children from her husband ’s violent actions .", "ORG also did not consider that PERSON and PERSON ’s refusal to return to their father could prevent them from going back to GPE . Based on the expert report , it found that with DATE they had not yet attained an age and degree of maturity at which it would be appropriate to take account of their views under LAW . According to ORG , nothing suggested that PERSON and PERSON were particularly mature for their age . Given the fact that they were greatly influenced by their mother and by the tensions between their parents , ORG did not attach much weight to the children ’s objections to being returned to GPE .", "It showed itself aware of the difficulties a removal back to GPE would occasion for the children . From a legal point of view , however , this alone could not suffice to prevent their return , as otherwise any parent wrongfully removing a child could , by delaying the child ’s return , prevent such a return from ever taking place .", "On DATE , ORG refused to entertain the complaint lodged by PERSON on behalf of PERSON , PERSON and PERSON .", "On DATE , following ORG ’s request , ORG issued a special order to execute the decision of DATE , under the condition that NORP request ORG to refrain from executing the sentence issued against PERSON for contempt of court . According to ORG , this was necessary to ensure that PERSON could accompany the children to GPE , as it considered a separation from their mother at this stage to be detrimental to their best interests . It obliged PERSON to submit propositions regarding a financially secure accommodation for PERSON and the children , as well as alimony payments for all of them . He was also held to submit financial securities for the payment of their plane tickets .", "In order to stop the imminent execution of the court decision of CARDINAL DATE , PERSON requested legal aid with a view to declaring the execution of this decision inadmissible .", "On DATE , ORG rejected her request for legal aid , finding that her claim had no prospect of success . It found that nothing suggested that ORG had deliberately misled ORG , thereby inducing it to decide in his favour . In this context , ORG referred to the certificate of wrongness issued by ORG of DATE .", "ORG did not follow LOC arguments that the aim of LAW could no longer be reached due to the lapse of time since . It noted that she herself had delayed the execution proceedings by submitting requests and motions to the courts . Moreover , PERSON had agreed to return to GPE with the children under certain conditions . ORG noted that on DATE , ORG in GPE had agreed to withdraw all criminal charges accusing PERSON of child abduction upon confirmation of the competent police authorities in GPE that they had arrived in GPE . PERSON was now therefore at liberty to enter GPE .", "On DATE , ORG ordered the court bailiff to execute the decision of DATE .", "On DATE , the bailiff , accompanied by the police , CARDINAL representatives of the local ORG as well as O. , his parents and his lawyer , attempted to remove the children from LOC home . Following the children ’s explicit refusal to accompany him , the court bailiff decided not to pursue the enforcement measure .", "On DATE , ORG rejected O. ’s request that , in order to implement the above decision , the court bailiff be vested with the right to use force against the children or to permit O. to use such force , should the children persist in their refusal to leave their mother ’s home . Given the danger that such an action could pose to the children ’s well - being , ORG did not wish to grant this request without consulting a psychological expert .", "On DATE , following ORG ’s appeal , ORG vested the court bailiff with the right to use force against the children or to let third persons of his choice use such force , in order to ensure the execution of the court order of DATE . It ordered the local ORG to attend the execution and to assist the court bailiff if appropriate and necessary .", "ORG found that PERSON had not submitted any new facts that would allow it to deviate from its decision of DATE . In particular , the argument based on the amount of time that the children had already spent living in GPE did not lead to a different assessment of the situation , for otherwise any illegal child abduction could evolve into a permanent illegal situation , merely due to the passing of time .", "ORG noted that no special psychological education and experience were needed to realise that in general , children will tend to oppose any changes in their living conditions , in particular if such changes are initiated by a parent with whom they have had no contact for a long time and who is thus considered a stranger . According to ORG , the children ’s refusal to return to GPE , insofar as it was not a result of their mother ’s influence , was mostly due to their fear of change and of an unknown future . It did not see their refusal as an indication that a return to their father by force would cause traumatic disturbances to their future development , thereby endangering their best interests . ORG assumed that the children would quickly recover once they had returned to GPE , even if their return was brought about by force .", "It did not consider that a less severe measure , such as ordering PERSON to pay a fine , would be effective , as only the children ’s removal from LOC home , if necessary by force , would ensure their safe return to GPE .", "On DATE , ORG refused to entertain the constitutional complaint of PERSON , PERSON and PERSON , in which they had complained about ORG decision of DATE to vest the bailiff with the right to use force against PERSON , PERSON and PERSON or to let third persons of his choice use such force , in order to ensure the execution of the court order on their return to GPE .", "Also on DATE , ORG , following O. ’s request , issued a new court order in which it ordered the bailiff to execute ORG order of DATE , taking into account the decision of DATE . It vested the court bailiff with the right to search PERSON premises and , if necessary , request aid from the police . The competent ORG was also held to assist the execution proceedings .", "Article CARDINAL", "“ The objects of the present Convention are :", "( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and", "( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”", "Article CARDINAL", "“ Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention . For this purpose they shall use the most expeditious procedures available . ”", "Article CARDINAL", "“ The removal or the retention of a child is to be considered wrongful where :", "( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and", "( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention . ”", "The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”", "Article CARDINAL", "“ For the purposes of this Convention -", "( a ) “ rights of custody’ shall include rights relating to the care of the person of the child and , in particular , the right to determine the child ’s place of residence ;", "( b ) “ rights of access ” shall include the right to take a child for a limited period of time to a place other than the child ’s habitual residence . ”", "Article CARDINAL", "“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .", "The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .", "Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicants , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE , DATE and DATE respectively . Mr PERSON and Mr PERSON are currently detained at FAC , DATE , and PERSON is currently detained at ORG Prison Full GPE , GPE . PERSON and PERSON were represented before ORG , a firm of solicitors based in GPE , and Mr PERSON was represented by PERSON , a firm of solicitors also based in GPE .", "On DATE PERSON was shot dead in a car in GPE . It appears that he was a member of , or had links with , a gang based in GPE called the ORG gang . Those responsible for his shooting were believed to have been members of ORG , a rival gang in GPE .", "Shortly after TIME on DATE , CARDINAL young women were shot dead outside a party at ORG , a hairdressing salon in GPE . CARDINAL other young women were injured . The shots were fired from a red ORG Mondeo car , which drove off following the shooting . The red Mondeo was later abandoned and set on fire .", "There was no dispute that the killings of the young women were gang - related . It was the prosecution case that the shootings were perpetrated by members of the ORG gang and were intended to target members of ORG , in revenge for the shooting of PERSON . The victims were not members of either gang and had been caught in the crossfire .", "The applicants were charged , together with CARDINAL other men , B and PERSON , with CARDINAL counts of murder and CARDINAL counts of attempted murder in respect of the shootings of the CARDINAL young women . The prosecution case was that the defendants were all members of the ORG gang and had participated in a joint enterprise to kill using firearms . They alleged that the red Mondeo had been purchased in ORG on DATE by PERSON and Mr PERSON for criminal purposes and had been driven to GPE . On TIME , a member of ORG had been boasting about his gang ’s superiority in a club called PERSON ’s when PERSON was present . An announcement was made in the club that there would be an “ after party ” at Uniseven . The prosecution claimed that the defendants had decided to take the opportunity to exact their revenge and arranged the drive - by shooting intended to target members of ORG . They alleged that PERSON had been the front seat passenger of the red Mondeo , that Mr PERSON had been a rear passenger of the car and that PERSON had been at the party at ORG , had acted as a “ spotter ” in informing the car ’s occupants of events at the party and had guided in the Mondeo .", "Although a number of people had witnessed the shooting , few were prepared to make statements because of a fear of retaliation against them and their families by gang members . CARDINAL witnesses came forward but were unwilling to have their identities disclosed . CARDINAL of the CARDINAL purported to be able to identify the occupants of the red Mondeo . They were given the pseudonyms “ PERSON ” and “ PERSON ” . A third witness , “ PERSON ” , claimed to have seen Mr PERSON at ORG ’s TIME . The remaining CARDINAL witnesses had been present during the shooting at Uniseven .", "Information concerning the evidence and the backgrounds of the CARDINAL anonymous witnesses was disclosed to the defence .", "PERSON evidence was encapsulated in his witness statement of DATE . In that statement , he said he was outside Uniseven and saw a red car driving down the road . He could see that there were CARDINAL men in the car and he knew all of them . He identified the front seat passenger of the car from which the shots were fired as Mr Ellis . He said he saw a gun in Mr Ellis’ hand . The man sitting behind Mr PERSON was , he said , Mr PERSON . He saw Mr PERSON lean over and take the gun from Mr PERSON . He identified the driver as “ PERSON ” and the other passenger as B. He then heard the sound of gunshots . He said that the men in the car were not wearing masks .", "He said that he had known Mr PERSON for DATE and that he had been involved in an incident before the New Year shootings where PERSON and his cousin were shot at . PERSON stated that he had a grudge against CARDINAL of the people in the car , which was related to the shooting incident . He also said that he had known Mr PERSON for DATE , that he had seen him numerous times and that they did not get on because Mr PERSON had previously dated a niece of one of his cousins .", "A number of disclosures regarding PERSON previous comments to the police and in prison , his background and his criminal antecedents were made by the prosecution to the defendants . These disclosures were taken from prison and police records . In particular , it was disclosed that PERSON had links to ORG , the younger arm of ORG . He had stated that he was wanted by the ORG gang , that there had been an attack planned on him for New Year ’s Eve CARDINAL and that he had been shot at CARDINAL times . Finally , it was disclosed that PERSON had made CARDINAL court appearances in respect of robberies .", "It was also disclosed that PERSON refused to participate in an identification procedure to identify those he claimed were in the red Mondeo .", "Jones’ evidence was set out in his witness statement of DATE . In his statement , he indicated that before the fatal shootings he had been at a public house and had seen Mr PERSON , Mr PERSON and PERSON standing by a red Mondeo talking . He later went to the party at the hairdresser ’s salon where he saw PERSON walk by . He claimed that TIME he saw PERSON sitting in the back of the red car , in the middle seat . It was driving slowly , and PERSON was in the front passenger seat , and Mr PERSON and Mr PERSON were in the back with PERSON . TIME the car drove by again , but the occupants had changed positions . Mr B. was leaning out of the back passenger window firing a gun . The other occupants had changed seats but PERSON was unsure who was where .", "It was also disclosed that PERSON was an experienced and serious criminal who moved in the same circles as the defendants . His criminality was wider than that revealed by his antecedent history and the trial judge considered that he was plainly very knowledgeable about firearms , their availability and their price .", "PERSON claimed to have seen Mr PERSON at ORG ’s at TIME on DATE . She was of good character .", "Disclosures were also made about the evidence of the remaining CARDINAL anonymous witnesses and their backgrounds .", "The prosecution relied on telephone call pattern evidence to show that a number of phone calls took place between the defendants at critical times in the lead up to and aftermath of the shootings . There was evidence of calls between the mobile phone of Mr PERSON and the mobile phone associated with PERSON , and between the mobile phones of Mr PERSON and PERSON PERSON , on DATE , when the Mondeo was purchased and driven to GPE . There was evidence of various calls made around QUANTITY a.m. on DATE between PERSON and the mobile phone associated with PERSON", "There was also evidence of a car which was registered in the name of Mr PERSON being driven from GPE to PERSON on DATE , where the CARDINAL occupants purchased a red Mondeo . ORG footage showed the Mondeo being driven from PERSON to GPE in convoy with Mr PERSON ’s vehicle . Mr PERSON subsequently accepted that he participated in the purchase of the red Mondeo , allegedly for a friend .", "The prosecution also relied on cell site evidence , which provided information on the locations from which mobile telephone calls were placed and was consistent with PERSON , PERSON , PERSON and PERSON being in the area of the killing at the material time and making the movements alleged by the prosecution . It was also consistent with PERSON and PERSON being in the area where the car was subsequently burnt out . The cell site evidence was also consistent with the prosecution allegation that PERSON Ellis’ alibi was false .", "NORP The prosecution further relied on evidence of firearms residue found on Mr Ellis’ jacket .", "Finally , the prosecution sought to call the CARDINAL anonymous witnesses , including PERSON and PERSON , to give oral evidence of what they saw on TIME of the shootings .", "On DATE , the trial judge handed down his ruling on the requests for anonymity at a preparatory hearing . He noted at the outset that it was not disputed that the witnesses reasonably feared retribution both personally and for their families if their identities were made known . He further observed that although a number of people must have witnessed the events , PERSON and PERSON were the only CARDINAL witnesses who directly implicated some of the defendants .", "The judge considered the possible support for PERSON evidence . He noted that the prosecution relied on other evidence , including mobile phone records , evidence linking some of the defendants to the purchase of the red ORG and evidence of firearms residue that had been found on a piece of clothing recovered from Mr PERSON ( see paragraphs CARDINAL above ) . He then turned to consider what had been disclosed about the anonymous witnesses , summarising the disclosures about the statements they had made and their backgrounds ( see paragraphs QUANTITY above ) . He observed that a number of public interest immunity hearings had been held and that a substantial amount of disclosure had taken place .", "The judge examined the case - law of this ORG and the domestic courts on the issue of anonymous witnesses . He summarised the parties’ submissions and set out his conclusions as regards the general position in respect of anonymous witnesses .", "First , he referred to the “ very real problems now encountered in persuading witnesses to come forward and go into the witness box ” . He noted that intimidation of witnesses was , or was perceived by witnesses , to be rife . He considered it self - evident that society had an interest in encouraging witnesses to come forward and protecting them if they did .", "He indicated that the question whether a witness could give evidence anonymously was a matter for the exercise of the trial judge ’s discretion . The decisive feature in the exercise of that discretion was whether the ensuing trial could be fair . He noted that whether any given trial was fair was a matter of balancing the different interests involved , which he identified as the interests of society and the victims in allegations of serious crime being tried and the guilty punished , the protection of the witness and the interests of the accused in being able properly to defend himself . The trial judge considered that the defendants had a right to “ a fair administration of justice ” . However , that right was not absolute and the fact that a defendant would suffer some prejudice did not mean that a fair trial could not take place .", "The trial judge further considered that a witness whose creditworthiness was in issue could give evidence anonymously , provided that proper caution was exercised , that there had been investigation of the creditworthiness of the witness and that full disclosure had been given .", "As to the case - law of this ORG , the judge was of the view that the observations in PERSON v. the GPE , § DATE , DATE , Reports of Judgments and Decisions CARDINAL , to the effect that a conviction based solely or decisively on anonymous evidence could not be fair , had to be considered in the context of the NORP procedure which the ORG was then considering . In the present case , the witness would be cross - examined in front of the jury on the basis of very substantial information which had been disclosed and which enabled his account to be questioned . He observed that it was part of any assessment of the fairness of the trial to consider the trial process , and more particularly how anonymous evidence was to be given and what the jury would be told . He considered that the trial process could minimise any prejudice to the defendant because , among other things , the jury could be told to take account of the problems that the defence faced when such a witness gave evidence and that they should not hold against the defendant the giving of such evidence .", "The trial judge concluded that PERSON could give evidence anonymously and that the trial would not be unfair as a result . He based his decision on the following considerations :", "“ CARDINAL . First , he is a witness reasonably in fear . Objectively , if identified , his life or that of his family or friends may be in danger .", "Second , he has evidence to give which is of the very greatest importance in resolving these serious criminal allegations .", "Third , if not permitted to give evidence anonymously , it is likely that the prosecution will be unable to adduce his evidence .", "Fourth ... there has been very extensive disclosure in his case . It permits the defendants very extensive and detailed cross - examination . The limits placed on that cross - examination and on the conduct of defence can be made clear to the jury . While it may be that disclosure of his identity ... might lead to further material for crossexamination going to credit , the present disclosure is in my view sufficient to permit the defence properly to be advanced and a fair trial to take place . Indeed , it may be argued that the defence will be in a particularly strong position without knowing the ORG identity . They have ample material for cross - examination . In addition , they have the point to make to the jury concerning the difficulties they are under .", "Fifth , in addition to any attack on the NORP credibility , the defence have in any event an argument on the difficulty of any identification in the circumstances spoken to by the witness . It may well be ... I shall be obliged to give a ‘ GPE . If so , the jury will be warned of the dangers in the identification evidence and its weaknesses enumerated .", "Sixth , ... I am entitled in considering this witness’ creditworthiness , to take into account such support as there apparently is for his account . ”", "In respect of PERSON , the judge considered that there were questions raised in respect of his creditworthiness that put him into a different category from PERSON . He noted that there was not the extent of apparent support for his evidence which existed in the case of PERSON and , despite the fact that the disclosure given would permit a great deal of cross - examination , he concluded that it would not be safe to permit him to give evidence anonymously .", "The remaining CARDINAL witnesses were also permitted to give anonymous evidence . In respect of CARDINAL of them , no objection had been made .", "Finally , the judge indicated that the question of anonymity was something to be kept continually under review .", "On DATE , the judge handed down a further ruling following a submission by the defendants that in the absence of a proper identification procedure by PERSON , no fair trial could take place . The defendants argued that his evidence of recognition could only be admitted if there were a proper identification procedure or if PERSON identity were disclosed .", "The judge was of the view that even if the submission amounted to an attack on his previous ruling on anonymity , it was nonetheless something he had to consider . He continued :", "“ CARDINAL . ... In any criminal trial fairness requires that rulings such as these , which are far from straightforward , are continually kept under review . That includes taking account of fresh submissions which may have a bearing on the trial ’s fairness . In short , if I conclude that a fair trial required disclosure of PERSON ’s identity I would review my earlier ruling . ”", "He noted PERSON explanation for why he did not agree to participate in an identification procedure , namely that he wanted to do it but was afraid of the impact of picking or not picking suspects and his identity becoming known to them if he did not pick them . He analysed PERSON identification evidence , noting that he set out the basis upon which he knew the defendants , at times in considerable detail . The judge concluded :", "“ In the course of my ruling on anonymity , I referred to the extensive crossexamination available to the defence in the light of the disclosure . It would still be available . Moreover , it seems to me that while cross - examination will , as is inevitable , be to some extent constrained , much can be asked . Whether he may be a fantasist can be investigated . Further , as I have indicated , what PERSON says as to the history of his relationships with the defendants can be amplified before he gives evidence ... As I indicated in my previous ruling , it does not end there . There would be a PERSON direction . The jury would know the limitations under which the defence was acting . ORG did not accept the offer of an identification procedure would be plain . My reading of the material in which he refused such a procedure may provide powerful material for cross - examination . ”", "He therefore ruled PERSON evidence of recognition to be admissible , subject to the exclusion of hearsay , and considered it unnecessary to reconsider his ruling on anonymity , noting that PERSON evidence as a whole and his purported recognitions could be questioned , that there was ample cross - examination possible and that the presence of counterbalancing factors depended on each case . He reiterated the need to keep the matter under review .", "A number of the defendants , including PERSON and PERSON , appealed the judge ’s ruling on anonymity . ORG handed down its judgment on DATE . It considered that the trial judge had applied his mind impeccably to the law , both in GPE and under LAW . The appeals were accordingly dismissed .", "Subsequently , a number of further disclosures about PERSON were made . It was disclosed that he owed money to both gangs and that the police had made certain payments to him . The handwritten police log was disclosed as were the prison notes from institutions where PERSON had been detained , which revealed that PERSON was awaiting sentence when the police first made contact with him . As a result of the further disclosures , the defence asked the judge to review his ruling on anonymity . It was alleged that the newly - disclosed material undermined PERSON credibility and creditworthiness and suggested that his information about the shooting may have been hearsay .", "On DATE the trial judge handed down a further ruling . He accepted that further disclosure had revealed more about PERSON than had been known at the time of the previous ruling . However , even at that time , PERSON gang background and his motive for lying were clear . The judge concluded that the order for anonymity should remain . He considered that PERSON credibility was not so affected that he could only give evidence if his identity were disclosed . He further noted that on the basis of what had now been disclosed the defence could mount a formidable attack on PERSON credibility . Specifically as to the concerns regarding hearsay evidence , the judge indicated that if PERSON was making any assertions on the basis of hearsay , this would become clear in cross - examination whether he was anonymous or not . He reiterated the need for careful directions to the jury in due course .", "Before PERSON took the witness stand , the judge gave the jury certain directions . In particular , he advised them that the fact that PERSON was giving evidence anonymously had significant implications for the defence and restricted them in the conduct of their cases . They were not permitted to ask questions which could lead to his identification . Because they did not know who he was they could not put to him any personal reason he might have had for implicating them . Nor could they put to him any general matters going to his credibility . The jury were told that the limitations on the defence were considerable and that the jury had to make allowances for this in its assessment of PERSON evidence .", "The judge , the jury , counsel and solicitors could all see and hear PERSON give evidence . They was no voice distortion as far as they were concerned , although he was “ lightly disguised ” in order to boost his confidence . Neither the defendants nor the public were able to see him and his voice was distorted for them .", "Examination - in - chief of PERSON by the prosecution began on DATE . He gave evidence regarding the events of DATE . He indicated that he had seen PERSON speaking on a mobile telephone outside PERSON , that he had seen a red car arrive with CARDINAL occupants , and that CARDINAL of those occupants were Mr Ellis , Mr PERSON and PERSON was subsequently cross - examined by defence counsel , who sought to undermine his credibility and account of events .", "Following the conclusion of the prosecution case , all defendants except Mr PERSON submitted to the judge that there was insufficient evidence for the jury to convict them . On DATE the trial judge handed down his ruling on the defence submission .", "The judge summarised the prosecution case that there was a joint enterprise to kill using firearms . He noted that the prosecution relied both on circumstantial evidence and on the evidence of PERSON . He reviewed in detail the evidence given by PERSON . He considered it plain that Mr PERSON had lied about many matters but , in the final analysis , concluded that PERSON credibility was a matter for the jury . He observed that a substantial amount of disclosure had taken place , and that this had formed the basis of sustained and effective cross - examination . He noted :", "“ ... in all PERSON was cross - examined most effectively for , as I recall , something like DATE . His credibility was severely dented ; he told many lies ; had his identity been known it is , of course , possible that further damage might have been done . But , be that as it may , sufficient damage was done to his credibility to found what was not a frivolous submission that his credibility had been destroyed to the extent that I should direct the Jury accordingly , anonymity apart . It has resulted in a document which the Jury has which effectively sets out his lies as I have indicated . ”", "The judge explained that there would be a further direction to the jury in due course regarding their approach to PERSON evidence , essentially to the effect that they could not rely on that evidence alone . He continued :", "“ Having regard to the features I have set out above , it seems to me , circumscribed as they would be by my directions , the Jury could place reliance upon what PERSON says . While any conviction would not then be based solely upon his evidence , I accept that one can not exclude the possibility that his evidence was decisive . However , given the other contemplated safeguards in the trial process so far , that would not seem to me contrary to LAW", "He indicated that it therefore followed that unless the jury could conclude that there was independent evidence supporting PERSON and implicating a particular defendant , there could not be a case left to the jury regarding him . The judge explained that , in the circumstances , such evidence would need to be cogent ; tenuous evidence would not be enough . He considered that such evidence existed in the cases of Mr PERSON , Mr PERSON and PERSON and summarised in some detail what could be inferred by the jury from what they had heard during the evidence led at trial , including the background to the shootings , the association among Mr PERSON , Mr PERSON , PERSON and PERSON at the material time as shown by telephone records , and the involvement of Mr PERSON , PERSON and PERSON in the purchase of the vehicle used in the shootings . He further noted that firearms residue had been found on PERSON Ellis’ clothing . He concluded :", "“ Putting together the different pieces of evidence I have summarised ... it does seem to me there is circumstantial evidence in the cases of PERSON , who ... does not dispute it , [ PERSON ] , PERSON and PERSON , in respect of their participation in this joint enterprise to kill . It would also be sufficient evidence of participation to enable the jury then to consider what PERSON had to say ... ”", "However , the judge did not consider there to be cogent independent evidence in respect of PERSON , and accordingly directed the jury to acquit him .", "In the course of the trial judge ’s summing up , he gave the jury a warning about identification evidence , highlighting the weak aspects of PERSON purported identification evidence .", "He also gave the jury a number of warnings about PERSON . He directed them , first :", "“ ... if you are to rely on anything said by PERSON , you must be sure he is a credible witness , someone capable of belief . If you ’re not sure of that , no amount of other evidence which is said to be consistent with his account can help . If you think he may not be someone upon whom you can place any reliance , you must ignore his evidence .", "If they were satisfied that he was credible , he directed them to approach his evidence in the following way :", "“ ... You must consider whether in respect of the defendant whose case you are considering there is some other evidence of that defendant ’s participation in this joint enterprise ... apart from what PERSON says . So put PERSON to CARDINAL side and consider if there is some other evidence of that defendant ’s participation . If you ’re not sure that there is such other evidence , then you must acquit that defendant . If you conclude that there is such other evidence , then you may take PERSON evidence into account in deciding whether or not you are sure of guilt , bearing in mind the first warning which I just gave you .", "In other words , first you consider the circumstantial evidence . If you are sure it implicates the defendant in question in this joint enterprise , then but only then may you consider what PERSON says . Of course , if you think you can not rely on PERSON at all , then you decide guilt or innocence solely on the basis of the other evidence . You will remember that I told you that the prosecution submit that the other evidence called by them as part of their case proves the defendants Mr PERSON , [ PERSON ] and PERSON are guilty ...", "The prosecution accept – again , I ’ve told you DATE that the evidence called by them would not be enough to place Mr PERSON in the Mondeo . To do that , some reliance would have to be placed on PERSON . However , the prosecution say that if you are sure that ... the alibi witness called on behalf of Mr PERSON was lying , then , taking into account that false alibi plus the other pieces of the circumstantial evidence called by the prosecution , that would be enough for you to be sure that Mr PERSON was in the Mondeo , PERSON apart . ... [ D]efence counsel disagreed with that effectively with some force .", "In the case of [ B. ] , whom you acquitted on my direction , there was nothing capable of amounting to such other evidence and that ’s why I directed an acquittal . It underlines ... the importance of these directions when considering your approach to PERSON . ”", "In concluding his summing up , the judge reminded the jury of how to approach PERSON evidence regarding the identities of those in the Mondeo . He emphasised that they had first to consider him a credible witness and also be satisfied that there was other evidence of the applicants’ participation in the joint enterprise before they could rely on his evidence .", "On DATE Mr Ellis , Mr PERSON , PERSON and PERSON were convicted of CARDINAL counts of murder and CARDINAL counts of attempted murder in respect of the shootings of the CARDINAL young women . They were sentenced to life imprisonment in respect of the murder convictions .", "The applicants appealed to ORG . Their case was heard together with an appeal in the case of NORP v. PERSON .", "On DATE ORG dismissed the appeals . It began by noting that in the context of witness anonymity , CARDINAL rights protected by the Convention were engaged : DATE were closely related to the rights , among others , of witnesses ; and LAW was concerned with the protection of the defendant ’s right to a fair trial . It then went on to review the case - law of this Court on the question of anonymous witnesses , as well as decisions of the domestic court . As to the possibility of permitting the evidence of anonymous witnesses at trial , the court found :", "“ CARDINAL . ... In our judgment the discretion to permit evidence to be given by witnesses whose identity may not be known to the defendant is now beyond question . The potential disadvantages to the defendant require the court to examine the application for witness anonymity with scrupulous care , to ensure that it is necessary and that the witness is indeed in genuine and justified fear of serious consequences if his true identity became known to the defendant or the defendant ’s associates . It is in any event elementary that the court should be alert to potential or actual disadvantages faced by the defendant in consequence of any anonymity ruling , and ensure that necessary and appropriate precautions are taken to ensure that the trial itself will be fair . Provided that appropriate safeguards are applied , and the judge is satisfied that a fair trial can take place , it may proceed . If not , he should not permit anonymity . If he does so , and there is a conviction , it is not to be regarded as unsafe simply because the evidence of anonymous witnesses may have been decisive . ”", "As to the safeguards available in the applicants’ case , the court referred first to the discretion enjoyed by the trial judge to allow some or all witnesses to give their evidence anonymously . It observed that if the only evidence against the defendants consisted of wholly unsupported anonymous witnesses , whose evidence was demonstrably suspect , it was open to the judge to decide that the prosecution should not adduce it . Further , if the decisive evidence came from an unidentified witness who could not be cross - examined ( an anonymous absent witness ) , the judge could decide that the evidence should not be admitted . Moreover , at the end of the prosecution case the judge could decide that it would be unsafe for the evidence of the anonymous witnesses to be considered further by the jury , or indeed , that the case as a whole should be withdrawn from their consideration . Finally , the judge was obliged to give appropriate directions in his summing up , sufficient to identify the particular disadvantages under which the defence might have been labouring , and would probably suggest that the jury should consider whether there was any independent , supporting evidence , tending to confirm the credibility of the anonymous witnesses , and the incriminating evidence they had given .", "Turning to the facts of the case , ORG examined the mobile phone record evidence presented at trial . It noted :", "“ CARDINAL . This evidence about the use of mobile phones demonstrably belonging to the CARDINAL appellants at critical times all through the night leading up to and after the shooting , taken as a whole , and when linked with the remaining evidence , provided a formidable case against them . ”", "The court also referred to the evidence of firearms residue found on PERSON Ellis’ clothing .", "As regards the trial judge ’s ruling on anonymity ( see paragraphs CARDINAL above ) , the court observed that it had already been upheld by ORG in the context of an interlocutory appeal ( see paragraph CARDINAL above ) . It also noted that the judge kept his ruling under constant review and that there had been CARDINAL public interest immunity hearings during the trial itself .", "In respect of the evidence given by PERSON , the court noted :", "“ CARDINAL . ... He purported to identify some of those in the red Mondeo , but his evidence was not entirely consistent on the subject , and in any event , faced the major difficulty , that other witnesses had suggested identification was not practicable .", "By the time PERSON gave evidence , there had been full disclosure of all the material available to the Crown . He was cross - examined for DATE , by CARDINAL leading counsel . His credibility was severely damaged . ”", "The court considered that despite the various complaints made by the defendants , the cross - examination of PERSON illustrated that notwithstanding his anonymity the process could be and was extremely effective . It observed that so far as PERSON was concerned , PERSON evidence provided no more than a little confirmation of facts already independently demonstrated ; and PERSON in any event admitted that he had been at ORG TIME . It further observed that Mr PERSON had chosen not to give evidence and that Mr PERSON had given evidence and admitted his involvement in the purchase of the Mondeo and the correctness of the attribution of mobile phone numbers to him . The court continued :", "“ CARDINAL . The case was summed up to the jury with meticulous care . The directions of law were accurate . Appropriate warnings were given . The evidence was closely analysed . The summing up was comprehensive , balanced and fair . ”", "ORG concluded that there was no reason to doubt the integrity of the trial process or the safety of the convictions .", "The court refused to certify a question on a point of law of general public importance in the applicants’ case which ought to be considered by ORG . However , it certified a question in the case of R v. PERSON and ORG handed down its judgment in that case on DATE ( see paragraphs CARDINAL below ) .", "Following the ORG of Lords’ judgment in NORP v. PERSON quashing the conviction of that appellant , the applicants applied to ORG to have their convictions referred to ORG . Their applications were refused on DATE .", "At the material time , the relevant factors for a trial judge considering whether to exercise his discretion to allow anonymous evidence were set out by ORG in NORP v. PERSON and PERSON ( DATE ) . First , there had to be real grounds for being fearful of the consequences if the evidence was given and the identity revealed . Second , the evidence had to be sufficiently relevant and important to make it unfair to the prosecution to compel them to proceed without it . Third , the prosecution had to satisfy the court that the creditworthiness of the witness had been fully investigated and that the results of that enquiry had been disclosed to the defence so far as was consistent with the anonymity sought . Fourth , the court had to be satisfied that no undue prejudice was caused to the defendant , “ undue ” being a necessary qualification because some prejudice was inevitable if the anonymity order was made . Finally , the court could balance the need for protection against the unfairness or appearance of unfairness in the particular case . This reasoning was largely endorsed by ORG in R ( LOC ) v. Governor of FAC ( [ DATE ] ORG CARDINAL ) .", "As noted above , ORG handed down its judgment in the case of NORP v. PERSON ( [ DATE ] UKHL CARDINAL ) on DATE . The case concerned a fatal shooting at a party in GPE . PERSON admitted attending the party but claimed to have left before the shooting and denied being the gunman . CARDINAL witnesses identified Mr PERSON as the gunman but all claimed to be in fear for their lives if their identities became known . The judge allowed them to give anonymous evidence at trial . He ordered that they were to give evidence under pseudonyms , that their addresses and personal details were to be withheld from the defendant and his legal advisers , that no question could be asked of them which would permit their identification , that they were to give evidence behind a screen so that they could be seen by the judge and jury only and that their voices were to be distorted for all but the judge and jury .", "ORG found that the ORG testimony was inconsistent with the long - established principle of the NORP common law that , subject to certain exceptions and statutory qualifications , the defendant in a criminal trial should be confronted by his accusers in order that he might cross - examine them and challenge their evidence . Although this ORG had not ruled that anonymous evidence was inadmissible in all circumstances , it had said that a conviction should not be based solely or to a decisive extent on anonymous statements . In any event , their Lordships considered that on the facts of the case before it , this ORG would have found a violation of LAW , as not only was the anonymous witness evidence the sole or decisive basis on which PERSON had been convicted but effective cross - examination had also been hampered .", "Following the ORG of Lords’ judgment in NORP v. PERSON Anonymity ) Act DATE ( “ the CARDINAL Act ” ) was enacted as a matter of urgency to permit anonymous witness evidence at trial and to give guidance on the relevant factors to be taken into account , based on the ORG ’s case - law .", "DATE . The CARDINAL Act was subsequently replaced by provisions of the Coroners and Justice Act DATE ( “ the DATE LAW ) , which now regulates the conditions under which witnesses can give evidence anonymously in criminal proceedings . Section CARDINAL(CARDINAL)-(CARDINAL ) lays down the conditions for the making of a witness anonymity order and LAW sets out a number of relevant considerations to which a court must have regard before permitting anonymous evidence , including whether evidence given by the witness might be the sole or decisive evidence implicating the defendant ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "The applicant holds a number of premium bonds issued in DATE ( “ the DATE GPE bonds ” , облигации Государственного внутреннего выигрышного займа DATE года ) . She deposited them in DATE with ORG ( “ the Savings Bank ” – Сбербанк России ) .", "NORP In DATE the GPE was dissolved . In DATE the Government of GPE acknowledged that the DATE GPE bonds held by NORP nationals were a part of its internal debt . DATE ORG proposed a settlement to the holders of the DATE GPE bonds ( “ the redemption scheme ” ) . The redemption scheme provided for conversion of the DATE GPE bonds into NORP bonds issued in DATE or , alternatively , their buy - out by ORG at a price fixed by the Government . The applicant did not react to that offer , so , according to LAW no . CARDINAL of CARDINAL DATE describing the means of the redemption scheme , her bonds were automatically acquired by ORG . The bonds were extinguished and the redemption price of the DATE GPE bonds was credited to the applicant ’s bank account .", "DATE , a series of NORP laws was adopted which provided for the conversion of NORP securities , including the DATE GPE bonds , into special NORP promissory notes . In particular , on DATE the Promissory Value Act introduced the “ promissory rouble ” as the currency of special promissory notes issued by GPE . On DATE FAC set out the general approach to be taken as regards the conversion of “ promissory roubles ” into NORP roubles . The Government were mandated to devise a more detailed procedure for the conversion . Although a regulation on the conversion process was adopted by the Government in DATE ( “ Resolution no . CARDINAL ” ) , the actual conversion did not start and application of the regulation has remained suspended , by a series of resolutions , to DATE . The application of FAC was suspended from DATE to CARDINAL DATE by successive federal laws .", "In DATE the applicant brought proceedings against ORG of GPE and the Savings Bank seeking damages for the loss of value of her bonds . The first judgment on the merits was rendered in DATE . On DATE , following several rounds of court proceedings , ORG of GPE dismissed her claim . She appealed .", "On DATE ORG , sitting as a court of appeal , satisfied her claim in part . In particular , ORG found that the compulsory redemption of the bonds in DATE had breached the applicant ’s rights . ORG ordered that the applicant should be restored to the same position as other bondholders , whose bonds had not been subjected to compulsory redemption and had later been converted into special promissory notes of GPE . ORG acknowledged the applicant ’s right to CARDINAL special promissory notes having a total nominal value of CARDINAL “ promissory roubles ” . The court also “ acknowledged the applicant ’s right to obtain redemption of the notes from the ORG , under the conditions established by the legislation in force for the holders of special promissory notes ” .", "The applicant brought supervisory review proceedings , but to no avail . In the ruling of CARDINAL DATE a judge of ORG explained that in the absence of a specific law defining the terms and conditions of the redemption of the special promissory notes , the ORG had no obligation to pay the applicant any particular amount .", "NORP On DATE the applicant obtained a writ of execution against ORG in pursuance of the judgment of CARDINAL DATE . The writ was valid for DATE . However , it was not enforced . The Government claimed that the applicant had not tried to enforce the writ by serving it on ORG .", "In DATE the applicant initiated several sets of court proceedings against various ORG bodies and officials , seeking damages for the lengthy non - enforcement of the judgment of DATE , complaining of the failure of the Government and of the legislature to implement LAW , and so forth . It appears that all her claims were rejected , either for want of substantive jurisdiction over the dispute , or because the courts had found her claims unsubstantiated . In particular , the applicant sued ORG for its failure to redeem the promissory notes , claiming MONEY under the heads of pecuniary and non - pecuniary damage . On DATE ORG , acting as the court of final instance , rejected her claims against ORG on the grounds that similar claims has already been examined in DATE , and , furthermore , the applicant had failed to justify the amount sought from the defendant .", "For the relevant domestic law on ORG premium bonds and promissory notes of ORG , see the case of PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL et seq . , DATE ." ]

[ "P1" ]

[ "P1-1" ]

[ "P1-1-1" ]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "NORP In DATE the applicant took part in emergency operations at the GPE nuclear plant . As a result he suffered from extensive exposure to radioactive emissions . The applicant underwent medical examination which established the link between his poor health and his involvement in the GPE events . He was consequently granted status of a disabled person and awarded special DATE benefits from the ORG .", "Until DATE the applicant received DATE benefits in the amount of MONEY ( RUR ) . However , as from DATE ORG decreased the amount of the benefits to ORG CARDINAL,CARDINAL and as from DATE to RUR CARDINAL.CARDINAL on the grounds that the amount previously paid had been miscalculated .", "Considering the decrease of the DATE benefits unlawful , in DATE the applicant , together with CARDINAL other plaintiffs , instituted proceedings against ORG .", "On DATE the ORG granted the claim and found the decrease of the DATE benefits unlawful . The court awarded the applicant arrears for the period DATE and the date of the judgment in the amount of PERSON ( approximately ORG CARDINAL,CARDINAL ) and ordered ORG to make DATE payments for his benefit in the amount of RUR CARDINAL ( approximately ORG CARDINAL ) . The judgment was not appealed against and became final .", "On DATE the execution proceedings were instituted .", "The Prosecutor of GPE brought an application for supervisory review of the judgment . The application was dated DATE . The execution proceedings were stayed until the examination of the application . The order to stay the execution proceedings , which referred to the application for supervisory review lodged by the acting Prosecutor of GPE , was dated DATE .", "On DATE the Presidium of ORG granted the application . The ORG quashed the judgment of DATE and remitted the case for a fresh examination on the grounds that the first instance court miscalculated the amount of the DATE benefits .", "NORP On DATE the execution proceedings were terminated due to the quashing of the judgment .", "On DATE , after the new examination of the case , ORG dismissed the applicant ’s claim .", "On DATE ORG upheld the judgment on appeal .", "On DATE , following the applicant ’s request of CARDINAL DATE , the Acting Chairman of ORG brought an application for supervisory review of the judgments of DATE and DATE .", "On DATE the Presidium of ORG of GPE granted the application . The ORG quashed the judgments of CARDINAL DATE and DATE and remitted the case for a fresh examination on the grounds that the court ’s calculation of the amount of the DATE benefits was unlawful .", "On DATE the ORG stayed the proceedings concerning the applicant ’s claim until ORG pronounced on the relevant issue .", "On DATE the ORG renewed the proceedings . It appears that at a certain stage the proceedings concerning the applicant ’s claim were severed from the proceedings concerning the claims of the other CARDINAL plaintiffs .", "On DATE the ORG partially granted the applicant ’s claim .", "On DATE ORG quashed the judgment on appeal and remitted the case for a fresh examination .", "On DATE the ORG partially granted the applicant ’s claim . The court awarded the applicant arrears in the amount of ORG ( approximately ORG CARDINAL ) and ordered ORG to make DATE payments for his benefit in the amount of RUR CARDINAL,CARDINAL.CARDINAL ( approximately ORG CARDINAL ) .", "On DATE ORG varied the judgment of DATE . The court awarded the applicant arrears for the period DATE and DATE in the amount of ORG ( approximately ORG CARDINAL ) and ordered ORG to make DATE payments for his benefit in the amount of RUR CARDINAL,CARDINAL.CARDINAL ( approximately ORG MONEY ) . The court calculated the arrears for the whole period by index - linking the amount of the DATE payments to the pensioner ’s subsistence minimum set DATE by ORG of GPE .", "On DATE the execution proceedings were instituted . They were closed on DATE due to full recovery of the judgment debt .", "On an unspecified date the applicant applied for supervisory review of the judgments of DATE and DATE . On DATE ORG dismissed the application .", "Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .", "Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff .", "Under LAW Code of Civil Procedure , which was in force at the material time , judgments became final as follows :", "“ Court judgments shall become legally binding on the expiration of the time - limit for lodging a cassation appeal if no such appeal has been lodged . If the judgment is not quashed following a cassation appeal , it shall become legally binding when the higher court delivers its decision ... ”", "The only further means of recourse was the special supervisory - review procedure that enabled courts to reopen final judgments :", "“ Final judgments , decisions and rulings of all NORP courts shall be amenable to supervisory review on an application lodged by the officials listed in LAW . ”", "The power of officials to lodge an application ( protest ) depended on their rank and territorial jurisdiction :", "“ Applications may be lodged by :", "The Prosecutor General – against judgments , decisions and rulings of any court ;", "The President of ORG – against rulings of the Presidium of ORG and judgments and decisions of ORG of ORG acting as a court of first instance ;", "Deputy Prosecutors General DATE against judgments , decisions and rulings of any court other than rulings of the ORG of ORG ;", "Vice - Presidents of ORG – against judgments and decisions of ORG of ORG acting as a court of first instance ;", "ORG , Deputy Prosecutor General , the President and Vice - Presidents of ORG – against judgments , decisions and rulings of any court other than rulings of the Presidium of ORG ;", "The President of ORG of an autonomous republic , regional court , city court , court of an autonomous region or court of an autonomous district , ORG of an autonomous republic , region , city , autonomous region or an autonomous district DATE against judgments and decisions of district ( city ) people ’s courts and against decisions of civil chambers of , respectively , ORG of an autonomous republic , regional court , city court , court of an autonomous region or court of an autonomous district that examined the case on appeal . ”", "The power to lodge such applications was discretionary , that is to say it was solely for the official concerned to decide whether or not a particular case warranted supervisory review .", "Under LAW officials listed in LAW who considered that a case deserved closer examination could , in certain circumstances , obtain the case file in order to establish whether good grounds for lodging an application existed .", "Article CARDINAL of the Code empowered the relevant officials to stay the execution of the judgment , decision or ruling in question until the supervisory review proceedings had been completed .", "Courts hearing applications for supervisory review had extensive jurisdiction in respect of final judgments :", "“ The court that examines an application for supervisory review may :", "Uphold the judgment , decision or ruling and dismiss the application ;", "Quash all or part of the judgment , decision or ruling and order a fresh examination of the case at first or cassation instance ;", "Quash all or part of the judgment , decision or ruling and terminate the proceedings or leave the claim undecided ;", "Uphold any of the previous judgments , decisions or rulings in the case ;", "Quash or vary the judgment of the court of first or cassation instance or of a court that has carried out supervisory review and deliver a new judgment without remitting the case for re - examination if substantive laws have been erroneously construed and applied . ”", "The grounds for setting aside final judgments were as follows :", "“ ...", "wrongful application or interpretation of substantive laws ;", "significant breach of procedural rules which led to delivery of unlawful judgment , decision or ruling ... ”", "There was no time - limit for lodging an application for supervisory review , and , in principle , such applications could be lodged at any time after a judgment had become final ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]