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jonathanli

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[ "The applicant was born in DATE . When lodging his application , he was detained in GPE , GPE . He is presently living in GPE , GPE .", "On DATE the applicant was arrested in PERSON . On DATE the ORG issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed CARDINAL counts of robbery and CARDINAL count of robbery in connection with attempted murder .", "On DATE ORG charged the applicant with attempted murder , aggravated robbery causing physical injury , and an offence under LAW .", "On DATE ORG dismissed the applicant ’s motion to have Mr B. appointed as defence counsel .", "On DATE ORG ordered that the applicant ’s detention on remand be continued on the grounds that the strong suspicion that he had committed the crimes he was accused of persisted and that he was likely to abscond if released .", "On DATE ORG dismissed the applicant ’s appeal against ORG decision of DATE .", "On DATE ORG admitted the indictment without modifications and decided to open the trial against the applicant and CARDINAL other accused . The trial started on DATE .", "On DATE and DATE ORG confirmed the arrest warrant of DATE . On DATE ORG dismissed the applicant ’s request to suspend the arrest warrant of DATE .", "On DATE , after the trial had taken place on DATE with an average duration of TIME , a lay assessor fell ill . As the designated substitute lay assessor had withdrawn previously , also due to illness , the trial had to begin anew .", "On DATE ORG upheld the arrest warrant . It found that irrespective of the delays occasioned by the FAC illness , the applicant ’s continued detention was proportionate given the serious nature of the crimes he was charged with .", "On DATE the trial was reopened with CARDINAL substitute lay assessors .", "On DATE ORG rejected the applicant ’s appeal against ORG decision of CARDINAL DATE upholding the arrest warrant .", "On DATE , the applicant alleged for the first time that he had been in LOC , in GPE , at the time of the offence .", "On DATE ORG dismissed the applicant ’s request to suspend the execution of the arrest warrant . It decided that investigations in GPE with regard to the applicant ’s alibi be conducted by way of letters rogatory .", "On DATE ORG , following the applicant ’s appeal , refused to change its decision of DATE ( LOC ) and forwarded the appeal to ORG . According to ORG , the applicant ’s continued detention on remand was not disproportionate . It reasoned that , if the applicant were convicted , his sentence would exceed the length of the detention on remand so far , due to the serious nature of the crimes and the damages and injuries suffered by the victim . As to the length of the proceedings , ORG noted that there had been debates on whether to disjoin the applicant ’s case from the proceedings against his ORG co - accused , but the applicant had not seemed interested in speeding up the proceedings .", "On DATE ORG again dismissed the applicant ’s request to suspend the execution of the arrest warrant . On DATE ORG , following the applicant ’s appeal , confirmed its decision of DATE .", "On DATE ORG dismissed the applicant ’s further appeal and confirmed ORG decision of DATE .", "On DATE ORG rejected the applicant ’s request to dismiss his court - appointed defence counsel from office , as there was no appearance that the said counsel had not fulfilled his duties . It also found that the loss of trust alleged by the applicant and his counsel had not been substantiated .", "On DATE ORG was informed by ORG that the investigations in GPE with regard to the applicant ’s alibi by way of letters rogatory had not been carried out . The applicant stated that he would adduce CARDINAL defence witnesses , CARDINAL at each hearing .", "On DATE ORG rejected the applicant ’s motion for bias .", "On DATE one of the CARDINAL alibi witnesses from GPE who had been summoned by ORG through diplomatic channels following the alibi of DATE , appeared and testified in court .", "On DATE ORG dismissed the applicant ’s request to suspend the execution of the arrest warrant . It found that , if released , the applicant very likely would abscond , given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged . ORG noted that the applicant was residing illegally in GPE and that an expulsion order had been issued against him . It further observed that he had been about to abscond when he was arrested . Under these circumstances , the length of the applicant ’s detention on remand was not disproportionate . ORG included a detailed account of the trial , explaining the continued conduct of the proceedings , which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify . Furthermore , the applicant and his co - accused had , often later than necessary , filed numerous motions for evidence to be taken . It observed that at the present time , it was not possible to disjoin the applicant ’s case from the cases of the other defendants , as they were accused of having committed the offences jointly .", "On DATE ORG rejected the applicant ’s appeal against the decision of DATE . It found that the length of time spent in detention on remand alone did not justify releasing the applicant and that his continued detention was proportionate .", "On DATE ORG dismissed the applicant ’s request to suspend the execution of the arrest warrant on the ground that contrary to his allegations , suspicion persisted that the applicant had committed the crimes he was accused of . It was still likely that he would abscond if released , given in particular the high prison sentence he risked incurring if found guilty according to the indictment .", "On DATE the ORG refused to change its decision of CARDINAL DATE and forwarded the applicant ’s appeal to ORG . It noted that the applicant had caused some of the procedural delays himself by knowingly delaying the naming of defence witnesses .", "On DATE ORG rejected the applicant ’s appeal and confirmed the decision of DATE .", "On DATE the applicant lodged a complaint against the decisions of ORG of DATE and of ORG of DATE with ORG . He argued that his continued detention on remand , given , inter alia , the excessive duration of the trial before ORG , was unconstitutional .", "On DATE ORG had been informed that another CARDINAL defence witnesses from GPE refused to appear in court . The translated protocols of their hearing , which had been conducted by way of letters rogatory by judges in GPE , were read out in court .", "On DATE ORG refused to admit the applicant ’s constitutional complaint of CARDINAL DATE .", "On DATE the ORG pronounced its judgment after having held an average of CARDINAL hearings per month with an average duration of CARDINAL and a half hours each . It convicted the applicant of aggravated robbery and dangerous bodily injury and acquitted him of attempted murder . It found that the applicant and his co - accused PERSON , who had both been masked and had been carrying weapons , had broken into PERSON ’s house and had robbed PERSON by use of force . It sentenced the applicant to CARDINAL years’ imprisonment . In fixing the length of the sentence , ORG took into consideration as a mitigating factor the inordinate length of his detention on remand and of the criminal proceedings . It refered in particular to the delay occasioned by the sickness of the lay assessors and the ensuing suspension of proceedings , and stated that this delay was not imputable to the applicant .", "On DATE the applicant lodged an appeal on points of law against ORG judgment .", "On DATE ORG dismissed the applicant ’s request to suspend the execution of the arrest warrant . It argued that the applicant had been sentenced to DATE imprisonment and that his detention on remand was not yet disproportionate as he had not yet served CARDINAL of his prison sentence .", "On DATE ORG dismissed the applicant ’s appeal against ORG decision of CARDINAL DATE . It found that the danger that the applicant might abscond if released still persisted .", "On DATE the applicant lodged another complaint with ORG . He complained that ORG , in its decision of CARDINAL DATE , and ORG , in its decision of DATE , had refused to suspend the execution of the arrest warrant . In particular , the said courts had not taken the length of his detention on remand and of the criminal proceedings adequately into consideration .", "On DATE ORG refused to admit the applicant ’s constitutional complaint .", "On DATE the reasoned judgment of ORG , comprising CARDINAL pages , was deposited with its registry .", "On DATE ORG decided to suspend the execution of the arrest warrant against the applicant . On DATE the applicant was released from prison .", "On DATE the applicant substantiated his appeal on points of law . He argued , inter alia , that in its decision , ORG had not taken the length of the criminal proceedings adequately into account and had not specified the effects of this length on the sentence .", "On DATE ORG filed its observations on the applicant ’s appeal with ORG . On DATE ORG sent the case - files to ORG .", "On DATE ORG sent the case - files and his own motions concerning the applicant ’s appeal to ORG .", "DATE . On DATE ORG , after a hearing , partly quashed the judgment of ORG in respect of the applicant ’s sentence and remitted the case to a different chamber of ORG .", "In the reasons of the judgment prepared on DATE , ORG found that the duty to proceed expeditiously guaranteed by LAW had been violated at least during DATE second trial by ORG . It stated that the judges rehearing the case would have to assess in detail the reasons and exact length of these delays as well as further delays contrary to the rule of law which had occurred afterwards . They would then have to fix explicitly the sentence which would have been adequate without the delays in the proceedings and the actual sentence as mitigated because of these delays , thereby precisely assessing the amount of compensation granted .", "On DATE the ORG quashed the arrest warrant against the applicant .", "On DATE ORG opened the new trial against the applicant . On DATE , after a total of CARDINAL hearings , it sentenced the applicant to DATE and CARDINAL months’ imprisonment for the crimes of aggravated robbery and dangerous bodily injury he had already been finally convicted of . It suspended on probation the remainder of the applicant ’s sentence which he had not yet served in detention on remand .", "In its reasons for fixing the said prison sentence , ORG found that , having regard to all factors aggravating and mitigating the applicant ’s guilt , it would have sentenced the applicant to nine years’ imprisonment if the proceedings had been terminated within a reasonable time . However , the applicant ’s right under LAW to a hearing within a reasonable time had been violated in the proceedings against him , which necessitated the reduction of his sentence .", "ORG argued in particular that in the criminal proceedings as a whole there had been a total delay of DATE and DATE which was imputable to the judicial authorities . In particular , it was attributable to them that the initial trial before ORG had to begin anew after DATE , because a lay assessor had fallen ill .", "ORG further found that in the second trial before ORG , there had been a total delay of DATE for which the judicial authorities were responsible . It listed in detail the exact periods in which the proceedings had not been conducted within a reasonable time in this respect . As the courts were understaffed , it had in fact not been possible to conduct the proceedings more expeditiously , but this was not the applicant ’s fault . However , the applicant himself had also caused considerable delays in these proceedings . He had alleged for the first time only on DATE that he had been in GPE at the time of the offence , and had subsequently named numerous defence witnesses resident in GPE in an attempt to establish his false alibi . The court found that the slow execution of the letters rogatory by the foreign authorities to verify the applicant ’s alibi was also imputable to the NORP judicial authorities . Despite this , the applicant ’s choice of the points in time and way of lodging motions for evidence to be taken had contributed significantly to the total duration of the proceedings .", "Furthermore , ORG found that there had been a total delay of DATE in the proceedings before ORG which were imputable to the judicial authorities , notably ORG and ORG itself .", "Finally , ORG observed that there had been a delay of DATE in the current retrial proceedings .", "ORG further found that the delays caused during the second trial before ORG , when the applicant had already been detained on remand for DATE , were of a particular gravity . These delays also violated LAW .", "The applicant subsequently lodged an appeal on points of law against ORG judgment delivered on DATE .", "On DATE ORG dismissed the applicant ’s appeal as ill - founded . It reasoned in particular that in ORG findings concerning the specific delays in the proceedings there was merely a mistake for the benefit of the applicant . It argued that the illness of CARDINAL lay assessors in the first trial before ORG had caused an unavoidable interruption of the proceedings . The loss of time caused thereby could not be qualified as a delay within the meaning of LAW . Apart from that , ORG agreed with the periods of time determined by ORG in which the applicant ’s proceedings had not been conducted with the necessary diligence .", "As regards the delays caused by the retrial in ORG after the remittal of the case , ORG stressed that it had been correct merely to take into consideration the actual delays imputable to the judicial authorities . The right to lodge an appeal on points of law served to protect the applicant ’s rights . The fact as such that ORG judgment had partly been quashed on appeal did not , therefore , necessitate treating the whole duration of the retrial as a delay within the meaning of LAW . Only in cases in which a lower court had made a significant error of law a different conclusion might be called for . However , even if the whole duration of the retrial before ORG were to be treated as a delay imputable to the judicial authorities within the meaning of LAW , the total reduction of the applicant ’s sentence , having regard to the brutality of his crime , would be adequate .", "On DATE ( decision served on CARDINAL DATE ) ORG dismissed the applicant ’s complaint that he had not been adequately heard as ill - founded .", "On DATE the applicant lodged a complaint with ORG . He claimed that the length of his detention on remand and the length of the criminal proceedings against him had violated his rights guaranteed by LAW . The proceedings are currently pending in ORG ." ]

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[ "6-1" ]

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[ "The applicant was born in DATE . He currently lives in GPE , GPE .", "The applicant was born in GPE and had not permanently resided in any other country until his expulsion from GPE .", "The applicant completed his basic education in GPE in DATE in a school where the language of instruction was NORP . His knowledge of NORP was graded “ CARDINAL ” ( “ good ” ) at school .", "In DATE the applicant ’s mother died in GPE . She was buried in GPE .", "From DATE until DATE , from CARDINAL DATE until DATE and from CARDINAL DATE until DATE the applicant had temporary residence permits in GPE .", "In the meantime , in DATE , the applicant applied for , and was granted ( as a citizen of the former GPE ) , citizenship of GPE . According to the applicant , in DATE he attempted to acquire NORP nationality . However , he never made a formal request to that effect .", "NORP The applicant has CARDINAL criminal convictions in GPE :", "- on DATE ORG convicted him of aggravated hooliganism ( he had beaten a person in the street and later broken a door of an apartment and beaten its inhabitants together with CARDINAL co - defendants ) , aggravated theft and attempted theft ; he was sentenced to DATE imprisonment , suspended ;", "- on DATE ORG convicted him of attempted aggravated theft and violence against a police officer ( he had punched the officer in the face ) ; he was again sentenced to DATE imprisonment , suspended ;", "- on DATE the ORG convicted him of attempted aggravated theft ; he was given eight months’ imprisonment . Taking into account the earlier , unserved sentence , the court set the compound sentence to be served by the applicant at DATE and CARDINAL months’ imprisonment . It was noted in the judgment that in the course of DATE the applicant had been punished CARDINAL times for administrative offences of petty theft and consumption of narcotic substances .", "The applicant was released on DATE after serving his prison term .", "DATE until DATE the applicant was given CARDINAL punishments for misdemeanours ( illegal consumption or possession of narcotic drugs and travelling on public transport without a ticket ) .", "The applicant is HIV - positive and suffers from hepatitis C.", "In the meantime , on DATE , the applicant was arrested in GPE on suspicion of smuggling of drugs .", "On DATE he was convicted of aggravated drug smuggling by ORG in GPE . According to the judgment he smuggled CARDINAL Subutex pills over the NORP border . He was sentenced to DATE and CARDINAL months’ imprisonment and began serving his sentence in FAC in GPE . In addition , ORG decided that the applicant was to be expelled from GPE and to be subsequently prohibited from entering the country before DATE . The court was unable to verify the applicant ’s argument that he had a daughter in GPE since he declined to disclose the alleged daughter ’s or her mother ’s personal details such as their names and addresses .", "The applicant appealed against ORG judgment . However , since he subsequently withdrew his appeal , the ORG and Blekinge Court of Appeal struck the case out of its list of cases on DATE .", "In DATE the applicant requested the reopening of his case in GPE , arguing that because of the prohibition on entry imposed by the NORP court the NORP migration authorities had refused to extend his residence permit in GPE . He requested the removal of the deportation order from the judgment .", "On DATE the ORG and Blekinge Court of Appeal refused to reopen the case . On CARDINAL DATE ORG refused the applicant leave to appeal against that decision .", "On DATE the applicant was released from prison in GPE and deported to GPE .", "In the case file there are also copies of printouts from ORG , according to which the applicant was to be refused entry or stay in the LOC area until DATE ( this notice was entered into the system on DATE ) and later until DATE ( entered into the system on DATE ) . It appears that on CARDINAL DATE the NORP authorities extended the prohibition on the applicant ’s entry to the LOC area until DATE .", "In the meantime , on DATE , while in custody in GPE , the applicant applied for an extension of his residence and work permit from ORG ( Kodakondsus- ja GPE – hereinafter “ the Board ” ) .", "By a letter of DATE ORG informed the applicant that he would be denied an extension of his residence and work permit . He was requested to present his opinion and objections . In reply , the applicant asked for the ORG ’s letter to be translated into LANGUAGE or LANGUAGE since he did not have sufficient command of NORP and being in prison he could not have the ORG ’s letter translated . On DATE ORG sent the applicant a NORP translation of the letter . In his objections sent to ORG the applicant reiterated his request for a residence permit , saying that he wished to return to GPE after his release from prison in GPE . He submitted that he had been born and raised in GPE and that he had his father and brother in that country . In spite of his NORP nationality he had never lived in GPE and had no place of residence or relatives there . He was seriously ill and the treatment he would continue to need could be carried out only in GPE . His father also needed his support because of his age .", "On DATE the ORG refused to extend the applicant ’s residence and work permit . It had regard to the nature and severity of the offences committed by the applicant ( already mentioned above ) , the fact that his criminal record had not expired and that an alert had been issued for the purposes of refusing him entry into GPE countries , as well as the fact that he was serving a prison sentence in GPE . ORG considered that although the applicant had been born in GPE and his father and brother lived in GPE , he did not have a family life in that country . It further considered that the applicant could continue his treatment in GPE . ORG found no exceptional circumstances that required extending his residence permit . In conclusion , ORG considered that the refusal to extend the applicant ’s residence permit was a proportionate measure for pursuing the aim of protecting the constitutional rights of others .", "The applicant lodged a complaint against the ORG ’s refusal with ORG . He argued that the decision of ORG had been insufficiently reasoned and that the refusal infringed his right to respect for family life . At ORG hearing the applicant was represented by his father and a legal advisor .", "By a judgment of DATE ORG dismissed the applicant ’s complaint . It found that the ORG ’s refusal was lawful . The court agreed with ORG finding that the applicant ’s criminal behaviour posed a threat to public safety . Furthermore , the prohibition on entry into the GPE area imposed by the NORP authorities also extended to GPE .", "ORG considered that the ORG ’s decision did not infringe on the applicant ’s right to respect for family life . It noted that the applicant was divorced and had no partner or children . His father lived with his partner at the latter ’s residence . The applicant ’s brother had a family of his own . The court concluded that the applicant did not have a family life to be protected in GPE . The court also dismissed the applicant ’s arguments related to the advanced age of his father who was DATE , to the applicant ’s illness and the fact that he had been born in GPE . It found that there were no exceptional circumstances to justify the extension of his residence permit .", "On DATE the applicant was transferred from GPE to GPE .", "On DATE the applicant began living with ORG , a person of undetermined citizenship who held a permanent residence permit in GPE , as his partner .", "On DATE the applicant sought permission from ORG to be allowed , by way of exception , to submit an application for a residence permit with the ORG directly instead of submitting it to a foreign representation of GPE . On DATE the ORG refused to grant the permission and declined to consider his application for a residence permit .", "On DATE the ORG heard the applicant ’s appeal against ORG judgment . The ORG ’s representative submitted that based on humanitarian considerations the applicant ’s expulsion procedure had not been initiated because of the ongoing court proceedings concerning his residence permit .", "On DATE ORG upheld ORG judgment of DATE . It noted , inter alia , that under section CARDINAL(CARDINAL - CARDINAL ) of LAW ( PERSON seadus ) a temporary residence permit could be issued , by way of exception , to an alien in respect of whom a prohibition on entry into the LOC area had been issued . ORG and ORG had considered whether making such an exception had been justified in the present case but had found that this had not been warranted in the circumstances . ORG also noted that the applicant had not turned to the NORP authorities in order to have the period of validity of the prohibition on entry into the LOC area amended as stipulated by the LAW to Leave and Prohibition on Entry Act ( Väljasõidukohustuse ja sissesõidukeelu seadus ) .", "The Court of Appeal further noted that the refusal to extend the applicant ’s residence permit during his imprisonment in GPE had had no bearing on his private life because the DATE residence permit that was usually granted in such circumstances would have expired before the end of the applicant ’s prison term in GPE . During the time of the service of the prison sentence the applicant ’s right to private life had been restricted by the execution of the sentence and it had not been dependent on the granting or refusal of a residence permit in GPE .", "ORG also noted that ORG had considered the possibility of the applicant ’s early release from prison and his expulsion in such case . It agreed with the ORG ’s preliminary assessment that the applicant ’s expulsion was not excluded and that he could reside in the country of his nationality .", "On DATE ORG declined to hear the applicant ’s appeal .", "By a letter of CARDINAL DATE the Police and ORG ( Politsei- ja Piirivalveamet ) asked the applicant to come to its offices on DATE so that the circumstances of his stay in GPE could be clarified and an order ( ettekirjutus ) be made .", "On an unspecified date the applicant left GPE for GPE where he stayed for DATE , according to a statement from ORG to the ORG . He was then arrested in GPE and on DATE the NORP authorities made a request to their NORP counterparts concerning the applicant ’s deportation to GPE . However , his deportation on DATE as agreed by the authorities did not take place since the applicant had escaped from them while in GPE . He arrived in GPE on DATE via a passenger port .", "On DATE the applicant was arrested by the police . He was under the influence of narcotic drugs and presented an identity card of his brother , who was an NORP national . The applicant was taken into custody . On DATE he was fined for a breach of ORG NORP ja psühhotroopsete ainete ning nende lähteainete seadus ) .", "NORP In the meantime , on DATE the Police and ORG issued an expulsion order ( ettekirjutus ORG lahkumiseks ) in respect of the applicant . The order was immediately enforceable on the basis of section CARDINAL - CARDINAL(CARDINAL)(CARDINAL ) of the LAW to Leave and Prohibition on Entry Act ( Väljasõidukohustuse ja sissesõidukeelu seadus ) . In addition , a DATE prohibition on entry was imposed on the applicant . Pursuant to sections CARDINAL(CARDINAL ) and QUANTITY ) of the above LAW , the expulsion order was given by means of a standard form and it only revealed its legal basis without containing the factual basis , related circumstances or relevant considerations .", "On DATE ORG authorised the applicant ’s detention in a deportation centre until his expulsion , but for not DATE . This authorisation was later extended until DATE .", "The applicant challenged the expulsion order and prohibition on entry before ORG .", "In DATE the applicant made inquiries by phone and electronic mail to a public notary about the possibility to get married while in detention .", "On CARDINAL DATE the applicant applied for an interim measure and requested that his expulsion be stayed . On DATE ORG dismissed the request . An appeal was dismissed by ORG on DATE .", "In the meantime , on CARDINAL DATE the applicant was expelled to GPE . He stayed with a distant relative in GPE , GPE , for DATE and then lived on the street for some time . His request for medicines against HIV was granted by the local authorities although CARDINAL of the medicines he had used in GPE was not available in GPE . In DATE he moved to GPE where he was able to find temporary non - registered accommodation and unofficial employment .", "In the meantime , on DATE , the applicant ’s lawyer sought to amend the complaint lodged with ORG . She challenged the applicant ’s actual expulsion and requested that the ORG be obliged to allow the applicant to return to the country . ORG initially registered these complaints as a separate set of proceedings but , following instructions from ORG , it later joined the cases and proceeded to examine the new complaints . By a judgment of DATE ORG dismissed the complaints . It held that the expulsion order was lawful under sections DATE ) and CARDINAL ) of the LAW to Leave and Prohibition on Entry Act , as argued by LAW , and that the DATE prohibition on entry was lawful as well . Consequently , the complaint concerning the actual expulsion and the claim to be allowed to return to the country were also dismissed . According to the applicant he has instructed his lawyer to appeal against the judgment .", "Section CARDINAL(CARDINAL ) of LAW ( PERSON seadus ) , as in force at the material time , listed the instances in which a residence permit could not be issued or extended . Section CARDINAL(CARDINAL)(CARDINAL ) provided that a permit could not be issued or extended if the alien applying for it had been convicted of a criminal offence and sentenced to imprisonment for a term exceeding one year and his or her criminal record had neither expired nor been expunged , or the information concerning the punishment had not been expunged from the punishment register . Section CARDINAL(CARDINAL)(CARDINAL ) provided that a residence permit be denied to persons who had been repeatedly punished for intentional criminal offences .", "Section CARDINAL(CARDINAL ) of LAW provided that , by way of exception , a temporary residence permit could be issued or extended for aliens falling under the above provisions , if this was not excluded on other grounds referred to in the same provision .", "Section CARDINAL(CARDINAL - CARDINAL ) of LAW provided that a residence permit could not be issued or extended in respect of an alien for whom an alert for the purposes of refusing entry had been issued by a ORG belonging to the common visa area of ORG and such an alert had been introduced into ORG in accordance with LAW . By way of exception , a temporary residence permit could be issued or extended on humanitarian grounds or by reason of international commitments .", "Section CARDINAL - CARDINAL(CARDINAL)(CARDINAL ) of the LAW to Leave and Prohibition on Entry Act ( Väljasõidukohustuse ja sissesõidukeelu seadus ) provides that no term for voluntary compliance with the obligation to leave is assigned in the expulsion order and it shall be enforced immediately if the order is made in respect of an alien who has arrived in GPE illegally . Section CARDINAL - CARDINAL(CARDINAL)(CARDINAL ) provides that the same applies to an alien in respect of whom a prohibition on entry has been imposed .", "Section CARDINAL - CARDINAL(CARDINAL ) of the LAW to Leave and Prohibition on Entry Act provides that in order to amend the period of validity of the prohibition on entry into the LOC area the alien is required to turn to a member ORG of ORG applying the prohibition on entry .", "In a judgment of CARDINAL DATE ( case no . CARDINAL ) ORG of ORG found that upon issuing an expulsion order in the case in question the migration authorities had not been required to assess whether the person concerned posed a threat to the national security . An assessment related to the possible infringement of the complainant ’s right to respect for his family life had had to be carried out when the question whether to grant him a residence permit had been dealt with .", "Recommendation Rec(CARDINAL)CARDINAL of ORG to member GPE concerning the security of residence of long - term migrants states , inter alia :", "“ CARDINAL . As regards the protection against expulsion", "a. Any decision on expulsion of a long - term immigrant should take account , having due regard to the principle of proportionality and in the light of ORG Rights’ constant case - law , of the following criteria :", "– the personal behaviour of the immigrant ;", "– the duration of residence ;", "– the consequences for both the immigrant and his or her family ;", "– existing links of the immigrant and his or her family to his or her country of origin .", "b. In application of the principle of proportionality as stated in paragraph ORG , member PERSON should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long - term immigrant . More particularly , member GPE may provide that a long - term immigrant should not be expelled :", "– after DATE of residence , except in the case of a conviction for a criminal offence where sentenced to in excess of CARDINAL years’ imprisonment without suspension ;", "– after DATE of residence , except in the case of a conviction for a criminal offence where sentenced to in excess of DATE of imprisonment without suspension .", "After DATE of residence , a long - term immigrant should no longer be expellable .", "c. Long - term immigrants born on the territory of the member state or admitted to the member state before DATE , who have been lawfully and habitually resident , should not be expellable once they have reached DATE .", "Long - term immigrants who are minors may in principle not be expelled .", "d. In any case , each member state should have the option to provide in its internal law that a long - term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety . ”" ]

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[ "Mr. PERSON , a NORP citizen born in DATE , resides in GPE ( GPE of GPE ) . On DATE , after he had been hiding from the police for some time , he gave himself up .", "He was at once brought before the GPE District Attorney ( GPE ) . The latter heard Mr. PERSON without his lawyer being present and then , on DATE , made an order directing that Mr. PERSON be placed in detention on remand ( ORG ) . The District Attorney strongly suspected that the applicant had committed or attempted to commit several offences of aggravated theft and feared that he might suppress evidence ( DATE , sub - paragraph a ) , of LAW , hereinafter referred to as ORG ) .", "Mr. PERSON lodged an appeal ( PERSON ) against the above - mentioned order but it was dismissed by ORG ( Staatsanwalt ) on DATE . ORG , adopting the grounds relied on by the District Attorney , stated that the investigations had not been completed and that there was reason to believe that the applicant , who had no fixed abode in GPE , might abscond .", "Mr. PERSON filed a \" public - law appeal \" with ORG , alleging that ORG decision was contrary to LAW CARDINAL ( c ) and CARDINAL ( article CARDINAL - CARDINAL-c , article CARDINAL ) of the Convention . He described as arbitrary the statement that he might suppress evidence and questioned whether the District Attorney was an \" officer authorised by law to exercise judicial power \" , within the meaning of Article CARDINAL para . CARDINAL ( article CARDINAL ) .", "By a judgment of DATE , ORG ) rejected the appeal . It accepted that there were reasons to believe that the applicant might suppress evidence if he were released . It also considered that , since the circumstances clearly gave rise to a suspicion that the applicant had committed thefts , there was no violation of Article CARDINAL para . CARDINAL ( c ) ( article QUANTITY ) . As regards Article CARDINAL para . CARDINAL ( article CARDINAL ) , ORG , having noted that there was a difference of opinion amongst legal writers over the interpretation of this provision , stated :", "\" The main criterion for classifying a given activity as ‘ judicial’ is the independence which the bodies acting in that capacity enjoy vis - à - vis other ORG authorities and other persons entrusted with functions relating to the administration of justice as well as vis - à - vis institutions and organisations in the public sector ...", "However , the text of LAW para . CARDINAL ( article CARDINAL ) of the LAW demonstrates that it does not see the attributes of a judge or judicial independence in terms of the principle of separation of powers .... The only possible interpretation of this LAW is that even bodies which are administrative by reason of their position meet the Convention ’s requirements to the extent that they exercise judicial functions , that is act independently when giving decisions in that capacity . Thus , according to LAW ( article CARDINAL ) ... , what is above all decisive is not the place held in the organisation of the ORG but rather the function to be exercised . In other words , that provision does not in principle preclude the simultaneous exercise by CARDINAL and the same person of different functions , namely functions relating to investigation as well as functions in other areas of the administration of criminal justice ... \"", "In support of this interpretation , ORG pointed out that , unlike paragraph CARDINAL ( article CARDINAL ) , paragraph CARDINAL of Article CARDINAL ( article CARDINAL - CARDINAL ) uses the word \" court \" . A further argument was derived from Article CARDINAL para . CARDINAL ( article CARDINAL ) :", "\" There is good reason to suppose that , had the authors of the ORG wished to confer on an accused such an extensive guarantee as regards the independence and impartiality of the competent authority , they would have utilised in LAW CARDINAL ( article CARDINAL ) wording identical to that in Article CARDINAL para . CARDINAL ( article CARDINAL ) \" , namely \" an independent and impartial tribunal \" .", "Turning to the powers of the District Attorney , ORG noted that he is both an investigating authority ( Ermittlungs- PERSON ) , under the supervision of ORG , and - in cases before a single judge or ORG – a prosecuting authority . In the present case , the District Attorney had acted as an investigating authority in which capacity DATE stop required him to be equally thorough in gathering evidence in favour of and evidence against the accused . From this ORG concluded :", "\" It is of little consequence that the District Attorney is incorporated in the administrative hierarchy and thus constitutes an administrative authority by reason of his position in the organisation of the ORG .... At the investigation stage , he in fact fulfils a judicial function and exercises no administrative activity .... Moreover , the rule on the election of ORG by the people ... shows that the legislature wished to secure for this body a measure of independence vis - à - vis the executive and the administration even as regards the procedure for appointment .", "This view is not contradicted by the fact that , during the investigation , LOC ORG may receive from ORG directives concerning either the exercise of his activities in general or a specific case ( opening , conduct and closure of the investigation ) .... What is decisive is that , when acting as a supervisory body during the investigation , ORG as well is carrying out a judicial function of investigation ; it is only if and when the case is sent for trial that that ORG assumes its role of prosecutor and thereby becomes a party to the proceedings . \"", "On DATE , the President of ORG ( Anklagekammer ) of the GPE of ORG ( Obergericht ) decided that Mr. PERSON should remain in detention until the following DATE The applicant appealed without success , firstly to FAC , which confirmed the President ’s order on DATE , and then to ORG , which dismissed his \" public - law appeal \" on DATE .", "Mr. PERSON ’s detention on remand had in the meantime been prolonged pursuant to LAW . He was eventually released on DATE .", "In view of the gravity of the charges against the applicant ( thefts to a value of DATE ) the GPE of ORG had jurisdiction in the matter ; the indictment therefore had to be drawn up by ORG which represented the prosecuting authorities at the trial ( see paragraph CARDINAL below ) . The investigation , on the other hand , had been conducted by an GPE Attorney .", "On DATE , ORG imposed on Mr. PERSON a sentence , suspended for DATE , of CARDINAL months’ imprisonment for professional theft as a member of a gang ( LAW ) .", "The GPE of GPE is divided into CARDINAL districts , each of which has a ORG with CARDINAL or more Attorneys . At the relevant time , the status and powers of ORG were laid down in LAW of DATE ( PERSON , hereinafter referred to as ORG ) ; an LAW of DATE , which entered into force on DATE , has since replaced , and in substance re - enacted the provisions of , LAW .", "Ordinary District Attorneys are elected by universal suffrage for a term of office fixed by LAW at DATE ( section CARDINAL ORG ) and increased by LAW to DATE . Although any citizen may stand for election , candidates are most often lawyers who have completed university studies and received practical training in the courts , industry , the civil service or the legal profession . If necessary , ORG appoints GPE for a specified period ( sections CARDINAL and CARDINAL ORG ) .", "The District Attorney is subordinate to ORG who in turn comes under the authority of ORG and ORG ( NORP ) of the GPE of GPE . The District Attorney is the prosecuting authority before the single judge in criminal matters and before FAC in cases concerning petty offences and misdemeanours ; before the higher Cantonal courts ( ORG and ORG - section CARDINAL ORG ) , this function is performed by ORG . The District Attorney also has power to issue a punishment order ( NORP ) if the accused has admitted his guilt and if a fine ( GPE ) or a prison sentence of not DATE is deemed sufficient ( LAW ) ; however , the person concerned is entitled to enter an objection ( ORG ) to the punishment order , as is ORG ( Article CARDINAL StPO ) .", "The investigation of criminal cases comes within the competence of the prosecuting authorities ( section CARDINAL ORG ) . The District Attorney conducts the investigation except in those cases where it is entrusted by law to ORG or a judge ( LAW ) . The LOC Attorney may issue a warrant for arrest ( MONEY CARDINAL ORG ) , the grounds for which he must indicate ; he has to hear an arrested suspect within TIME ( FAC ) . During this first interrogation , at which the suspect ’s lawyer is not normally present , the suspect must be clearly informed of the reasons prompting the suspicions held against him ( Article CARDINAL ORG ) and of the existence of a right of appeal against the warrant ( DATE Circular from ORG ) . Directive no . CARDINAL ( Collection of Circulars from ORG to ORG , DATE - Sammlung der ORG der Staatsanwaltschaft an die Bezirksanwaltschaften von CARDINAL ) specifies that this interrogation is not to be considered as a pure formality . Under Directive no . DATE , the District Attorney is prohibited from delegating his power to interrogate to subordinate officials .", "Detention on remand ordered by LOC may not exceed DATE ; this period may be extended by the President of ORG or , in cases coming within the jurisdiction of ORG , the President of ORG ( Article CARDINAL ORG ) .", "The District Attorney remains under the control of ORG as regards both the opening and the conduct of the investigation . ORG is authorised to issue directives to him ( LAW ) and must be kept informed of every serious offence ( Directive no . CARDINAL ) . ORG or ORG of the GPE of GPE may request ORG to submit a report on the opening and the conduct of criminal proceedings ( NORP ) and may give him special orders and instructions ( besondere PERSON und Weisungen - Article QUANTITY StPO ) . A report must be made to ORG whenever proceedings having political significance are instituted ( LAW ) .", "In addition , ORG ( erster FAC ) carries out inspections DATE ; their sole purpose is the expedition of proceedings .", "For DATE now , ORG in practice receive no special orders or instructions from ORG concerning their powers of placing individuals in detention .", "Once the investigation is closed , any District Attorney contemplating the release of an accused must so inform ORG if the prosecution falls within the latter ’s competence ( Directive no . CARDINAL ) .", "Assuming that the prosecution has not been discontinued , LOC , or ORG , becomes a party to the criminal proceedings ; when drawing up the indictment , he must however take into account items in the accused ’s favour and not confine himself to stressing items that tell against him ( LAW ) ." ]

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[ "5" ]

[ "5-3" ]

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[ "NORP The applicant in the first case , Mr PERSON ( “ the first applicant ” ) , was born in DATE . The applicant in the second case , Mr PERSON ( “ the second applicant ” ) , was born in DATE . Both applicants are NORP nationals , currently live in GPE and were represented before the Court by PERSON and Mr PERSON , lawyers practising in GPE .", "On DATE the ORG convicted the applicants , who were co - founders of and shareholders in a private media company , of conspiracy to commit extortion . The first applicant was sentenced to DATE and the second applicant to DATE in prison ( for more details concerning the criminal proceedings , see PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ) .", "On DATE ORG upheld the conviction .", "On DATE ORG of GPE , sitting privately , declared the ORG appeal against the conviction on points of law inadmissible on the ground that it lacked significant legal content . The criminal proceedings were thus finally terminated .", "As submitted by the applicants and confirmed by a postal receipt , the final decision of DATE was served on them in NORP no . CARDINAL Prison , where they were serving their sentences at that time , on DATE .", "On DATE application forms were lodged with the ORG on behalf of the applicants . The forms were signed only by the ORG representatives and did not include authority forms issued by the applicants for their representation before the ORG .", "On DATE as regards the first applicant ’s case , and on DATE as regards the second applicant ’s case , the ORG , using a standard form of preliminary correspondence , brought the representatives’ attention to the fact that the applications could not be considered to be complete , as they had neither been signed by the applicants in person nor supplemented by authority forms issued by them . The ORG invited the representatives to submit the missing authority forms without undue delay , on pain of leaving their cases without examination .", "On DATE the representatives submitted an authority form signed by the second applicant , Mr PERSON . The accompanying letter did not contain any explanation for the delay .", "With respect to the first applicant ’s case , on DATE the ORG sent a second reminder to the representatives that the registration of the application could not be proceeded with in the absence of an authority form issued by the applicant . In reply , by a letter of DATE , the representatives finally submitted an authority form signed by PERSON PERSON . No explanation for that delay was given either ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the NORP State Attorney ’s Office ( Općinsko državno odvjetništvo u Daruvaru ) filed a bill of indictment against the applicant in ORG ) charging him with violation of copyrights in that he had used various items of computer software without the consent of the holders of the relevant licence . In the proceedings the applicant was represented by legal counsel of his own choosing . At a hearing held on DATE the applicant gave his evidence . At a hearing held on DATE ORG heard evidence from the witnesses nominated by the defence and gave a judgment acquitting the applicant of all charges . However , this judgment was quashed on DATE by ORG , upon an appeal lodged by the prosecution .", "In the resumed proceedings before ORG an expert opinion was obtained . At the first hearing held on DATE the applicant again gave his evidence , in the presence of his chosen counsel . The next hearing , scheduled for DATE , was adjourned on a request by the applicant ’s counsel who explained , in a submission filed on DATE , that he had already planned a journey on DATE . The hearing scheduled for DATE was adjourned on account of the illness of the presiding judge .", "According to the applicant , before a hearing scheduled for DATE his counsel contacted ORG by telephone and asked for an adjournment on account of his sudden illness .", "At the beginning of the hearing the applicant asked that the hearing be adjourned and informed the court that he did not wish to defend himself in the absence of his counsel . The presiding judge , however , decided to hold the hearing . A counsel for the prosecution was also absent . The applicant , who had already given evidence at the previous hearings , gave additional evidence . The applicant ’s request that further witnesses be heard was dismissed . The applicant then gave his closing arguments . The hearing was concluded and a judgment was pronounced . The applicant was found guilty of using various items of computer software without the consent of the holder of the relevant licence . He was given a suspended sentence of CARDINAL months’ imprisonment with a DATE probation period .", "In an appeal lodged on DATE the applicant complained , inter alia , that the hearing of CARDINAL March CARDINAL had been held in the absence of his counsel although there had been a good reason for the latter ’s absence . He asserted that on TIME his counsel had contacted ORG by telephone . His call had been answered by an usher and the counsel had asked to speak to the presiding judge . However , the judge had not answered the call . Therefore , the counsel had asked the usher , PERSON , to inform the presiding judge about his inability to attend the hearing owing to his sudden illness . The usher had done so . The counsel ’s request that the hearing be adjourned on account of his sudden illness had not been noted in TIME of the hearing . The applicant enclosed a medical certificate for his counsel , of DATE , indicating that he had been given sick leave as of that date .", "On DATE ORG ( PERSON u GPE ) upheld the first - instance judgment . It found that the presence of the applicant ’s counsel at the hearing held on DATE had not been necessary . The relevant part of the appellate judgment reads as follows :", "“ The ground for appeal raised by the defendant that the first - instance court had made a grave breach of the rules of LAW , Article CARDINAL ) , when it held a hearing in the absence of the defendant ’s counsel , this court finds unfounded . The facts established in TIME of the hearing held on DATE lead to the conclusion that , although the defendant requested the adjournment of the hearing on account of the justified absence of his counsel , the first - instance court assessed that the counsel ’s absence was not detrimental to the defence and therefore held a hearing and on DATE adopted a first - instance judgment . The conduct of the first - instance court has to be viewed in the light of a [ possible ] violation of the defence rights and an assessment of its effect on the judgment adopted [ by the first - instance court ] has to be made . The new facts presented by the defendant at that hearing , on account of which he asked for an adjournment claiming that his counsel was in possession of fresh evidence in connection with the purchase and the price of the “ Autocad ” software , could not have been of decisive importance for the crime [ at issue ] as such . That is because the [ first - instance ] court found the defendant guilty of the principal criminal offence under LAW in respect of which it is not relevant whether it resulted in significant financial gain or significant damage . Exactly for that reason the absence of the defence counsel at the hearing could not have been of influence for the adoption of the impugned judgment and its legality . ”", "The applicant ’s subsequent constitutional complaint was dismissed on DATE by ORG ( Ustavni sud PERSON ) as being ill - founded .", "NORP The relevant part of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) provides as follows :", "“ ( CARDINAL ) The defendant has the right to defend himself or herself in person or through a legal counsel of his or her own choosing among the members of the Bar ...", "... ”", "“ After the evidence has been heard the president of the chamber shall allow the parties , the victim and defence counsel to present their closing arguments ... ”", "“ ( CARDINAL ) Defence counsel or the defendant personally shall present in their closing arguments the [ main points of ] the defence and may reply to the arguments of the [ prosecution ] and the victim .", "... ”", "Pursuant to LAW , where the defendant requests an amendment of a final judgment following a finding of a violation of , inter alia , the right to a fair trial , by ORG , the rules governing a retrial shall apply .", "Article CARDINAL ) of LAW ( PERSON zakon PERSON , ORG nos . CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL/CARDINAL , CARDINAL and CARDINAL ) proscribes the criminal offence of unauthorised use of an authorship , carrying a punishment of a fine or imprisonment for a term not exceeding DATE ." ]

[ "6" ]

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

[ "6-3-c" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and who lives in GPE , GPE .", "On DATE the applicant was arrested on suspicion of being a member of an organised criminal gang , tax fraud , perjury and other related offences .", "On DATE ORG ( Sąd Rejonowy ) remanded him in custody . That decision was justified by the strong evidence against the applicant , the gravity of the offences with which he had been charged and the severity of the penalty which could be imposed if convicted . In addition , the court relied on the risk that the applicant would induce witnesses to give false testimony and also go into hiding if released . The latter ground was justified in the light of the fact that the applicant did not have a fixed residence prior to his arrest .", "It appears that the applicant ’s interlocutory appeal against the above detention order was dismissed on DATE .", "Subsequently , the applicant ’s pre - trial detention was extended by the decisions of ORG issued on DATE , DATE and DATE , DATE , DATE and DATE and by the decisions of ORG ( PERSON ) issued on DATE and DATE and DATE .", "The domestic courts relied on the original grounds for the applicant ’s detention . In addition it was noted that the proceedings were complex and involved a large number of witnesses and voluminous evidence . The investigating authorities had to obtain expert reports on accountancy , finance and forensics . Lastly , it was noted that new aspects of the alleged criminal activities of the applicant were being revealed in the course of the progressing investigation .", "On DATE the prosecutor lodged a bill of indictment against the applicant and his CARDINAL alleged accomplices with ORG . The applicant was indicted of numerous counts of tax fraud , money laundering and perjury , allegedly committed within an organised criminal gang .", "The first hearing took place on DATE . It appears that since then the trials have been taking place once a DATE or more frequently .", "Pending trial , the applicant ’s detention was extended by ORG decisions of DATE and DATE .", "The applicant or his lawyer challenged a number of decisions to extend his detention . It appears that an interlocutory appeal was not brought against CARDINAL of those decisions . The interlocutory appeals lodged by the applicant ’s lawyer against the decisions of DATE , CARDINAL May and CARDINAL DATE were rejected by ORG on DATE and CARDINAL unspecified dates respectively . Likewise , the applicant ’s request for release was rejected by ORG on DATE .", "On DATE the ORG released the applicant from detention , placing him under police supervision ( dozór policyjny ) . The court considered that keeping the applicant in detention was no longer necessary since the majority of witnesses had already been examined by the trial court and in the light of the fact that the applicant had been recently registered at a fixed residence address .", "It appears that the criminal proceedings against him are currently pending .", "In parallel to his pre - trial detention subject of the instant application , the applicant served CARDINAL separate prison sentences imposed on him by a competent criminal court . The CARDINAL prison terms amounted to DATE , DATE and DATE . And thus from DATE until DATE the applicant was serving a sentence imposed on him by ORG in its judgment of CARDINAL DATE and from CARDINAL DATE until DATE the applicant was serving a sentence , which was imposed on him by the same court in its decision of DATE .", "The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ." ]

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[ "5" ]

[ "5-3" ]

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[ "The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by PERSON PERSON , a lawyer practising in GPE .", "The applicant is a NORP priest belonging to the ecclesiastical jurisdiction of the ORG of PERSON . On DATE the bishop exempted the applicant from his duties as president of the ecclesiastical council of his parish .", "Following this incident the applicant asked his bishop to allow him to transfer to ORG , the head of which was willing to have him . However , the Bishop of PERSON refused without giving any reasons . The Bishop of PERSON also instituted disciplinary proceedings against the applicant before the local ecclesiastical tribunal on the ground that he had stopped publishing a journal .", "On DATE the Bishop of PERSON ordered the applicant not to celebrate mass pending the outcome of the disciplinary proceedings . On DATE the applicant challenged the bishop ’s decision before ORG .", "On DATE the applicant retired by virtue of a decision of the competent ORG authorities . However , the ORG of PERSON continued refusing him permission to transfer to another bishopric in which he could continue to act as a priest on an unremunerated basis .", "On DATE the ecclesiastical court of ORG ordered the applicant , by way of disciplinary penalty , to refrain from all activities as a priest during DATE .", "On DATE the applicant challenged the refusal of the bishop to give him permission to transfer to GPE before the multi - member first instance civil court ( polimeles protodikio ) of GPE .", "On DATE ORG quashed the decision of DATE of the Bishop of PERSON on the ground that it was issued without the applicant having been heard .", "On DATE the public prosecutor of the first instance criminal court ( isangeleas plimmeliodikon ) of GPE refused to institute criminal proceedings against the ORG of PERSON , as the applicant had requested him to do , finding , inter alia , that the refusal of the bishop to grant the applicant permission to transfer was not subject to review .", "On DATE the public prosecutor of ORG ( isangeleas efeton ) of GPE upheld the decision of DATE of the public prosecutor of the first instance criminal court .", "On DATE the civil court of GPE decided that it could not review the refusal of the bishop to give the applicant permission to transfer because this was a “ spiritual ” matter .", "On DATE the ecclesiastical court of ORG found , inter alia , that the applicant had defied its previous decision of DATE because he had celebrated mass with the permission of the local bishops in other bishoprics on specific occasions . It ordered the applicant , by way of disciplinary penalty , to refrain from all church activities during DATE . The applicant challenged this decision before ORG . The proceedings before ORG are still pending .", "In the meantime the Bishop of PERSON instituted a fresh set of disciplinary proceedings against the applicant on the ground that he had given an interview to the press . On DATE the ecclesiastical court of ORG referred the case to ORG first instance court ( ORG ) .", "On DATE the Bishop of PERSON ordered the applicant not to celebrate mass pending the outcome of the disciplinary proceedings ." ]

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[ "The applicant was born in DATE and lives in GPE .", "NORP In DATE the then ORG of the Municipality of Gostivar expropriated , inter alia , a plot of a construction land ( “ the property ” ) from the applicant 's late father with the stated aim of building a nursery school . Compensation was to be determined by a separate decision .", "On DATE the applicant requested the then ORG , in non - contentious proceedings , to award him compensation according to the market value of the property . CARDINAL other persons joined these proceedings .", "On DATE ORG ( “ the first - instance court ” ) upheld the applicant 's request and ordered GPE to compensate him for the expropriated property . It further dismissed his request against the State for lack of standing . On DATE ORG quashed that decision arguing , inter alia , that the lower court had incorrectly specified the award .", "DATE and DATE ORG ordered retrial on CARDINAL occasions .", "On DATE the first - instance court awarded the applicant compensation in the amount specified by an expert and ordered its joint payment by the ORG and the nursery school . It also ordered that the latter reimburse the applicant for his legal costs .", "On DATE ORG upheld the lower court 's decision in respect of the awarded compensation and remitted the remainder for a fresh consideration .", "On DATE the Solicitor General submitted an appeal on points of law before ORG . On DATE the applicant submitted his observations in reply .", "On DATE the applicant sought enforcement of ORG decision of DATE . He proposed that the award be transferred to his bank account . On DATE the first - instance court requested the applicant to pay the court fees .", "On DATE the public prosecutor lodged a request for protection of legality with ORG .", "On DATE the applicant again requested enforcement of his claim established by the court decision of CARDINAL DATE . His request was granted on DATE .", "On DATE the applicant and the ORG concluded an out - of - court settlement ( вонсудска спогодба ) ( “ the settlement ” ) under which the ORG undertook to recognise the applicant 's title to the property ( право на сопственост ) ; to register him as a co - owner in the land registry ; and to withdraw extraordinary remedies submitted on its part . The applicant agreed to withdraw his request for enforcement and to refrain from claiming any payment in respect of the above decisions .", "The enforcement proceedings were terminated by a decision of ORG of DATE .", "Notwithstanding the settlement , the request for the protection of legality was not withdrawn . On DATE ORG granted this request and quashed the lower courts ' judgments in respect of the awarded compensation . The court dismissed the applicant 's objection that the above request should be rejected as the parties have concluded the settlement . It held that the lower courts did not give sufficient reasons in their judgments and that it was not clear who was required to pay the compensation . The court , however , rejected the appeal on points of law lodged by the Deputy Solicitor General as it found that both parties withdrew their submissions stating that they have settled .", "The proceedings resumed before the first - instance court . On a hearing held on DATE , the applicant confirmed that the property had been restored to him and withdrew his compensation claim . The first - instance court acknowledged the withdrawal ." ]

[ "6" ]

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[ "ORG Mr PERSON was born in DATE . He is an NORP citizen . He is now , and has been since DATE , a lecturer in LANGUAGE at ORG , GPE . At present he sits in the second chamber ( PERSON ) of ORG , being one of the CARDINAL Senators elected by the graduates of ORG .", "ORG Mr PERSON is an active homosexual and has been a campaigner for homosexual rights in GPE since DATE ; in DATE he became a founder member and chairman of ORG . His complaints are directed against the existence in GPE of laws which make certain homosexual practices between consenting adult men criminal offences .", "ORG In DATE the applicant instituted proceedings in ORG ( see paragraphs CARDINAL - CARDINAL below ) claiming that the impugned laws were no longer in force by reason of the effect of LAW , which declared that laws passed before LAW but which were inconsistent with it did not continue to be in force . Evidence was given of the extent to which the applicant had been affected by that legislation and had suffered interference with his right to respect for private life . Salient points in this evidence were summarised as follows :", "( i ) The applicant gave evidence of having suffered deep depression and loneliness on realising that he was irreversibly homosexual and that any overt expression of his sexuality would expose him to criminal prosecution .", "( ii ) The applicant claimed that his health had been affected when in DATE he fainted at a GPE restaurant and was sent to ORG for tests which resulted in his being referred to a psychiatrist . He was under the psychiatric care of Dr. PERSON for a period in excess of DATE . Dr. PERSON ’s advice to the applicant was that , if he wished to avoid anxiety attacks of this kind , he should leave GPE and live in a country where the laws relating to homosexual behaviour had been reformed . Dr. PERSON stated in evidence that the applicant was in a normal condition at the time of the first consultation . He did not recall being made aware of a history of collapse .", "( iii ) No attempt had been made to institute a prosecution against the applicant or the organisation of which the applicant was then the chairman ( see paragraph CARDINAL above ) . The applicant informed the police authorities of his organisation ’s activities but met with a sympathetic response and was never subjected to police questioning .", "( iv ) The applicant had participated in a television programme on ORG , the ORG broadcasting company , in or DATE . The programme consisted of an interview with him in the course of which he admitted to being a homosexual but denied that this was an illness or that it would prevent him from functioning as a normal member of society . A complaint was lodged against that programme . ORG report referred to the existing law criminalising homosexual activity and upheld the complaint on the ground that the programme was in breach of ORG in that it could be interpreted as advocacy of homosexual practices .", "( v ) The applicant gave evidence of suffering verbal abuse and threats of violence subsequent to the interview with him on ORG , which he attributed in some degree to the criminalising of homosexual activity . He also alleged in evidence that in the past his mail was opened by the postal authorities .", "( vi ) The applicant admitted to having a physical relationship with another man and that he feared that he or the person with whom he had the relationship , who normally lived outside GPE , could face prosecution .", "( vii ) The applicant also claimed to have suffered what PERSON Justice PERSON in a dissenting judgment in ORG ( see paragraph CARDINAL below ) alluded to as follows :", "\" ... fear of prosecution or of social obloquy has restricted him in his social and other relations with male colleagues and friends : and in a number of subtle but insidiously intrusive and wounding ways he has been restricted in or thwarted from engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship . \"", "ORG It is common ground that at no time before or since the court proceedings brought by the applicant has he been charged with any offence in relation to his admitted homosexual activities . However , he remains legally at risk of being so prosecuted , either by ORG or by way of a private prosecution initiated by a common informer up to the stage of return for trial ( see paragraphs CARDINAL below ) .", "ORG NORP law does not make homosexuality as such a crime . But certain statutory provisions in force in GPE penalise certain homosexual activities . Some of these are penalised by the Offences against LAW , DATE ( \" LAW \" ) and LAW , DATE ( \" the DATE Act \" ) .", "The provisions relevant to the present case are sections CARDINAL and CARDINAL of LAW . LAW of LAW , as amended in DATE , provides that :", "\" Whosoever shall be convicted of the abominable crime of buggery , committed either with mankind or with any animal , shall be liable to be kept in penal servitude for life . \"", "Section CARDINAL of LAW , as similarly amended , provides that :", "\" Whosoever shall attempt to commit the said abominable crime , or shall be guilty of any assault with intent to commit the same , or of any indecent assault upon a male person , shall be guilty of a misdemeanour , and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding DATE . \"", "The offences of buggery or of an attempt to commit the same may be committed by male or female persons .", "LAW of the DATE Act deals only with male persons . It provides that :", "\" Any male person who , in public or in private , commits , or is a party to the commission of , or procures or attempts to procure the commission by any male person of , any act of gross indecency with another male person , shall be guilty of a misdemeanour , and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding DATE , with or without hard labour . \"", "Sections DATE and CARDINAL of LAW should be read in conjunction with the provisions of LAW , section CARDINAL , by virtue of which the court is empowered to impose a lesser sentence of penal servitude than that mentioned in LAW or , in lieu thereof , a sentence of imprisonment for a term not exceeding DATE or a fine . The provisions of LAW and of LAW are also subject to the power given to the court by LAW , to apply , by way of substitution , certain more lenient measures .", "The terms \" hard labour \" and \" penal servitude \" no longer have any practical significance , since anyone now sentenced to \" hard labour \" or \" penal servitude \" will , in practice , serve an ordinary prison sentence .", "ORG LAW is the only CARDINAL of the legislative provisions attacked in the instant case that can be described as dealing solely with homosexual activities . What particular acts in any given case may be held to amount to gross indecency is a matter which is not statutorily defined and is therefore for the courts to decide on the particular facts of each case .", "ORG The right to prosecute persons before a court other than a court of summary jurisdiction is governed by LAW , section CARDINAL of the LAW which is as follows :", "\" All crimes and offences prosecuted in any court constituted under LAW other than a court of summary jurisdiction shall be prosecuted in the name of ORG the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose . \"", "Section CARDINAL of ORG , DATE , as adapted by LAW , DATE , provides that :", "\" All criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General of GPE . \"", "ORG The provisions of LAW DATE extended to ORG most of the prosecuting functions exercised by the Attorney General . ORG ( an office created by that LAW ) is independent of the ORG and a permanent official in ORG of the ORG as distinct from ORG .", "ORG Any member of the public , whether an NORP citizen or not , has the right as a \" common informer \" to bring a private prosecution . He need not have any direct interest in the alleged offence or be personally affected by it . A private prosecutor ’s rights are limited in respect of offences which are not triable summarily . In ORG ) v. PERSON [ DATE ] Irish Reports CARDINAL , it was held by ORG that the effect of section CARDINAL of ORG DATE was that a private prosecutor may conduct a prosecution up to the point where the judge of ORG decides that the evidence is sufficient to warrant a committal for trial in cases of indictable offences i.e. triable with a jury . Thereafter the Attorney General , or now also ORG , becomes dominus litis and must then consider whether or not he should present an indictment against the accused who has been returned by ORG for trial with a jury .", "ORG The offences which are at issue in the present case , namely those set out in sections CARDINAL and CARDINAL of LAW and in LAW of LAW , are indictable offences . Indictable offences are only triable summarily in ORG if the judge of ORG is of the opinion that the facts constitute a minor offence and the accused , on being informed of his right to trial by jury , expressly waives that right . This availability of summary trial is provided for by LAW DATE and is limited to those indictable offences set out in the Schedule to that Act . This does not include the offences under sections CARDINAL and CARDINAL of LAW . The summary trial procedure is available in respect of an offence under LAW of LAW where the accused is over DATE and the person with whom the act is alleged to have been committed is legally unable to consent for being under DATE or an idiot , an imbecile or a feeble - minded person . Thus a summary trial can never be had in cases involving consenting adults and , save where the accused pleads guilty , the case can be heard only with a jury whether the prosecution was commenced by a private prosecutor or by ORG .", "Moreover , LAW permits a person charged with any indictable offence ( save an offence under LAW DATE , murder , attempt to murder , conspiracy to murder , piracy or an offence under section CARDINAL ( CARDINAL ) ( i ) of LAW , DATE ) to plead guilty in ORG . If ORG , or the Attorney General , as the case may be , consents , the case may be disposed of summarily in that ORG . If sentence is imposed by ORG , it can not exceed CARDINAL months’ imprisonment . If the judge of ORG is of opinion that the offence warrants a greater penalty , he may send the accused forward to ORG for sentence . In such a case an accused may change his plea to CARDINAL of \" not guilty \" and the case will then be tried with a jury . ORG has a discretion to impose any sentence up to the limit permitted by the relevant statutory provision .", "ORG Therefore , while a private prosecution may be initiated by a common informer , a prosecution brought under one of the impugned provisions can not proceed to trial before a jury unless an indictment is laid by ORG . According to ORG there have not been any private prosecutions arising out of the homosexual activity in private of consenting male adults since the inception of the ORG in DATE .", "ORG The following statement was made by ORG in DATE , in reply to a question asked by the Commission :", "\" The Director has no stated prosecution policy on any branch of the criminal law . He has no unstated policy not to enforce any offence . Each case is treated on its merits . \"", "The Government ’s statistics show that no public prosecutions , in respect of homosexual activities , were brought during the relevant period except where minors were involved or the acts were committed in public or without consent .", "ORG In DATE the applicant brought proceedings in the ORG seeking a declaration that sections CARDINAL and CARDINAL of LAW and LAW of LAW were not continued in force since the enactment of LAW ( see paragraph CARDINAL above ) and therefore did not form part of NORP law . Mr Justice PERSON , in his judgment of DATE , found , among other facts , that \" CARDINAL of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading , on occasions , to depression and the serious consequences which can follow from that unfortunate disease \" . However , he dismissed Mr PERSON ’s action on legal grounds .", "ORG On appeal , ORG , by a CARDINAL - to - CARDINAL majority decision of CARDINAL DATE , upheld the judgment of ORG . ORG was satisfied that the applicant had locus standi to bring an action for a declaration even though he had not been prosecuted for any of the offences in question . The majority held that \" as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in , such right , if it exists , is threatened , and the plaintiff has standing to seek the protection of the court \" .", "ORG In the course of these proceedings it was contended on behalf of the applicant that the judgment of CARDINAL DATE of ORG in the PERSON case ( Series A no . CARDINAL ) should be followed . In support of this plea , it was argued that , since GPE had ratified LAW , there arose a presumption that LAW was compatible with the LAW and that , in considering a question as to inconsistency under LAW , regard should be had to whether the laws being considered are consistent with the LAW itself .", "In rejecting these submissions , Chief Justice O’Higgins , in the majority judgment , stated that \" the ORG is an international agreement \" which \" does not and can not form part of [ GPE ’s ] domestic law nor affect in any way questions which arise thereunder \" . The Chief Justice said : \" This is made quite clear by LAW , section CARDINAL , of the LAW which declares : - ‘ No international agreement shall be part of the domestic law of the ORG save as may be determined by the ORG \"", "In fact , ORG already noted in its judgment of DATE in the PERSON case ( Series A no . CARDINAL , pp . CARDINAL , para . CARDINAL ) that the ORG had not introduced legislation to make ORG part of the municipal law of GPE .", "ORG considered the laws making homosexual conduct criminal to be consistent with the LAW and that no right of privacy encompassing consensual homosexual activity could be derived from \" the NORP and democratic nature of ORG \" so as to prevail against the operation of such sanctions . In its majority decision , ORG based itself , inter alia , on the following considerations :", "\" ( CARDINAL ) Homosexuality has always been condemned in NORP teaching as being morally wrong . It has equally been regarded by society for DATE as an offence against nature and a very serious crime .", "( CARDINAL ) Exclusive homosexuality , whether the condition be congenital or acquired , can result in great distress and unhappiness for the individual and can lead to depression , despair and suicide .", "( CARDINAL ) The homosexually oriented can be importuned into a homosexual lifestyle which can become habitual .", "( CARDINAL ) Male homosexual conduct has resulted , in other countries , in the spread of all forms of venereal disease and this has now become a significant public health problem in GPE .", "( CARDINAL ) Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution . \"", "ORG , however , awarded the applicant his costs , both of the proceedings before ORG and of the appeal to ORG ." ]

[ "8" ]

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[ "The facts of the case as submitted by the applicant are summarised below . The Government dispute the applicant ’s account .", "The applicant was at the relevant time a research student in public law at ORG and married to a lawyer who had been the provincial president of ORG in DATE . According to the applicant she was constantly followed by the police on account of her husband ’s position .", "On DATE , at TIME , the applicant was arrested by CARDINAL policemen at her home on suspicion of membership of ORG ( “ NORP ” ) , an illegal organisation .", "The applicant was taken to the forensic doctor to be examined . Following the doctor ’s examination she was blindfolded and taken to an unknown destination where she was placed in a cell . After a certain period of time , she was again blindfolded and taken to another room to be interrogated .", "NORP The applicant was interrogated by CARDINAL policemen and accused of forming links with and of working for the ORG abroad . She was then undressed and hung by her arms . She was given electric shocks to her mouth and sexual organs . After TIME she was taken down as she had fainted . The interrogators , while threatening her with death and rape , told her not to work on human rights matters . She was then taken to her cell . DATE she was again tortured and threatened with death and rape . The torture continued for DATE . During DATE of her custody the applicant was not given anything to eat . Thereafter she was only given a piece of bread and a few olives .", "During her detention the applicant was requested to sign some documents . She was told that she would be tortured and raped if she did not agree to sign them . The applicant signed the documents . In the documents , by way of explanation for the marks of torture on her body , it was stated that the applicant had fallen while indicating a place used by the ORG . The policemen applied cream to the applicant ’s injuries .", "On DATE the police officers brought her to the forensic doctor who drew up a report which stated : “ Upon the examination of PERSON GPE , violet - coloured bruises were identified on the left upper arm CARDINAL by QUANTITY and on the right tibia CARDINAL by QUANTITY ” .", "On DATE the applicant , accompanied by police officers , was taken to ORG where she was examined by a forensic doctor . In his report dated DATE the doctor noted the presence of the same bruising on the applicant ’s arm and leg as indicated in the earlier report of CARDINAL DATE . The report concluded that the applicant ’s health was not at risk and that she was fit to work .", "On DATE the applicant was brought before the public prosecutor at ORG . Her file contained the medical reports dated CARDINAL , CARDINAL and DATE . The applicant maintained before the public prosecutor that she had signed the confession statement under pressure and as a result of being tortured while in detention . The public prosecutor recorded in the file that the applicant did not acknowledge the statement which she gave to the police .", "On DATE the applicant appeared before a substitute judge attached to ORG . The applicant repeated to the judge that she did not acknowledge the statement taken from her by the police “ since she had been tortured and held under duress for DATE ... and that the police had held her wrist and forced her to sign the police statement ” . The applicant ’s statement was recorded in the minutes of the hearing before the judge . The judge directed that the applicant be released from custody . The public prosecutor for his part ordered that the applicant stand trial before ORG on a charge of being a member of the ORG .", "On DATE the applicant was given a certificate by ORG indicating that she was unable to work for DATE . According to the medical report the applicant was suffering from bronchopneumonia .", "On DATE the applicant was acquitted by ORG on the ground of lack of evidence . The applicant was not in court on DATE . In its ruling the court noted as follows the declarations made by the applicant during a court hearing held on DATE and which was recorded in the minutes .", "“ Although the accused admitted to the offence with which she was charged in her statements to the police , at a later stage during the proceedings before the judicial organs she claimed that she had made them under duress and even torture and had signed them without having read them . ”", "LAW makes it a criminal offence to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL respectively , the latter provision applying to allegations made against civil servants ) .", "Complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate criminal offences reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .", "If the alleged author of a criminal offence is a ORG official or civil servant , permission to prosecute must be obtained from the local administrative council ( ORG of ORG ) . The decision of a local council may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind ." ]

[ "3" ]

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[ "The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "i. By a judgment of DATE , the GPE u ORG ( Okresní soud ) decided that a restitution agreement concluded between a state enterprise PERSON and the applicants on DATE was null and void . On DATE ORG ( PERSON ) upheld this judgment .", "ii . On DATE the applicants brought restitution proceedings against that state enterprise .", "By a judgment of DATE ORG ordered the state enterprise to conclude a restitution agreement with the first applicant . In respect of the second applicant the court found that she had introduced her restitution action outside the statutory time - limit ; her claims were therefore dismissed .", "On DATE ORG upheld the first - instance court 's judgment .", "On DATE the first applicant filed a constitutional appeal complaining about delays in the restitution proceedings . He further alleged a violation of his property rights .", "On DATE ORG ( PERSON ) dismissed the first applicant 's constitutional appeal .", "On DATE ORG ( PERSON ) rejected an appeal on points of law ( dovolání ) by the state enterprise ORG against ORG judgment of DATE .", "iii . On DATE the first applicant brought an action for eviction of a private company ORG from the property he had recovered as a result of the restitution proceedings . According to the information in the case file , the eviction proceedings were terminated on DATE when the parties agreed to a friendly settlement .", "iv . On DATE the first applicant brought an action in the NORP ORG against ORG seeking payment of rent arrears for the period during the eviction proceedings . This action seems to be still pending .", "v. In a letter of DATE the applicants informed the ORG that they intended to seek non - pecuniary damages for the length of the restitution proceedings by means of an application to ORG . The outcome of the proceedings is unclear from the case file .", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are set out in the ORG 's decision in the case of PERSON v. GPE ( ( dec . ) no . CARDINAL , § LAW , CARDINAL , DATE ) ." ]

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[ "The applicant , PERSON , is a NORP national who was born in GPE in DATE and lives at FAC .", "The applicant ’s mother died on CARDINAL DATE of HIV ( human immunodeficiency virus ) encephalopathy , having been infected after a blood transfusion . She left CARDINAL children : a son , PERSON , born out of wedlock in DATE and legitimised by his mother ’s marriage in DATE , and the applicant , born in DATE , on whose birth certificate only his mother ’s name was entered as a parent , she being still married at the time of his birth , but living separately from her husband . They divorced in DATE .", "On DATE PERSON brought an action against the applicant in the NORP tribunal de grande instance seeking an order that his mother ’s estate be divided by a notary , that the applicant , as an adulterine child , could not lay claim to CARDINAL of it and that there be deposited with the notary a sum of money unlawfully withdrawn by the applicant from his mother ’s account and transferred to a personal account while their mother was in a coma .", "In his pleadings , the applicant agreed to the appointment of a notary to divide the estate , but submitted that LAW , which restricts the inheritance rights of adulterine children , was discriminatory and incompatible with Articles CARDINAL and CARDINAL of the LAW , the provisions of LAW on the Rights of the Child and Article CARDINAL of LAW , which enshrines the principle that children born in wedlock and children born out of wedlock have equal rights . He requested the court to hold that he had the same inheritance rights as a legitimate child . He also submitted that the amount which he had been requested to deposit with a notary had been transferred as a gift which he was not required to bring into account , as evidenced by a letter from the deceased of DATE , a general power of attorney for bank transactions , dated DATE , and witness statements .", "In a judgment of DATE the court ordered the estate to be divided . With regard to the applicant ’s rights , it referred to LAW ( see paragraph CARDINAL below ) .", "The court conceded that LAW represented a derogation from the principle , enshrined in the first paragraph of LAW , that children should be treated equally regardless of descent , but held that its purpose was not to discriminate between children on the grounds of their birth but to ensure minimum compliance with marital commitments on the part of the married parent who engenders an illegitimate child . It accordingly concluded that LAW was necessary in order to protect the rights of others and that it was a principle of public policy which was not contrary to the Convention .", "In respect of the sum which had been withdrawn by the applicant and transferred to his own account , the court held that the applicant had merely executed his mother ’s intention to gift him a sum of money in addition to his share in the estate and that although that gift should notionally be brought into account in calculating the disposable portion of the estate , it was inappropriate as matters stood to order that the amount in question be deposited with the notary dividing the estate .", "NORP The applicant appealed , arguing , among other things , that LAW was incompatible with Articles CARDINAL and CARDINAL of LAW No . CARDINAL .", "In a judgment of DATE , ORG upheld the provisions of the lower court ’s judgment ordering the estate to be divided and determining the applicant ’s inheritance rights . It considered , however , that the amount transferred to the applicant ’s account should be returned to the estate to be divided because he had not proved that his mother had intended it as a gift .", "With regard to the complaint that the discrimination between legitimate children and adulterine children was incompatible with the provisions of the Convention , ORG held :", "“ In the instant case the provisions of LAW , which limit the inheritance rights of adulterine children , are directly linked to the NORP legal principle of public policy according to which marriage should be monogamous and the interests of the spouse and legitimate children of an adulterer protected .", "Article CARDINAL was not enacted in order to disadvantage adulterine children , but to protect the interests of the spouse and legitimate children of an adulterer ; the provision does not therefore intentionally discriminate against adulterine children , but ensures the protection of children born of the marriage who might be disadvantaged on the division of their GPE estate by the presence of an adulterine child who , on account of the predecease of the non - adulterous spouse and the system of matrimonial property elected by the spouses , might otherwise inherit from his or her parent both the assets from that parent ’s estate and the assets from the estate of the spouse who is not his or her parent .", "The court was thus properly entitled to hold that it was not the intention of the legislature to discriminate between children on the grounds of their birth , but to ensure minimum compliance with the marital obligations of a married parent with regard to his or her legitimate children ; the court was also properly entitled to hold that LAW was a provision necessary for the protection of the rights of others , that it was a NORP legal principle of public policy and that it was not contrary to LAW . ”", "The applicant appealed on points of law to ORG , which delivered its judgment on DATE .", "With regard to the applicant ’s complaint of unjustified discrimination on grounds of birth between children born in wedlock and children born out of wedlock , contrary to Articles CARDINAL and CARDINAL of the Convention , ORG held that inheritance rights had nothing to do with respect for private and family life guaranteed by LAW .", "In respect of the complaint that ORG had ordered the sum transferred to the applicant ’s account to be returned to the estate to be divided , ORG held that in deciding that the facts of the case had not shown any intention on the part of the deceased to bestow a gift on her son in advance of the division of her estate ORG had determined an issue which it alone had jurisdiction to determine .", "On DATE ORG and Haemophiliacs awarded the applicant , in his personal capacity , compensation of MONEY ( ORG ) and assessed the deceased ’s loss at ORG CARDINAL,CARDINAL , to be paid to her heirs . That amount was thus paid to the notary dealing with the estate and the applicant subsequently received CARDINAL of it .", "The relevant provisions of LAW , introduced by LAW no . CARDINAL of DATE , provide :", "“ Children or their issue shall inherit from their father and mother , grandfathers , grandmothers or other ancestors , irrespective of sex or primogeniture , and even if they are born of different marriages .", "The estate shall devolve upon them in equal portions and per capita if they are all first degree issue and heirs in their own right ; they shall inherit per stirpes if all or some of them inherit through their ascendants . ”", "“ Children born out of wedlock shall , in general , inherit from their father and mother or other ancestors , as well as from their brothers and sisters or other collateral relatives , on the same terms as legitimate children . ”", "“ Children born out of wedlock whose father or mother was , at the time of their conception , bound by a marriage of which legitimate children were born are entitled to inherit from that parent in competition with the legitimate children ; however , they shall each receive CARDINAL of the share to which they would have been entitled if all the children of the deceased , including themselves , had been legitimate .", "The children born of the marriage injured by the adultery shall inherit in addition the fraction by which the adulterine child ’s share of the estate is thus reduced ; it shall be divided between them in proportion to their share in the estate . ”", "The relevant provisions of LAW on the Rights of the Child , which came into force on DATE , read as follows :", "“ CARDINAL . DATE States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind , irrespective of the child ’s or his or her parent ’s or legal guardian ’s race , colour , sex , language , religion , political or other opinion , national , ethnic or social origin , property , disability , birth or other status .", "DATE States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status , activities , expressed opinions , or beliefs of the child ’s parents , legal guardians , or family members . ”", "In a report entitled “ Status and Protection of Children ” , adopted in DATE , the ORG d’Etat referred to the issue of equal treatment of children regardless of descent in the following terms :", "“ The restriction of adulterine children ’s inheritance rights is the subject of much criticism . It appears to be in direct conflict with the principle that children should be treated equally regardless of descent and constitutes an infringement of the principles enshrined in the Civil Code according to which children born out of wedlock have , in general , the same rights as children born in wedlock . Such discrimination , based on descent , also appears to be contrary to LAW and to FAC . It should therefore be abolished . ”", "The PERSON d’Etat ’s report also sets out socio - demographic data . It emerges from the report that as at DATE CARDINAL in CARDINAL children had been born out of wedlock , this being true of CARDINAL in CARDINAL births in DATE . In addition to that , major shifts in family models appeared during DATE , “ with a PERCENT decrease in the annual number of marriages DATE , CARDINAL times more births out of wedlock over DATE , and a rise in the number of cohabiting unmarried couples so sharp that it is now the typical first union for CARDINAL in CARDINAL NORP citizens ... as for divorces , the annual figure had already almost doubled DATE , and it doubled again during DATE ” .", "A government bill , registered on DATE ( no . CARDINAL ) , proposed bringing the inheritance rights of adulterine children into line with that of other children . It was subsequently abandoned .", "On DATE the Minister of ORG instructed PERSON , a sociologist , to study shifts in family models . The report , entitled “ Couples , Descent and Kinship DATE ” was submitted on DATE . It found that there was no sociological fracture according to whether couples were married or not , and criticised the inegalitarian status of adulterine children .", "In DATE a working group on family law was set up by the Minister of ORG to consider , among other things , “ possible changes to the law in the light of factual developments ” in order to avoid “ a gulf developing between [ ORG ] aspirations and the law ” . Chaired by Professor PERSON , the commission submitted its report on DATE . It contained a set of proposals for “ renovating family law ” . In particular , the commission recommended “ giving full effect to the principle that children should be treated equally regardless of descent ” as follows :", "“ The principle that children should be treated equally regardless of descent was CARDINAL of the CARDINAL guiding principles underlying the CARDINAL January CARDINAL Act . At the time , a compromise had to be made , however , and full equality was not achieved . DATE , it appears essential to complete the exercise and achieve full equal treatment of children regardless of descent . In order to attain that objective , full equality of status needs to be achieved and the right to affiliation made equal so that the possibility of establishing or contesting descent will no longer depend on the GPE legal status .", "SSCARDINAL . Achieving equality of status", "The working group considers , unanimously and unhesitatingly , that the time has come to abolish the legal restrictions on adulterine children ’s inheritance rights . The current position is that their rights are halved where they are competing with half- brothers and sisters or with the adulterer ’s spouse .", "A number of arguments militate strongly in favour of abolition . The first is quite simply chronological . The solutions adopted by the CARDINAL January CARDINAL Act constituted , according to the most eminent commentators , ‘ an inglorious trade - off’ , the fruit of a ‘ PERSON of ORG . That compromise was necessary as a transitional phase during which the principle of equality which the LAW had intended to promote could be progressively inserted into our law . DATE , the transitional phase has come to an end . The second argument stems from the case - law of ORG . It is likely that the ORG will soon find that the NORP rule violates the LAW , and it would be preferable for an amendment of our law not to appear to be imposed from outside . Lastly , and above all , the solution favoured by the group of making the law of descent equal by abolishing divisive classifications makes it more and more difficult to maintain inequalities based on conditions of birth , without inevitably incurring the CARDINAL - fold complaint of injustice and contradiction .", "Is there a danger that the importance of marriage will be lessened by undermining the trust which husbands and wives have placed in each other ? The group does not think so . Adultery is clearly a serious injury inflicted on the spouse who is the victim of it and , over and above the spouses , on the children born of their marriage . In more legal terms , adultery is always an instance of misconduct and can be serious misconduct , for the duty of fidelity is inherent in the marital commitment . If such misconduct must be punished , however , it is only those who have committed it who should be punished and certainly not , we feel , the child born as a result . It is contradictory to declare on the one hand that parents have equal responsibility for their children irrespective of how they choose to lead their life as a couple and , on the other hand , to impose on a child , on the grounds that he or she is adulterine , the consequences of the parent ’s infidelity .", "More specifically , to enforce marital duties through inheritance rights appears to be neither fair nor appropriate . For CARDINAL thing , relations between husband and wife will often have been broken off well before the birth of the child , and there is therefore something hypocritical about imposing on that child the ties of a commitment from which those who entered into it have long since freed themselves . For another thing , even if the marital ties have remained intact until the end , is it not vain to hope that a hereditary advantage will succeed in healing a split which by its very nature belongs to a completely different realm ? Moreover , as the law currently stands , it is almost always possible for the child ’s parent to ‘ ORG this reduction in rights by legitimising DATE after divorcing and re - marrying , or , without divorcing , by seeking a court order DATE or even adopting the child . Far from making the rule more easily bearable , that option has the effect of leaving the child ’s ultimate destiny to the discretion of the adulterous parent . Thus the current provisions have the effect of multiplying inequalities , without succeeding in strongly affirming the importance of the marital commitment .", "We add that we are not in favour of an intermediate solution whereby the current protection afforded by law to children born in wedlock ( particularly Articles CARDINAL and CARDINAL ) would be abolished , while the protection afforded to the wronged spouse , the direct victim of the adultery , under ORG and CARDINAL , second paragraph , would be maintained . The effect of that solution would be minimum compliance with the international conventions , whose sole concern is to secure equality between children , whereas the protective provisions specific to the spouse apply , by definition , only where the deceased leaves no other issue . Such a hybrid solution would merely be a means of failing to resolve the debate . What is actually at issue is not only material equality between children born of different partnerships in the division of their common parent ’s estate , but , in both more abstract and stronger terms , equality of the rights conferred by descent .", "Proposal :", "– Abolish the restrictions on adulterine children ’s inheritance rights . ”" ]

[ "14", "P1" ]

[ "P1-1" ]

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[ "Mr. PERSON , an NORP journalist born in DATE , resides in GPE and is editor of the magazine ORG .", "On DATE , DATE after the NORP general elections , in the course of a television interview , Mr. PERSON , President of the NORP ORG , accused Mr. PERSON , the President of ORG ( ORG ) of having served in the first ORG infantry brigade during the Second World War . This unit had on several occasions massacred civilians behind the NORP lines in GPE . Mr. PERSON did not deny that he was a member of the unit , but stated that he was never involved in the atrocities it committed . Mr. PERSON then said that he had not alleged anything of the sort .", "The following day , Mr. PERSON , the retiring Chancellor and President of ORG ( ORG ) , was questioned on television about these accusations .", "Immediately before the television interview , he had met Mr. PERSON at ORG . Their meeting was one of the normal consultations between heads of parties with a view to forming a new government ; it had aroused great public interest because before the elections on DATE the possibility of a FAC - Peter coalition government had been canvassed .", "At the interview , Mr. PERSON excluded the possibility of such a coalition because his party had won an absolute majority . However , he vigorously supported Mr. PERSON and referred to Mr. PERSON ’s organisation and activities as a \" political mafia \" and \" mafia methods \" . Similar remarks were reported DATE in a GPE DATE newspaper to which he had given an interview .", "At this juncture , the applicant published CARDINAL articles in the GPE magazine ORG .", "The first was published on DATE under the heading \" The Peter Case \" ( \" Der Fall Peter \" ) . It related the above events and in particular the activities of the first ORG infantry brigade ; it also drew attention to Mr. PERSON ’s role in criminal proceedings instituted in GPE ( and later abandoned ) against persons who had fought in that brigade . It drew the conclusion that although Mr. PERSON was admittedly entitled to the benefit of the presumption of innocence , his past nevertheless rendered him unacceptable as a politician in GPE . The applicant went on to criticise the attitude of Mr. PERSON whom he accused of protecting Mr. PERSON and other former members of the ORG for political reasons . With regard to Mr. PERSON ’s criticisms of Mr. PERSON , he wrote \" had they been made by someone else this would probably have been described as the basest opportunism \" ( \" GPE anderen würde man es wahrscheinlich übelsten ORG nennen \" ) , but added that in the circumstances the position was more complex because Mr. PERSON believed what he was saying .", "The second article , published on DATE , was entitled \" Reconciliation with the NORP , but how ? \" ( \" FAC den NORP - aber wie ? \" ) . It covered several pages and was divided into an introduction and CARDINAL sections : \" ‘ Still’ or ‘ Already’ \" , \" We are all innocent \" , \" Was it necessary to shoot defenceless people ? \" , \" Why is it still a question for discussion ? \" , \" PERSON and PERSON \" and \" Politically ignorant \" .", "In the introduction Mr. PERSON recalled the facts and stressed the influence of Mr. PERSON ’s remarks on public opinion . He criticised him not only for supporting Mr. PERSON , but also for his accommodating attitude towards former NORP who had recently taken part in NORP politics .", "Under the heading \" ‘ Still’ or ‘ Already’ \" the applicant conceded that one could not object to such attitudes on grounds of \" Realpolitik \" . According to him \" the time has passed when for electoral reasons one had to take account not only of NORP but also of their victims ... the former have outlived the latter ... \" . Nevertheless GPE , which had produced PERSON and PERSON and so many other war criminals , had not succeeded in coming to terms with its past ; it had simply ignored it . This policy risked delivering the country into the hands of a future fascist movement .", "With regard to the then Chancellor , he added : \" In truth Mr. PERSON ’s behaviour can not be criticised on rational grounds but only on irrational grounds : it is immoral , undignified \" ( \" In Wahrheit kann man das , was FAC tut , auf rationale PERSON nicht widerlegen . Nur irrational : es ist unmoralisch . PERSON \" ) . It was , moreover , unnecessary because NORP could reconcile themselves with the past without seeking the favours of the former NORP , minimising the problem of concentration camps or maligning Mr. PERSON by exploiting anti - Semitism .", "What was surprising was not that one \" still \" spoke about these things DATE but , on the contrary , that so many people were \" already \" able to close their eyes to the existence of this mountain of corpses .", "Finally , Mr. PERSON criticised the lack of tact with which Mr. PERSON treated the victims of the NORP .", "The second section commented on the attitude of NORP society in general with regard to NORP crimes and former NORP . In the author ’s opinion , by sheltering behind the philosophic alternative between collective guilt and collective innocence the NORP had avoided facing up to a real , discernible and assessable guilt .", "After a long disquisition on various types of responsibility , he stressed that at the time it had in fact been possible to choose between good and evil and gave examples of persons who had refused to collaborate . He concluded that \" if PERSON had used his personal reputation , in the way he used it to protect Mr. PERSON , to reveal this other and better GPE , he would have given this country - DATE afterwards - what it most needed to come to terms with its past : a greater confidence in itself \" .", "The third and fourth sections ( which together amounted to CARDINAL of the article ) also dealt with the need to overcome the consciousness of collective guilt and envisage the determination of real guilt .", "Under the title \" Was it necessary to shoot defenceless people ? \" , Mr. PERSON drew a distinction between the special units and the regular forces in the armies of ORG ; he pointed out that no one was forcibly enlisted in the former : CARDINAL had to volunteer .", "In the following section he stressed the difference between individuals guilty of criminal offences and persons who , morally speaking , had to be regarded as accomplices ; he maintained that if GPE had tried its NORP earlier , more quickly and more thoroughly , it would have been able to view its past more calmly without complexes and with more confidence . He then set out the reasons why that had not been possible and defended Mr. PERSON from the charge of belonging to a \" mafia \" . Finally , he considered the possibility of showing clemency after so DATE and concluded : \" It belongs to every society to show mercy but not to maintain an unhealthy relationship with the law by acquitting obvious murderers and concealing , dissembling or denying manifest guilt . \"", "The fifth section of Mr. PERSON article compared the PERSON case with another affair of a more economic nature relating to Mr. PERSON , CARDINAL of the leaders of ORG ( Österreichische Volkspartei ) , and compared Mr. PERSON ’s different reaction in each case . The author argued that the circumstances of the first case made Mr. PERSON unfit to be a member of parliament , a politician and a member of the government , and added : \" This is a minimum requirement of political ethics \" ( \" ein Mindesterfordernis des politischen Anstandes \" ) . The \" monstrosity \" ( \" GPE \" ) was not , in his opinion , the fact that Mr. PERSON had raised the matter , but that Mr. PERSON wished to hush it up .", "The article ended with a section criticising the political parties in general owing to the presence of former NORP among their leaders . The applicant considered that Mr. PERSON ought to resign , not to admit his guilt but to prove that he possessed a quality unknown to Mr. PERSON , namely tact .", "On DATE and CARDINAL DATE , the then Chancellor brought CARDINAL private prosecutions against Mr. PERSON . He considered that certain passages in the articles summarised above were defamatory and relied on LAW , which reads :", "\" CARDINAL . Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine .", "Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine .", "The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . \"", "Under LAW , \" evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ... \" .", "On DATE , ORG found Mr. PERSON guilty of defamation ( üble Nachrede - Article CARDINAL para . CARDINAL ) for having used the expressions \" the basest opportunism \" , \" immoral \" and \" undignified \" . However , it held that certain other expressions were not defamatory in their context ( \" minimum requirement of political ethics \" , \" monstrosity \" ) . It fined him MONEY , considering as mitigating circumstances the fact that the accused intended to voice political criticism of politicians on political questions and that the latter were expected to show greater tolerance of defamation than other individuals . In view of the defendant ’s good faith it awarded Mr. PERSON no damages but , on his application , ordered the confiscation of the articles complained of and the publication of the judgment .", "In its decision , which contained a lengthy statement of reasons , ORG first examined the objectively defamatory character of each of the passages complained of . It held that the expressions \" basest opportunism \" , \" immoral \" and \" undignified \" were defamatory and were directly or indirectly aimed at Mr. PERSON personally , whereas the words \" minimum requirement of political ethics \" and \" monstrosity \" did not go beyond the accepted limits of political criticism .", "According to Mr. PERSON , the first CARDINAL expressions were value - judgments and therefore as such not contrary to LAW . However , ORG considered that the unfavourable conclusions drawn with regard to the then Chancellor ’s behaviour fell within the scope of that provision . Nor could the defendant rely on his right to freedom of expression , since the relevant provisions of LAW and LAW ) of the ORG authorised limitations of this right : a balance had to be struck between this right and the right to respect for private life and reputation . In the instant case the applicant had gone beyond the permissible limits .", "As regards Mr. PERSON ’s use of a private prosecution , ORG pointed out that he had been criticised not in his capacity as Federal Chancellor but as a leading member of his party and a politician . Article CARDINAL para . CARDINAL of the Criminal Code therefore did not apply in the instant case : it made defamation of an office - holder punishable , but solely by means of a public prosecution commenced with the consent of the person concerned , who could not bring a private prosecution unless the prosecuting authorities refused to act .", "ORG then considered the question of proving truth ( preuve de la vérité ) ( see paragraph CARDINAL above ) . It held that as the applicant had not provided evidence to justify the expression \" basest opportunism \" , that was sufficient to lead to his conviction .", "With regard to the words \" immoral \" and \" undignified \" , the accused had used them in relation to Mr. PERSON ’s attitude consisting in minimising NORP atrocities , referring to Mr. PERSON ’s activities as being of a mafia - type and insinuating that the latter had collaborated with the Gestapo . On this last point ORG admitted evidence produced by Mr. PERSON in the form of a court decision finding a journalist guilty of defamation for having made a similar allegation .", "In so far as Mr. PERSON had spoken of \" mafia methods \" and \" mafia \" , ORG pointed out that these expressions normally referred to an organised form of criminal behaviour but were sometimes used in a different sense . Even if one did not accept the argument put forward by the private prosecutor , his conception of the \" mafia \" was a possible one and deserved to be examined . It was not for the prosecutor to prove the truth of his allegations but for Mr. PERSON to prove the truth of his . Mr. PERSON himself had conceded that in order to attain his various aims he relied on an organisation with numerous ramifications . Moreover , the then Chancellor ’s statements ( see paragraph CARDINAL above ) must be seen in the context of a political struggle between political opponents , each of them using such weapons as were at his disposal . Seen from this angle they did not reflect an absence of morality or dignity but constituted a possible defence and were in no way unusual in the bitter tussles of politics .", "In truth , Mr. PERSON ’s attitude towards NORP victims and NORP collaborators was far from clear and unambiguous ; it appeared in a form which allowed different conclusions . It was therefore logically impossible for the defendant to establish that the only possible interpretation of this attitude was the one he put on it .", "Mr. PERSON and Mr. PERSON both appealed against the judgment to ORG . On DATE , ORG set the judgment aside without examining the merits , on the ground that ORG had failed to go sufficiently into the question whether the then Chancellor was entitled to bring a private prosecution in spite of the provisions of LAW ( see paragraph CARDINAL above ) .", "ORG , to which ORG had returned the case , gave judgment on DATE .", "After examining the circumstances surrounding the statements by the then Chancellor , it came to the conclusion that he had been criticised not in his official capacity but as head of a party and as a private individual who felt himself under an obligation to protect a third person . It followed therefore that he was entitled to bring a private prosecution .", "As regards the legal definition of the acts imputed to Mr. PERSON , ORG confirmed its judgment of DATE .", "With regard to the defence of justification , it again noted that the accused had not produced any evidence to prove the truth of the expression \" the basest opportunism \" . As regards the expressions \" immoral \" and \" undignified \" , the evidence he had produced related solely to the allegations of collaboration with the NORP made against Mr. PERSON . These , however , were not relevant because Mr. PERSON had made them after the publication of the articles in question .", "In so far as these expressions were directed at other behaviour and attitudes of the Chancellor , ORG maintained its previous findings unchanged . It considered that Mr. PERSON criticisms went far beyond the question of Mr. PERSON ’s attacks on Mr. PERSON . The fact that the former had been able to prosecute the applicant but could not himself be prosecuted for defamation by Mr. PERSON was due to the existing legislation on parliamentary immunity . The obligation to prove the truth of his statements was also based on the law and it was not for the courts but for the legislature to make this proof less difficult . Nor was ORG responsible for the lack of tolerance and the litigious tendencies of certain politicians .", "It therefore passed the same sentence as in the original judgment ( see paragraph CARDINAL above ) .", "Both sides again appealed to ORG , which gave judgment on DATE ; it reduced the fine imposed on the applicant to QUANTITY but confirmed ORG judgment in all other respects .", "Mr. PERSON disputed the statement that different criteria applied to private life and to political life . He argued that politicians and private individuals should receive the same treatment as regards the protection of their reputation .", "ORG , however , pointed out that LAW applied solely to the esteem enjoyed by a person in his social setting . In the case of politicians , this was public opinion . Yet experience showed that frequent use of insults in political discussion ( often under cover of parliamentary immunity ) had given the impression that statements in this field could not be judged by the same criteria as those relating to private life . Politicians should therefore show greater tolerance . As a general rule , criticisms uttered in political controversy did not affect a person ’s reputation unless they touched on his private life . That did not apply in the instant case to the expressions \" minimum requirement of political ethics \" and \" monstrosity \" . Mr. PERSON ’s appeal was therefore dismissed .", "ORG then turned to Mr. PERSON grounds of appeal and first of all examined the evidence taken at first instance , in order to decide in what capacity Mr. PERSON had been subjected to his criticism . It too found that he was criticised in his capacity both as a party leader and as a private individual .", "The expression \" the basest opportunism \" meant that the person referred to was acting for a specific purpose with complete disregard of moral considerations and this in itself constituted an attack on Mr. PERSON ’s reputation . The use of the words \" had they been made by someone else \" ( see paragraph CARDINAL above ) could not be understood as a withdrawal of the criticism . As the defendant had not succeeded in proving the truth of it , the court of first instance had been right to find him guilty of an offence .", "According to the applicant , the expressions \" immoral \" and \" undignified \" were his personal judgment of conduct which was not disputed , a judgment made in exercise of his freedom of expression , guaranteed by LAW . ORG did not accept this argument ; it pointed out that NORP law did not confer upon the individual an unlimited right to formulate value - judgments and that LAW ) authorised limitations laid down by law for the protection , inter alia , of the reputation of others . Furthermore , the task of the press was to impart information , the interpretation of which had to be left primarily to the reader . If a journalist himself expressed an opinion , it should remain within the limits set by the criminal law to ensure the protection of reputations . This , however , was not the position in the instant case . The burden was on Mr. PERSON to establish the truth of his statements ; he could not separate his unfavourable value - judgment from the facts on which it was based . Since Mr. PERSON was personally convinced that Mr. PERSON used \" mafia methods \" , he could not be accused of having acted immorally or in an undignified manner .", "The appeal judgment was published in ORG on CARDINAL DATE , as required by the accessory penalty imposed on Mr. PERSON and his publisher ." ]

[ "10" ]

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[ "Since DATE the applicant has been serving in the Sniego Prison in GPE a sentence of CARDINAL years’ imprisonment for aggravated murder . By a Presidential decree of pardon of CARDINAL DATE the applicant ’s sentence was reduced by DATE .", "On DATE the applicant applied to the prison administration , requesting his transfer to another prison . The prison administration refused his request . The applicant unsuccessfully complained that he was unable to change prisons to various NORP and international authorities and NGOs , including ORG , ORG ( “ the ORG ” ) and ORG .", "On DATE he received a letter dated DATE from the ORG Commissioner on ORG based in GPE . The letter had been opened when he received it .", "On DATE he received a letter dated DATE from the Secretariat of ORG . The letter had also been subjected to initial screening by the prison administration before the applicant had access to it .", "On DATE the applicant was reprimanded in disciplinary proceedings . He lodged with the ORG a complaint concerning the reprimand and alleged breaches of the freedom of his correspondence .", "On DATE the ORG found that the prison administration had censored a letter from the applicant to his wife in which he had accused the prison staff of theft . The ORG found that , as a consequence , on DATE the prison administration had disciplined the applicant for slander . The ORG held that the applicant ’s letters to his wife pertained to the field of his private life , and that his allegations of theft did not constitute any formal suggestions , applications or complaints for the purpose of Rule CARDINAL § CARDINAL ( CARDINAL ) of ORG ( see the ‘ Relevant domestic law’ part below ) . The ORG concluded that the disciplinary penalty was unlawful , and suggested that it should be lifted . The ORG also found that the letter from the ORG of DATE had been opened . He held that the applicant ’s right to respect for correspondence under LAW was “ almost inviolable ” , but that the ORG was allowed to censor ORG letters in certain cases . The ORG found no violation of the applicant ’s right to respect for his correspondence .", "On the basis of the ORG ’s conclusions , on CARDINAL DATE the Director of ORG lifted the disciplinary penalty .", "DATE LAW provides that correspondence of a person is inviolable . Persons shall be protected by courts from arbitrary or unlawful interference with that right .", "Article CARDINAL of the Prison Code ( Pataisos darbų kodeksas ) provides that “ convicted ORG correspondence shall be censored ” .", "Rule CARDINAL § CARDINAL ( CARDINAL ) of ORG ( NORP darbų įstaigų vidaus tvarkos laikinosios taisyklės ) states that “ convicted ORG letters ( except those to a prosecutor ) sent from or received in a prison are subject to censorship ” . Rule CARDINAL § CARDINAL ( CARDINAL) states that any letters containing “ cryptography [ and ] cynical or threatening statements shall not be sent to the addressee ” . Rule CARDINAL § CARDINAL ( CARDINAL ) provides that written “ suggestions , applications or complaints containing insults , jargon or obscenities shall not be sent , [ and that ] disciplinary penalties may be imposed on the persons who have signed ” such papers ." ]

[ "8" ]

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[ "ORG company carries on the business of leasing lifting gear and providing related services . In DATE it had recourse to an employment agency for temporary staff , with which it signed CARDINAL contracts for the provision of manual labour . Subsequently , it refused to pay CARDINAL of CARDINAL invoices , initially because it disagreed with the number of hours charged and then on the ground that they were unsigned and did not bear the company stamp .", "On DATE ORG ordered it to pay the agency the sum of MONEY ( ORG ) under the contracts .", "ORG The applicant company lodged a criminal complaint against a person or persons unknown for forgery of commercial instruments , and against the employment agency for aiding and abetting and for making use of forged instruments .", "ORG It appealed to ORG against ORG judgment and made an application for the appeal to be stayed pending the outcome of the criminal proceedings instituted after it had lodged its complaint .", "ORG On DATE ORG made an interlocutory order staying the appeal . The relevant part of the judgment read as follows :", "\" ... the [ ORG ] company produced the text of the complaint it had lodged with the senior investigating judge in GPE and evidence of payment on CARDINAL DATE of the sum of MONEY , being the amount of the deposit requested on DATE ;", "...", "That complaint concerns not only the identity of the person who signed some of the time sheets but also the number of TIME invoiced ;", "Thus it is the actual documents on which [ the employment agency ] bases its claim that are alleged to be forgeries ;", "Pursuant to the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court , the present proceedings must be stayed . \"", "ORG On DATE the investigating judge ruled that there was no case to answer in respect of the CARDINAL criminal complaints .", "ORG The appeal proceedings resumed in ORG , which upheld ORG judgment on DATE .", "In its judgment on the merits , following its interlocutory judgment of DATE , ORG referred \" for an account of the facts of the case and the claims of the parties to that judgment [ of DATE ] and the judgment of the court below ... \" . It ordered the applicant company , which had continued to argue that the documents were forgeries , to pay ORG CARDINAL in damages for having entered an appeal that was designed to gain time and was vexatious to the agency .", "ORG On DATE ORG appealed on points of law to ORG against the judgment of CARDINAL DATE . On DATE it filed its pleadings , in which it made no mention of either the criminal proceedings or ORG interlocutory judgment . It annexed a copy of ORG judgment of DATE , of its pleadings of CARDINAL DATE on appeal and of ORG judgment of CARDINAL DATE , against which it was appealing .", "In the proceedings in ORG the applicant company was represented by a member of the ORG d’Etat and ORG , as required by law .", "ORG On DATE ORG ) held that the appeal was inadmissible in a judgment which read as follows :", "\" Having regard to the first paragraph of Article CARDINAL of LAW ;", "On DATE the ORG company appealed on points of law against a judgment delivered on DATE by ORG which expressly refers to a previous judgment of DATE for an account of the facts of the case and the claims of the parties . That judgment of CARDINAL DATE thus forms an integral part of the judgment under appeal , but no copy or execution copy of it has been produced . It follows that the appeal on points of law is inadmissible . \"", "ORG LAW ( \" NORP \" ) contains the following provisions of a general nature :", "\" The parties shall conduct the proceedings in accordance with the responsibilities incumbent on them . They shall carry out the steps in the proceedings in accordance with the prescribed formal requirements and the time - limits . \"", "\" The court shall ensure the proper conduct of the proceedings ; it shall be empowered to lay down time - limits and order necessary measures . \"", "\" The claims of the parties and the grounds on which they rely shall be set out succinctly in the judgment , which shall be reasoned . \"", "The judgment shall set out the decision in the form of operative provisions .", "\" On appeal or if a case is remitted by ORG , the registrar shall forward the case file to the relevant court either within DATE of being requested so to do or within such other time as may be laid down in special provisions .", "The registrar shall , if appropriate , make copies of the documents necessary for the proceedings to continue . \"", "\" The case file of the court of first instance , which the registrar shall request as soon as an appeal to ORG is entered , shall be added to ORG case file . \"", "ORG The procedure for appeals to ORG , a special form of appeal , is written and relatively straightforward . However , strict time - limits apply . Appeals on points of law , which are brought against a decision and not against a party , are in principle presented by members of the ORG d’Etat and ORG . Members of the ORG d’Etat and ORG enjoy a monopoly in representing parties in those courts and have a dual role as their representatives and as officers of the court . Thus , for example , they receive full particulars from ORG as to the progress being made in the consideration of the case ( such as the appointment of a reporting judge , the lodging of his report , the appointment of an advocate - general and the setting down of the appeal for hearing ) and it is then their responsibility to forward this information to their client .", "Unlike members of the ordinary Bar , members of the ORG d’Etat and ORG enjoy the status of officiers ministériels ( ORG - appointed officers ) ; their number is irrevocably kept at TIME , pursuant to an ordinance of DATE . They are appointed by the ORG after a reasoned opinion has been submitted by ORG d’Etat and ORG , the President of ORG and the Vice - President of the PERSON d’Etat .", "Representation by a member of the ORG d’Etat and ORG is usually compulsory and any party receiving legal aid is entitled to counsel of his own choosing . However , in certain types of litigation ( such as cases concerning parental authority , industrial relations , immigration and political or occupational elections ) the parties are exempted by law from having to retain a member of the ORG d’Etat and ORG and the procedure is simpler and less formal .", "ORG The procedure is set out in LAW to CARDINAL ORG and is the CARDINAL usually followed in appeals to ORG .", "ORG The notice of appeal , by which the proceedings are commenced , is lodged with and registered by ORG registry . It is signed by counsel and contains , in particular , details of the decision appealed against . The registrar forwards it to the respondent \" immediately \" ( Article CARDINAL , first paragraph ) and must at the same time \" request the registry of the court which gave the impugned decision to forward the case file to him \" ( Article CARDINAL , second paragraph ) .", "ORG The appellant must lodge his pleading and serve it on the respondent within DATE , failing which he will be debarred from proceeding with the appeal . That pleading must contain the points of law on which he relies in his appeal , failing which the appeal will automatically be declared inadmissible without its being necessary for ORG to inform the parties beforehand ( Court of Cassation , ORG , CARDINAL DATE , ORG . civ . ) I , no . CARDINAL ; DATE , ORG . civ . I , no . CARDINAL ) .", "ORG Lastly , the pleading must be accompanied by the decisions and documents referred to in Article CARDINAL ORG , which provides :", "\" The appellant must file at the registry a copy of the decision appealed against served either on a party or on a lawyer ( avoué or avocat ) or an execution copy of that decision , together with a copy of any decision upheld or reversed in the decision appealed against , within the time allowed for lodging the pleading , failing which the appeal will automatically be declared inadmissible .", "The appellant must also annex any documents relied on in support of the appeal . \"", "More generally , in accordance with long - established case - law , the appellant must supply any document that it is necessary to read for the purposes of understanding and justifying a ground of appeal put forward , failing which that ground may be declared inadmissible ( Court of Cassation judgments of DATE , ORG , CARDINAL , CARDINAL ; DATE , ORG , CARDINAL , CARDINAL ; and DATE , ORG , CARDINAL , CARDINAL ) .", "The production required in the first paragraph of Article CARDINAL if the appeal is not to be automatically declared inadmissible has given rise to a considerable amount of litigation , and the courts have clarified the scope of this formal requirement .", "ORG As early as DATE ( Court of Cassation , Third Civil Division , CARDINAL DATE , PERSON and Others v. Swietek , ORG no . CARDINAL ) ORG held that the obligation to annex a copy of the decision appealed against \" has to be understood as applying not only to the decision appealed against , but also to decisions that are its necessary complement \" .", "It added subsequently that the filing of the judgment at first instance required by Article CARDINAL was essential because that judgment formed a single unit with the decision on appeal :", "\" It follows from Articles CARDINAL and CARDINAL of the ORG that the judgment at first instance forms a single unit with the judgment of the court of appeal as regards both its reasoning and the statement of the parties’ claims and arguments ; production of the judgment at first instance is accordingly a formal requirement that is mandatory as a matter of public policy . Any failure to comply with it , which must be raised by ORG of its own motion since the ORG is under an obligation to verify that appeals to it have been properly made , will result in the appeal on points of law being declared inadmissible .", "Since the appellant failed to produce a copy of the judgment at first instance as required , the appeal on points of law is inadmissible . \" ( Court of Cassation , Third Civil Division , DATE , NORP v. Delambre , ORG . civ . no . CARDINAL )", "ORG has further held , firstly , that where conflicting decisions have been given , the appellant must produce the impugned decision of the court of appeal and a copy of the decisions which conflict with each other ( requêtes , DATE , Jurisprudence générale Cassation , no . CARDINAL ) ; secondly , that in the event of an appeal on points of law against a judgment of a court of appeal dismissing a third - party application to set aside a judgment , the appellant must produce a copy of the judgment which gave rise to the application by the third party ( Court of Cassation , ORG , DATE , ORG . civ . II , no . CARDINAL ) ; and , thirdly , that in the event of an appeal on points of law against a decision given on appeal from a judgment of a court of first instance upholding part of a judgment in default on an application to set that judgment aside , the appellant must produce , in addition to the court of appeal ’s decision , the default judgment and the ruling on the application to set it aside , so as to enable ORG to have a complete understanding of the impugned decision ( Court of Cassation , ORG , CARDINAL DATE , ORG . civ . III , no . CARDINAL ) .", "ORG The issue of inadmissibility was often raised where a copy of the judgment at first instance was included in the case file of the proceedings that was sent by the registry of the court which had delivered the judgment . ORG of ORG held on this point that it could raise the mandatory objection of inadmissibility without informing the parties beforehand ( DATE , ORG , ORG . civ . no . CARDINAL ) . For the legal writers who approved this decision , it was not for ORG to warn parties , who were represented by counsel , of the risk that this appeal would be declared inadmissible if they did not produce the documents in time . ORG only obligation in law is to \" inform the parties of any grounds of appeal on points of law which could be raised by ORG of its own motion and invite them to make observations within a time it shall set \" ( LAW ) .", "Regulated by ORG CARDINAL to CARDINAL ORG , proceedings in which representation is not compulsory are unusual , although many special exemptions are granted . Formalities are kept to a strict minimum .", "Notice of appeal may be given merely orally . Notice is given to the court which delivered the decision appealed against , but may also be given in accordance with the procedural rules applying to appeals for which representation is compulsory and be lodged with ORG . The registrar registers the appeal and issues a receipt that reproduces the content of those Articles of the ORG in which the appellant ’s obligations are set out . He informs the respondent in a notice containing the text of the ORG relating to the respondent ’s obligations .", "ORG Article CARDINAL ORG provides :", "\" The registrar shall send the case file to ORG registry without delay together with :", "( i ) a copy of the notice of appeal ;", "( ii ) a copy of the receipt for the notice of appeal ;", "( iii ) a copy of the decision appealed against ; and", "( iv ) a copy of the judgment at first instance and any pleadings filed at first instance or on appeal .", "He shall immediately send to ORG registry any document which he receives subsequently . \"", "If the court finds that a document is missing , it stays the proceedings and orders \" reconstitution of the case file at the registry of the local court concerned for the purposes of curing the procedural defect \" ( Court of Cassation , ORG , DATE , ORG . civ . II , no . CARDINAL ) .", "ORG The requirement laid down in Article CARDINAL NCCP for proceedings in which legal representation is compulsory - namely , that a copy of the impugned decision must be produced within the time allowed for lodging the pleading - does not apply to proceedings in which the parties do not have to be represented ( ORG , DATE , ORG . civ . V , no . CARDINAL ) and an appeal will not be invalidated by a failure to comply with the formal requirements for giving notice of appeal .", "ORG An appeal on points of law may be declared inadmissible where a failure to carry out a formal requirement prevents the appeal proceeding ( for instance , a failure to identify the respondent or the decision being appealed against ) . The court will of its own motion declare an appeal inadmissible where the appellant has not stated the grounds of his appeal , at least in summary form , in his notice of appeal and fails to state them within DATE of lodging it .", "Filing a pleading is optional in proceedings in which representation is not compulsory . If , as a result of an error not attributable to the appellant , a pleading lodged within the prescribed time was not included in the court file with the result that the appeal was declared inadmissible , that decision must be set aside and the appeal declared admissible ( Court of Cassation , ORG , CARDINAL DATE , ORG . civ . V , no . CARDINAL ) . In general , ORG is less strict in cases in which representation is not compulsory , where the grounds of appeal may be stated in summary form ." ]

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[ "6" ]

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[ "On DATE the applicant was detained on charges of armed robbery , burglary and assault occasioning bodily injuries .", "On DATE a bill of indictment was lodged with ORG ( Sąd Wojewódzki ) . The applicant was indicted on the charges of armed robbery , burglary and assault committed together with CARDINAL other persons .", "The court listed hearings for CARDINAL , DATE and DATE but subsequently cancelled all of them because CARDINAL of the applicant ’s co - defendants had failed to appear . On the last of those dates , the hearing was postponed because GPE ( CARDINAL of the co - defendants ) was ill and the court considered it necessary to obtain a medical report determining whether or not he would be able to take part in the trial . The relevant report was received at the court ’s registry on CARDINAL DATE .", "DATE ORG set the trial for DATE but , on DATE , it adjourned the hearings since a court interpreter had failed to appear ( PERSON , one of the co - defendants , was of NORP nationality and therefore not able to follow the trial without the assistance of an interpreter ) .", "The first hearing on the merits was held on DATE . The court heard evidence from CARDINAL defendants . The trial continued on CARDINAL and DATE . In the course of those QUANTITY hearings , the court heard evidence from other defendants .", "The next hearing took place on DATE . During that hearing the applicant unsuccessfully asked the court to remit the case to ORG and order a further investigation with a view of indicting his wife . On DATE , in the course of the next hearing , he made a similar application and stated that if it was not granted , he would not attend hearings . Later , he apologised for his behaviour . A hearing listed for CARDINAL DATE started with a delay because it emerged from a medical certificate made by a prison doctor that the applicant was ill . On DATE the court however decided to proceed with the trial in the applicant ’s absence because , on the basis of another , subsequently obtained medical certificate , it came to the conclusion that he had misinformed the prison authorities as to the state of his health . The trial continued on CARDINAL and DATE and on DATE , DATE . Further hearings were listed for CARDINAL , DATE and DATE DATE . The hearing set for CARDINAL May did not take place because CARDINAL of the co - defendants had not appeared before the court . In the meantime , on CARDINAL DATE , the applicant , relying on his previous record of psychiatric treatment , asked the court to order that he be examined by a psychiatrist .", "On DATE the court ordered that evidence be obtained from psychiatrists to establish whether tempore criminis the applicant and CARDINAL of his co - defendants had acted in a state of diminished responsibility . It adjourned the trial to CARDINAL and DATE .", "On DATE the court requested ORG of GPE - Mokotów Prison to place the applicant and his co - defendants under psychiatric observation . The applicant underwent that observation from CARDINAL DATE to DATE .", "On DATE , DATE , CARDINAL and DATE , CARDINAL DATE and CARDINAL DATE , the applicant asked ORG to release him . He submitted that his detention on remand had meanwhile exceeded DATE and that it was putting a severe strain on his family , especially as his child was ill and his wife and mother needed his help .", "ORG examined all those applications on DATE . It dismissed them , holding that the applicant ’s detention should continue in view of the reasonable suspicion that he had committed the offences with which he had been charged and the need to secure the proper conduct of the proceedings . The court also considered that the length of the applicant ’s detention could not in itself be a decisive factor militating in favour of his release . Finally , it added that there were no grounds for releasing him in view of his family situation , in particular under LAW of LAW . In that respect , the court relied on a declaration made by the applicant ’s wife ( who stated that she did not wish to obtain any help from him ) .", "The applicant appealed , stressing that his detention on remand had meanwhile exceeded DATE but his trial had only just commenced . On DATE ORG ( Sąd Apelacyjny ) dismissed the appeal in view of the serious nature of the offences with which the applicant had been charged and the need to secure the proper conduct of the proceedings .", "Meanwhile , on CARDINAL DATE and on an unknown date in DATE , the psychiatric observations ordered with respect to the applicant ’s co - defendants had been completed . The psychiatrists’ reports were received at the court ’s registry on DATE and CARDINAL DATE , respectively .", "On DATE , ORG scheduled hearings for CARDINAL and CARDINAL DATE . It emerged from a subsequent decision of ORG ( Sąd Najwyższy ) of DATE ( see paragraph CARDINAL below ) that those hearings had been cancelled because the applicant ’s co - defendants had “ disorganised the trial ” . In particular , CARDINAL of them had inflicted injuries on himself .", "On DATE the applicant challenged the impartiality of the trial court . The challenge was dismissed on DATE .", "On DATE and CARDINAL DATE the applicant made further applications for release . They were dismissed on DATE and CARDINAL DATE respectively . The applicant appealed and , on DATE , submitted a medical certificate stating that he suffered from gastric ulcers . Following inquiries into the applicant ’s personal circumstances and his family ’s situation made by the relevant courts , the contested decisions were eventually upheld on appeal . The courts reiterated the grounds previously given for the applicant ’s continued detention .", "On DATE ORG held a hearing . However , the composition of the panel of the court had to be changed because CARDINAL of the judges had meanwhile withdrawn from the case . In consequence , the newly - composed trial court had to rehear evidence that had to date been obtained . The trial continued on CARDINAL , DATE . On DATE the court , considering that the applicant behaved in a disorderly manner ( he apparently interrupted the process of obtaining evidence from experts ) ordered that he be temporarily removed from the court room . A hearing listed for DATE was postponed to CARDINAL DATE because CARDINAL of the applicant ’s co - defendants had failed to appear . In the course of the hearing held on DATE the applicant for the second time challenged the impartiality of the trial court .", "On DATE the applicant asked the court to release him . On DATE he lodged another application for release . The court dealt with his applications on DATE and dismissed them , holding that there were no grounds for releasing him under LAW", "In the meantime , on DATE , ORG had made an application under LAW CARDINAL § CARDINAL of the Code of Criminal Procedure to ORG , asking it to prolong the applicant ’s and his co - defendants’ detention on remand until DATE , i.e. beyond the statutory time - limit set in such cases . ORG considered that the prolonged psychiatric observation of CARDINAL of the co - defendants , the need to obtain evidence and the fact that CARDINAL co - defendant had gone on a hunger strike and had inflicted injuries on himself fully justified the opinion that the defendants had deliberately obstructed the termination of the proceedings within the statutory time - limit and , consequently , gave sufficient grounds for extending their detention . Referring to the applicant , the court held that he had , by his conduct , obstructed the termination of the proceedings . It did not specify how the applicant prevented completion of the trial .", "ORG examined that application on DATE . It prolonged the applicant ’s and his co - defendants’ detention on remand until DATE .", "The trial was to continue on DATE but DATE for unknown reasons – it was postponed to a later date .", "On DATE the applicant – again unsuccessfully – challenged the impartiality of the trial court .", "The trial continued on CARDINAL , DATE and DATE . On DATE the court gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment and a fine of MONEY .", "The applicant appealed against his first - instance conviction in DATE . ORG dismissed the appeal on DATE .", "At the material time the rules governing detention on remand were contained in LAW of LAW of DATE - Code of Criminal Procedure ( ORG postępowania karnego ) entitled \" Preventive measures \" ( “ NORP zapobiegawcze ” ) . The LAW is no longer in force . It was repealed and replaced by LAW ( commonly referred to as the “ LAW ” ) , which entered into force on DATE .", "The Code listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .", "Article CARDINAL set out the general grounds justifying imposition of the preventive measures . This provision read :", "“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”", "Article CARDINAL § CARDINAL defined grounds for detention on remand . This provision , in the version applicable until DATE , provided , in so far as relevant :", "“ CARDINAL . Detention on remand may be imposed if :", "( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when he has no fixed residence [ in GPE ] or his identity can not be established ; or", "( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ; or", "( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or", "( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society .", "... ”", "On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL § CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :", "“ ( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent abode [ in GPE ] ; or", "( CARDINAL ) [ as it stood before DATE ] . ”", "Paragraph CARDINAL of Article CARDINAL provided :", "“ If an accused has been charged with a serious offence or an intentional offence [ for the commission of which he may be ] liable to a sentence of a statutory maximum of CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE imprisonment , the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . ”", "The Code set out the margin of discretion in maintaining a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate .", "Article CARDINAL § CARDINAL provided :", "“ A preventive measure [ including detention on remand ] shall be immediately lifted or varied , if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one . ”", "Article CARDINAL stated :", "“ Detention on remand shall be imposed only when it is mandatory ; this measure shall not be imposed if bail or police supervision , or both of those measures , are considered adequate . ”", "The provisions for “ mandatory detention ” ( for instance , detention pending an appeal against a sentence of imprisonment exceeding DATE ) were repealed on DATE by the LAW DATE on LAW to LAW and Other Criminal Statutes .", "Finally , Article CARDINAL stipulated :", "“ If there are no special reasons to the contrary , detention on remand should be lifted , in particular , if :", "( CARDINAL ) it may seriously jeopardise the life or health of the accused ; or", "( CARDINAL ) it would entail excessively burdensome effects for the accused or his family . ”", "Until DATE , i.e. the date on which the relevant provisions of the LAW une DATE ( see also “ Amendments to criminal legislation ” above ) entered into force , there were no time - limits for detention on remand in the court proceedings . From that date on , LAW laid down such time - limits . It read , in so far as relevant :", "” CARDINAL . The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning offences . In cases concerning serious offences [ offences for the commission of which a person is liable to a sentence of a statutory minimum of DATE imprisonment ] this period may not exceed DATE .", "NORP In particularly justified cases ORG may , on the application made by the court competent to deal with the case , ... prolong detention on remand for a further fixed period exceeding the time - limits set out in DATE and DATE , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph CARDINAL . ”", "On DATE , by virtue of the Law of DATE , paragraph CARDINAL of Article CARDINAL was amended and the grounds for prolonging detention beyond the statutory time - limits included also :", "“ ... other significant obstacles , which could not be overcome by the authorities conducting the proceedings ... ”" ]

[ "5", "6" ]

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

[]

[]

[]

[]

[ "The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in FAC in GPE . They are represented before the Court by Mr PERSON , a lawyer practising in Bad PERSON . The respondent Government are represented by PERSON , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The second applicant is the first applicant ’s son , born out of wedlock on DATE . The first applicant , who had full parental authority , raised the second applicant together with his CARDINAL - sister J. , born in DATE . J left the first applicant ’s household in DATE .", "From DATE onwards the first applicant experienced difficulties in educating the second applicant , who showed signs of aggressiveness and refused to follow orders . From DATE to CARDINAL DATE the second applicant was placed in a psychiatric institution for children and adolescents .", "Upon medical advice , the second applicant started ambulant therapy which was discontinued because the first applicant did not agree with the educational methods applied .", "In DATE further major difficulties arose when the second applicant had been caught smoking , lying and stealing from the first applicant . The first applicant considered placing the second applicant into an after - school care centre , but refrained , when ORG ( ORG ) refused to cover the costs as the first applicant was unwilling to disclose her financial situation . The tensions between the applicants persisted .", "On DATE a serious dispute broke out between the applicants when the second applicant refused to help his mother in gardening . The second applicant absconded and only returned in TIME . On his return , he fell and incurred a laceration on his head which had to be sewn with CARDINAL stitch .", "On DATE the conflicts resumed . The second applicant absconded and cycled to his CARDINAL - sister J. That same afternoon , the first applicant and PERSON called upon the police in order to achieve a settlement on where the boy should stay for TIME . Following an exchange of views , the second applicant agreed to return to the first applicant .", "The conflict between the applicants continued as the second applicant insisted on his wish to stay with ORG DATE the first applicant drove the second applicant to J. ’s place . Subsequently , she informed ORG about the second applicant ’s whereabouts .", "On DATE J. , who felt unable to cope with the situation , requested ORG assistance .", "On DATE ORG requested ORG ( ORG ) to withdraw parental authority from the first applicant . Relying on the statements made by J. and her partner , ORG submitted that the second applicant had been repeatedly beaten by the first applicant . In the course of the arguments which took place on CARDINAL DATE , the first applicant hit the second applicant on the fresh wound . On DATE the first applicant had stated that the second applicant should stay for DATE with J. , while she was leaving on vacation .", "By interim order of DATE ORG , without hearing either of the applicants , temporarily withdrew the first applicant ’s parental authority over the second applicant pursuant to section DATE of LAW ( Bürgerliches Gesetzbuch , see relevant domestic law below ) and transferred it to ORG . ORG found that the second applicant ’s physical well - being was jeopardised by an abuse of parental authority and that ORG had to take the necessary steps to avert this danger , in particular by ensuring medical treatment and accommodation . Due to the urgency of the matter it had not been possible to hear the first applicant before taking this decision .", "ORG placed the second applicant in a foster family for short - time accommodation . On DATE the second applicant was placed with the foster family PERSON On that same date ORG issued a certificate to the foster family according to which the second applicant ’s placement was planned as a permanent measure ( “ PERSON ist auf Dauer angelegt ” ) .", "On DATE the first applicant , who was represented by counsel , lodged a complaint against the interim order .", "On DATE , DATE and CARDINAL DATE ORG heard both applicants as well as J. and her partner .", "On DATE ORG transferred the case - file to ORG ( ORG ) to rule on the first applicant ’s appeal against the interim order .", "On DATE the presiding judge of ORG heard the second applicant in the foster family ’s household . According to the TIME drafted by the presiding judge , the second applicant declared that he felt at ease with the foster family and that he enjoyed a good relationship to the other foster child and , in particular , to the foster GPE grown - up son . With regard to the incident which led to the withdrawal of parental authority , the second applicant declared that he did not wish to talk about this and did not quite remember the details . He had left his mother ’s household because of the many arguments and beatings he had received . On his return , he had incurred the wound on his head . Some time later he had been beaten again . He further confirmed having given a faithful account of the incident to ORG judge .", "When questioned if he had had sufficient time to settle down during DATE , and if he wished to see his mother , the second applicant replied that he did not wish any personal contact to his mother . Even if his mother should promise that everything would change from now on , he was afraid that she would continue beating him and threatening him with sending him away or placing him in a psychiatric hospital .", "On DATE ORG held a hearing in the presence of the first applicant , the first applicant ’s counsel and a representative of ORG .", "On DATE ORG rejected the first applicant ’s appeal . That court found , firstly , that the withdrawal of parental authority had been in accordance with the pertinent provisions of sections DATE and CARDINAL of LAW . The events of DATE , which had been confirmed by both the second applicant himself , his sister J. and her sister ’s partner , justified the taking of measures relating to guardianship . There were substantial indications for an abuse of parental authority , which justified the assumption that there was a serious danger for the child ’s welfare .", "With regard to the present situation , ORG found that there was no reason to revoke or to modify the impugned decision . There remained serious indications that the child ’s well - being would be jeopardised if he returned to the first applicant ’s household . The second applicant had repeatedly stated that he had frequently been slapped by his mother . Even if this was not regarded as a decisive factor , the child ’s well - being would be jeopardised by the first applicant ’s deficiencies in parenting . The first applicant had conceded that she experienced serious educational difficulties . She had failed to resolve these problems by use of adequate educational measures or by availing herself of public assistance . The basis of confidence between mother and child was seriously disturbed . This had become obvious when the second applicant , during the hearing before ORG , had expressly declared that he presently did not wish any contact to his mother . There was no indication that the applicant had been influenced by third persons when expressing this wish .", "It was currently not possible to avert the danger by alternative means , such as external assistance , as the second applicant refused any cooperation with ORG .", "On DATE the first applicant lodged a further complaint ( PERSON ) against ORG decision , which she withdrew on DATE .", "On DATE the counsel PERSON , who acted on behalf of the first applicant , was granted access to the case files of the custody and access proceedings .", "On DATE the first applicant lodged a motion for bias against ORG judge , which was rejected by ORG on DATE . On DATE the applicant lodged a further complaint , which was rejected by ORG ( Oberlandesgericht ) on DATE .", "On DATE the case - file was returned to ORG .", "On DATE the applicant lodged a complaint for inactivity ( ORG ) against ORG .", "On DATE ORG , in the main proceedings , ordered the preparation of an expert opinion as to whether the second applicant ’s physical , mental or psychological well - being was jeopardised by an abuse of parental authority , by neglect or by the mother ’s failure through no fault of her own . It further appointed a curator ad litem to represent the second applicant .", "On DATE the first applicant lodged a complaint against the appointment of the curator ad litem .", "On DATE the first applicant requested the court to discharge the court - appointed expert on grounds of bias .", "On DATE ORG decided that the applicant ’s complaint for inactivity had been disposed of , as ORG had in the meantime taken measures to promote the proceedings by its decision of DATE .", "On DATE the applicant lodged a further complaint for inactivity .", "On DATE , in a public hearing before ORG , the applicant withdrew her complaint against the appointment of a curator ad litem .", "On DATE the case file was returned to ORG .", "On DATE ORG informed the parties that it intended to appoint the new expert PERSON On DATE the first applicant informed ORG that she opposed any further examination .", "On DATE ORG appointed the expert PERSON", "On DATE the applicant lodged a motion for bias against the expert PERSON , which was rejected by ORG on DATE .", "On DATE the applicant lodged a further complaint for inactivity against ORG judge .", "On DATE the first applicant lodged a further motion for bias against ORG judge .", "On DATE the applicant lodged a motion for bias against several judges of ORG and of ORG .", "On DATE ORG rejected the applicant ’s further complaint against the rejection of the applicant ’s motion for bias against the expert .", "On DATE ORG rejected the first applicant ’s complaint for inactivity on the grounds that ORG judge had not been entitled to take any procedural actions – with the exception of those which could not be delayed DATE as long as the motion for bias brought out against her by the applicant was still pending .", "On DATE the first applicant lodged a further appeal against ORG decision of DATE .", "On DATE ORG ( ORG ) rejected the applicant ’s further appeal as inadmissible .", "On DATE ORG , sitting as a chamber of CARDINAL judges , rejected the first applicant ’s motion for bias against ORG judge . Having analysed the entire case file , that court considered that there was no indication that ORG judge had failed in her professional duties . With regard to the allegation that the judge had delayed the proceedings , ORG found as follows :", "“ The mother ’s allegations , according to which the judge had violated her duties , in that she had , in particular , failed sufficiently to examine the case and that she had stayed inactive , are completely absurd . On the contrary , the judge attempted intensively to promote the proceedings and accurately to examine the facts in order to gain a stable basis for reaching her decision . Conversely , the mother and her counsels have delayed the proceedings by lodging various procedural requests , both admissible and inadmissible appeals and other motions , including rejections on grounds of bias , administrative complaints , criminal informations for perversion of justice and petitions ... ”", "On DATE the second applicant absconded from the foster family in order to avoid a meeting with a ORG official . He returned to his home - town ORG were he was seized by the police on CARDINAL DATE .", "On DATE , during a hearing before ORG , the parties agreed that the second applicant should be allowed to visit the first applicant and subsequently return to the foster family . DATE the second applicant declared that he wished to remain in the first applicant ’s household .", "On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the first applicant ’s constitutional complaint against the decisions of DATE and DATE .", "On DATE the Lauterbach ORG , following a further hearing , revoked its decision of CARDINAL DATE and restored parental authority to the first applicant . It noted that the second applicant had declared that he wished to stay with his mother and that both ORG and the child ’s curator ad litem had agreed that parental authority should be restored to the applicant .", "On DATE the first applicant requested to be granted by interim order the right to supervised visits on a DATE basis and to oblige ORG to submit regular reports on the second applicant ’s personal and school development . She complained that she had been denied access to her son since DATE .", "On DATE ORG ordered the preparation of an expert opinion concerning the question if and to what extent the first applicant should be granted visiting rights .", "On DATE the applicant requested ORG to withdraw the court - appointed expert F , as she appeared to be biased against her .", "On DATE ORG rejected the applicant ’s motion for bias .", "On DATE the psychological expert F submitted her expert opinion . She considered that the second applicant had experienced several times that his mother had threatened to give him away or had indeed given him away , for example by placing him in a psychiatric hospital or with his sister . As the second applicant emotionally and socially depended on his mother , this situation appeared to threaten his existence . This was aggravated by the fact that he did not have any positive memories of his biological father and that the contacts to his sister , as an important confidant , had been restricted by his mother . The second applicant tried to overcome this emotional and existential insecurity by accepting the foster family as the new centre of his life in order to become independent from his mother . When exposed to strong psychological pressure , the second applicant tried to avoid the situation or showed auto - destructive reactions , such as a suicide attempt in DATE .", "The applicant ’s wish not to see his mother had to be regarded as an attempt to distance himself . This wish had to be taken seriously . It was thus not appropriate to impose contacts against the second applicant ’s wishes . The expert recommended offering both applicants psychological support in order to enable them to understand the situation and to find solutions to the conflict .", "On DATE ORG scheduled an oral hearing for DATE .", "On DATE the applicant informed ORG that she requested a decision on the further complaint she had lodged on DATE against the rejection of her motion for bias against ORG judge lodged in the custody proceedings .", "On DATE the applicant lodged a complaint against the rejection of her action for bias against the court - appointed expert .", "On DATE ORG cancelled the hearing on DATE with regard to the applicant ’s further complaint regarding the motion for bias against the judge .", "On DATE ORG rejected the applicant ’s complaint against the rejection of the motion for bias against ORG judge .", "On DATE the ORG heard the expert , both applicants , and the foster mother . According to ORG minutes , the first applicant agreed that a psychological expert be commissioned in order to prepare the ground for contacts between the first applicant and , firstly , the foster family , and , subsequently , the second applicant .", "On DATE the court - appointed psychological expert W informed ORG that there had been a misunderstanding between the parties . While the first applicant expected to see her son under the expert ’s supervision , the foster family expected that the meetings took place between the first applicant and the foster parents , without the child ’s direct involvement . The first applicant did not wish to meet the foster parents . When the expert tried to meet the second applicant , the foster parents informed her that the child should be given the chance to settle down and that the child ’s psychotherapist considered that meetings should not begin before DATE .", "On DATE ORG judge requested ORG to assure that the foster parents did not prevent the expert from meeting the child .", "On DATE the expert W informed ORG that she did not see a possibility to carry out her task , as the foster parents refused her access to the child and were supported by the child ’s psychotherapist .", "On DATE the applicant lodged an action for inactivity against ORG judge .", "On DATE ORG rejected the first applicant ’s request to be granted the right to visit the second applicant . It further ordered ORG to inform the first applicant regularly about the child ’s development .", "ORG noted that the second applicant had repeatedly declared both before ORG and before ORG that he did not wish to see his mother , as he was afraid of being once again beaten by her . ORG concluded that the second applicant , who had matured according to his age , seriously and understandably opposed to visits . Under these circumstances , it was impossible to impose visits against his will . Before the background of the family conflicts and the circumstances which led to the withdrawal of parental authority , this would be contrary to the child ’s best interests . ORG further noted that the psychological expert F had found that the second applicant ’s wish to distance himself from his mother had to be taken seriously .", "This finding was confirmed by ORG own impression during the oral hearing of CARDINAL DATE . As the second applicant did not feel up to meet his mother , there was ground to fear that forced visiting contacts in the near future would lead to serious damages to his psychological stability and development .", "On DATE the first applicant lodged a complaint .", "On DATE ORG rejected the first applicant ’s complaint against the alleged inactivity of ORG on the ground that ORG had promoted the proceedings by its decision of DATE .", "On DATE the first applicant lodged an administrative complaint against ORG judge .", "On DATE the first applicant laid a criminal information against ORG judge .", "On DATE the judge rapporteur of ORG heard the first applicant and a representative of ORG . During the hearing , the judge phoned the second applicant ’s psychotherapist and arranged a meeting with the applicants for DATE in the psychotherapist ’s offices .", "On DATE and DATE the judge rapporteur arranged and attended CARDINAL meetings between the applicants .", "On DATE ORG held another hearing with the aim of arranging further meetings between the applicants . According to the court minutes , the rapporteur explained the second applicant that he had to abide by certain social rules and that he would not suspend the first applicant ’s access rights . The second applicant firmly objected to any further meetings with his mother . Upon suggestion of the second applicant ’s curator ad litem , a further meeting between the applicants and the judge rapporteur was scheduled for DATE .", "The second applicant did not appear at the meeting .", "On DATE and CARDINAL DATE the curator ad litem informed ORG that the second applicant was presently opposed to any personal contacts with his mother .", "On DATE the foster parents informed ORG that the second applicant continued to oppose any contact to his mother , in spite of the joint efforts made by themselves , ORG and the psychotherapist to convince him otherwise . It appeared that the second applicant could not stand the psychological pressure , as was demonstrated by the fact that he had absconded before the scheduled meeting and that his problems at school had aggravated since DATE .", "On DATE the first applicant lodged a constitutional complaint about the length of the proceedings relating to custody and access rights , which was rejected by ORG on DATE .", "On DATE ORG rejected the first applicant ’s complaint and suspended her access rights until the termination of the main proceedings on parental authority before ORG , or until DATE at the latest .", "ORG observed , at the outset , that a parent ’s right of access to his or her child was protected by LAW . If it was not possible to find an agreement on visiting contacts , the courts were called upon to reach a decision which respected both the constitutionally guaranteed rights of the parent DATE in the present case the mother – and the child ’s welfare . The remainder of the decision reads as follows :", "“ In the course of the instant proceedings , a curator ad litem was appointed pursuant to section CARDINAL of the Law on Non - Contentious Proceedings , and both PERSON and the applicant were repeatedly heard by the rapporteur ( see TIME of the hearings held on DATE , DATE , DATE and CARDINAL DATE ) . It became clear during all the personal hearings that PERSON presently does not wish any contacts to his mother and that he only took part in the meetings because these had been ordered by the court . This is not disproved by the fact that PERSON ’s second meeting with his mother , which took place on DATE , was less tense than the previous meeting on DATE . The child expressed during all the hearings that he felt at ease in the foster family , where he felt understood . Conversely , his attitude demonstrated that he did not have any confidence in his mother , but was sceptical towards her . He frequently declared that his mother was only lying to him . The present rejection of his mother culminated when PERSON absconded on the date of the third scheduled meeting on DATE . The senate acknowledges that this meeting was scheduled by the rapporteur against PERSON ’s will during the hearing on DATE . The rapporteur , the foster parents and the curator hoped that PERSON would attend that meeting because of the court order . PERSON ’s resistance , which was expressed by his running away , induces the senate to fear that it would lead to uncontrollable actions , including auto - aggressiveness , if he was forced to further personal contacts .", "The mother ’s right to personal access has to cede in view of this irrational behaviour . The senate acknowledges that the right to personal access forms part of the natural parental rights and of the parental responsibility . However , this right meets its limit at a point where there exists the danger of the child ’s causing damage to himself ( see section DATE of LAW ) .", "The rapporteur has tried to re - establish personal contacts between mother and child and arranged several meetings . [ The rapporteur ] tried to convince the mother to refrain from raising reproaches against third persons ( curators , foster parents , experts , therapists , judge , PERSON ’s CARDINAL - sister ) , and to try instead to keep these questions away from PERSON and to accept during the conversation with her child that the latter presently lived with the foster family , where he felt at ease . During the hearings held on DATE and DATE this strategy succeeded as long as the rapporteur was present and controlled the course of conversation . The mother ’s behaviour during TIME she spent alone with PERSON led to defence reactions , he closed himself up and did not see any other resort than running away .", "Having regard to the above , the mother ’s complaint had to be rejected as being unfounded . It is presently only possible to stabilise the child if PERSON is not forced to any personal contact with his mother and if he is given the opportunity to stabilise himself in an environment which he considers as safe .", "The senate considers that access rights have to be suspended for a longer period of time , as the pressure the child is exposed to in the course of the proceedings on parental authority requires protecting him for DATE . Taking into account that PERSON ’s individual rights are limited by the parental rights and that he is obliged to respect his mother ’s right of access to him , it appears appropriate to limit the suspension of access rights until the end of custody proceedings , or at the latest until DATE . ”", "This decision was served on the applicant ’s counsel on CARDINAL DATE .", "By telefax of DATE the first applicant lodged a constitutional complaint .", "On DATE an administrative officer of ORG informed the applicant that her constitutional complaint appeared to have been lodged out of the statutory time - limit of DATE , as the original version and annexes reached the constitutional court only on DATE .", "On DATE ORG refused to admit this constitutional complaint for adjudication without giving any reasons .", "Since DATE the second applicant stayed with his natural father . On DATE ORG transferred parental authority from the first applicant to the second applicant ’s father .", "On DATE , following the first applicant ’s complaint , ORG decreed that parental authority remained with the first applicant and ordered the father to return the child .", "“ ...", "( CARDINAL ) Care and upbringing of children are the natural right of the parents and a duty primarily incumbent on them . The ORG watches over the performance of this duty .", "( CARDINAL ) Separation of children from the family against the will of the persons entitled to bring them up may take place only pursuant to a law , if those so entitled fail in their duty or if the children are otherwise threatened with neglect . ”", "Section CARDINAL § CARDINAL of the Civil Code provides that the family courts shall be entitled to take the necessary measures to avert dangers to the physical , mental or spiritual welfare of a child caused by an abusive exercise of parental custody , by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers .", "Pursuant to section QUANTITY CARDINAL of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger can not be averted by other means , including assistance by public authorities .", "The second sub - paragraph of Article CARDINALa provides :", "“ Full [ parental ] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger . ”", "According to section DATE of LAW , a child is entitled to have access to his or her parents ; each parent is obliged to have contact with , and entitled to have access to , the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child ’s welfare .", "A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s well - being would be jeopardised ( section DATE ) ." ]

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[ "The applicant was born in DATE . He is serving a sentence in the PERSON prison .", "On DATE the applicant was apprehended by the police as he was suspected of having murdered a taxi driver . Criminal proceedings were brought and the applicant was detained on remand in that context .", "The main hearing before ORG was held on DATE . In his final speech the applicant requested , inter alia , that he should be released from detention . On DATE the ORG convicted the applicant of murder and of the unauthorised carrying of a weapon and sentenced him to DATE imprisonment . Neither the judgment nor the minutes mentioned the applicant ’s request for release . In terms of domestic law the applicant continued being detained on remand until the final effect of the judgment leading to his conviction .", "On DATE and on DATE the applicant appealed against ORG judgment .", "NORP In a letter dated CARDINAL DATE the applicant informed the presiding judge of ORG that he maintained his request for release from detention on remand of DATE .", "On DATE ORG dismissed the appeal . The judgment convicting the applicant became final on DATE .", "On DATE and on DATE respectively the president of ORG and ORG admitted , in reply to the applicant ’s complaint , that no decision had been taken on his application for release lodged at the hearing before ORG on DATE .", "Article CARDINAL ) provides that an accused person has the right to file an application for release from detention on remand at any time . Such an application has to be decided upon without delay . Where such an application was dismissed , the accused can renew it DATE after the relevant decision has become final unless the application is based on different reasons ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in Solkan .", "ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG Attorney - General .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant and her CARDINAL relatives lodged a request for restitution of the expropriated building and a compensation for the nationalised plot of land . Apparently , she made a similar request on DATE .", "On DATE GPE ( PERSON , “ the GPE ” ) rejected the applicant ’s claim for restitution because the previous owner , the applicant ’s brother - in - law , was not a citizen of GPE at the time of the expropriation .", "The applicant appealed to ORG ( Ministrstvo za okolje in prostor , “ the Ministry ” ) .", "On DATE the ORG dismissed the appeal .", "At an undetermined time , the applicant instituted administrative proceedings in ORG sodišče ) against the Ministry contesting its decision of CARDINAL DATE .", "On DATE the court upheld the applicant ’s claim and annulled the ORG ’s decision on procedural grounds . ORG subsequently re - examined the case .", "On DATE the Ministry annulled the LOC ’s decision and remitted the case for fresh consideration .", "On DATE the Convention took effect with respect to GPE .", "On DATE the Municipality again rejected the applicant ’s claim because the applicant ’s brother - in - law , was not a citizen of GPE and because her husband was not the owner of the property sought . The decision was served on the applicant on DATE .", "On DATE the applicant appealed to ORG .", "On DATE the ORG dismissed the appeal . The parties to the proceedings did not contest the ORG ’s decision .", "On DATE , following the judgment of ORG in another set of proceedings ( see below paragraphCARDINAL ) , the applicant lodged a request for reopening of the proceedings concerning the restitution of building .", "On DATE ORG v PERSON , “ the Unit ” ) rejected the applicant ’s request to reopen the denationalisation proceedings to declare her deceased husband a beneficiary of restitution .", "On DATE the applicant appealed to ORG .", "On DATE the ORG allowed the appeal , annulled the ORG ’s decision , and allowed the reopening of the proceedings .", "On DATE the ORG granted the applicant ’s claim and awarded the applicant compensation for expropriated property . It rejected her claim for restitution in natura .", "On DATE the applicant appealed to ORG .", "On DATE the Ministry dismissed her appeal .", "On DATE the applicant instituted an administrative dispute in ORG ( ORG sodišče ) , contesting the decision of DATE .", "On DATE the court dismissed the applicant ’s claim .", "On DATE the applicant appealed to ORG .", "On DATE the court dismissed the appeal .", "The judgment was served on the applicant on DATE .", "In the meanwhile , on DATE the applicant and her family instituted civil proceedings with ORG ( ORG sodišče v PERSON ) against the applicant ’s relatives who were her co - plaintiffs in the proceedings before GPE . The applicant claimed that her deceased husband and not her brother - in - law had been the owner of the expropriated building .", "On DATE the court issued a judgment finding that the applicant ’s husband was the owner of the nationalised building . The judgment became final on DATE .", "On DATE ORG delivered a judgment in another set of proceedings to which the applicant was a party . The court decided that the applicant ’s husband was the owner of the nationalised plot of land .", "On DATE , following the judgment of DATE , the applicant sought restitution of this plot of land .", "On DATE the ORG upheld her claim in part and ORG ( Slovenska odškodninska družba ) was ordered to pay compensation to the applicant .", "On DATE ORG appealed to ORG .", "On DATE the Ministry allowed the appeal , decreased the amount of compensation awarded to the applicant and remitted a part of the case to the Unit for fresh examination .", "The proceedings are still pending ." ]

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[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving his prison sentence in the Muş F - type Prison . ORG ( “ the Government ” ) are represented by their Agent .", "On DATE the applicant wrote a petition to ORG and requested his transfer to ORG , where PERSON was imprisoned . On DATE ORG found the applicant guilty of making propaganda in favour of an illegal organisation and sentenced him to DATE solitary confinement . The applicant 's appeal requests were rejected on DATE and DATE respectively by the Enforcement Judge and ORG ." ]

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[ "The applicant , who is a NORP national of NORP origin , was born in DATE and lives in GPE , GPE . She owns a house and a plot of land in GPE , GPE . The property previously belonged to her parents .", "NORP legislation on rent control has been the result of many historical and recent circumstances . Legislative schemes restricting rights of landlords and regulating increases in rent were already in operation before the Second World War . The description below of the general situation was based on the findings of ORG ( PERSON ) , which , on DATE , in CARDINAL of its judgments concerning the constitutionality of certain aspects of the legislation on rent control gave thorough consideration to the historical background of such legislation and the factors contributing to the preservation of restrictions dating back to an early stage of the communist regime in GPE .", "The rent control scheme was the consequence of the introduction of the so - called “ ORG management of housing matters ” ( publiczna gospodarka lokalami ) by the former communist authorities ( see paragraphs CARDINAL below ) . It was accompanied by provisions drastically restricting the amount of rent chargeable . The applicable provisions originated in the exceptionally rigid distribution of housing resources which characterised DATE of the communist regime in GPE .", "The circumstances did not change significantly after the end of the communist rule in DATE ; indeed , at DATE the situation of housing in GPE was particularly difficult , as was demonstrated , on the one hand , by a shortage of dwellings and , on the other hand , by the high cost of acquiring a flat . The ORG - controlled rent , which also applied to privately owned buildings , covered merely PERCENT of the actual cost of maintenance of buildings .", "In DATE those social and economic factors prompted the legislature not only to maintain elements of the so - called “ special lease scheme ” ( szczególny tryb najmu ) ( see also paragraph CARDINAL below ) in respect of ORG - owned dwellings but also to continue to apply that scheme DATE temporarily , for a period of DATE expiring on DATE to privately owned buildings and dwellings . In short , the system was a combination of restrictions on the amount of rent chargeable and of limitations on the termination of leases , even in respect of tenants who did not comply with the terms of the contract .", "The material collected by ORG in DATE included a report prepared by ORG ( PERSON i PERSON ) . According to that report , in DATE , after DATE of the operation of the DATE rent control scheme , the average rent as fixed under that scheme covered PERCENT of the costs of maintenance of residential buildings . The shortfall was to be covered by landlords . The scale of the problem was considered to have been very large since at that time CARDINAL dwellings ( PERCENT of the country ’s entire housing resources ) were let under the rent - control scheme ; that number comprised CARDINAL flats in buildings owned by private individuals . The total number of flats in GPE was estimated at CARDINAL . Flats in privately owned buildings subject to the rent - control scheme constituted PERCENT of the country ’s housing resources .", "The report stated , among other things :", "“ Before ... [ DATE ] , statutory rent determined by the ORG covered PERCENT of running maintenance costs . At present , after DATE of the operation of the [ DATE ] rent control scheme , municipalities set levels of rent covering on average PERCENT of maintenance costs . ...", "In respect of buildings owned by municipalities , the shortfall is covered by municipalities , which frequently use for that purpose surplus received by means of letting commercial LOC .", "As regards privately owned buildings , where tenants pay controlled rent , the shortfall is covered by owners of buildings . ”", "NORP In DATE the Government , in the course of the preparation of their bill amending the legislation on rent control ( see paragraphs CARDINAL et seq . below ) collected considerable material describing the present general situation of housing in GPE .", "The situation is characterised by a serious shortage of residential dwellings . According to the DATE National Population and Housing Census , the relevant deficit , defined as the difference between the number of households and the number of flats , amounts to CARDINAL flats . There is a particularly acute shortage of flats for lease .", "In the light of data collected by ORG ( PERSON ) on the overall financial situation of households , in DATE household expenses such as rent and electricity bills amounted to PERCENT of total expenses ( PERCENT in ORG households ) . At the same time PERCENT of NORP households were in rent arrears ( DATE : PERCENT ; DATE : PERCENT ; DATE : PERCENT ; DATE : PERCENT ; DATE : PERCENT ) .", "In DATE PERCENT of the population lived below the poverty line , of which PERCENT were below the abject poverty line . In DATE PERCENT of the population lived below the poverty line , of which PERCENT were below the abject poverty line .", "Various reports received by ORG confirmed that the provisions relating to the protection of tenants as applicable until DATE ( see also paragraphs CARDINAL below ) limited the supply of flats available for lease . In the authorities’ view , the introduction of the so - called “ commercial lease ” ( najem komercyjny ) – in other words a market - related lease DATE by removing restrictions on the increase of rent for privately owned buildings and freeing private landlords from their obligation to provide indigent tenants with an alternative accommodation upon the termination of their lease , should encourage private investors to build tenement houses designated solely to be let .", "The Government gave various figures to indicate the number of persons potentially affected by the operation of the rent - control scheme . They stated that according to information supplied by ORG , the operation of the relevant legislation affected CARDINAL landlords and CARDINAL tenants . Other sources cited by the ORG stated that the total number of persons concerned was CARDINAL landlords and CARDINAL tenants .", "The applicant ’s house was built in DATE as a CARDINAL - family house . It originally consisted of a duplex apartment , basement and attic .", "During the Second World War , officers of ORG lived in the house . In DATE ORG took it over and placed its officers there for some time .", "On DATE the Head of ORG of ORG ( Kierownik Wydzialu Mieszkaniowego Magistratu Miasta Gdynia ) issued a decision assigning the first - floor part of the duplex apartment to a certain ORG", "In DATE ORG ( Sąd Grodzki ) ordered the return of the house to the applicant ’s parents . They began renovation of the house but , shortly afterwards , were ordered to leave their property . In DATE ORG moved into the house .", "On DATE the Decree of DATE on ORG ( Dekret o publicznej gospodarce lokalami i kontroli najmu ) entered into force . Under its provisions , the house became subject to the so - called “ ORG management of housing matters ” ( see also paragraph CARDINAL above ) .", "In DATE , at a public auction , the authorities unsuccessfully tried to sell the house to ORG , who was at that time employed by ORG , an authority responsible for the ORG management of housing matters at the material time . At about the same time , the applicant ’s parents , likewise unsuccessfully , tried to recover their property .", "On DATE LAW ( Prawo lokalowe ) ( “ the DATE LAW ” ) entered into force . It replaced the ORG management of housing matters with the so - called “ special lease scheme ” ( see also paragraphs CARDINAL above and CARDINAL below ) .", "On an unknown date in DATE a certain ORG , who was at that time the Head of ORG of ORG ( PERSON Lokalowych Urzędu PERSON ) , tried to buy the house from the applicant ’s brother .", "On DATE the Mayor of GPE issued a decision allowing ORG to exchange the flat he was leasing in another building under the special lease scheme for the ground - floor flat in the applicant ’s house . That decision was signed on behalf of the Mayor of GPE by a civil servant who was subordinate to ORG On DATE ORG issued a decision confirming that under the provisions governing the special lease scheme the flat had been let to ORG for an indefinite time . Later , in DATE , the applicant tried to have that decision declared null and void but succeeded only in obtaining a decision declaring that it had been issued contrary to the law ( see also paragraphs CARDINAL below ) .", "On DATE the Head of ORG of ORG ( ORG i Ochrony Środowiska Urzędu PERSON w ORG ) ordered that the house became subject to ORG management ( przejęcie w zarząd państwowy ) . That decision took effect on DATE .", "On DATE ORG ( Sąd Rejonowy ) , ruling on an application by ORG ’s relatives , gave judgment , declaring that , after the ORG ’s death , her daughter ( PERSON ) and son - in - law ( PERSON ) had inherited the right to lease the first - floor flat in the applicant ’s house .", "On DATE the ORG gave a decision declaring that the applicant had inherited her GPE property . On DATE ORG entered her title in the relevant land register .", "On DATE the Mayor of GPE issued a decision restoring the management of the house to the applicant . On DATE , acting through her representative , she took over the management of the house from ORG . Shortly afterwards , she began to refurbish the house .", "On an unknown date in DATE the applicant set up a private foundation called ORG ( ORG ) . Since DATE then , she has been making unsuccessful efforts to locate the seat of the ORG in her house .", "After taking over the management of the house , the applicant initiated several sets of proceedings DATE civil and administrative – in order to annul the previous administrative decisions and regain possession of the flats in her house .", "On DATE the applicant asked ORG to order the eviction of her tenants . In DATE , on an application by the defendants , those proceedings were stayed . On DATE her claim was dismissed .", "In DATE the applicant asked ORG ( Sąd Wojewódzki ) to order ORG to relocate the tenants living in her house to dwellings owned by the municipality . She also asked the court to award her compensation , inter alia , for the fact that the authorities had deprived her parents and herself of any possibility of living in their own house , for damage to the property and arbitrary alteration of its use , and for mental suffering . On DATE ORG ruled that , under LAW of DATE ( LOC o najmie lokali mieszkalnych i dodatkach mieszkaniowych ) , ( “ the DATE LAW ) the defendant authority had no obligation to relocate the tenants to accommodation owned by the municipality . It dismissed the remainder of the claims . The applicant appealed .", "On DATE ORG ( Sąd Apelacyjny ) heard , and dismissed , her appeal . It observed that no provision of the DATE Act obliged the municipal authorities to relocate the applicant ’s tenants or , at her request , to provide them with alternative accommodation ( lokal zastępczy ) . The relevant provisions of LAW , namely section CARDINAL ) and ( CARDINAL ) ( see also paragraph CARDINAL below ) , stipulated that a tenant had to vacate a dwelling only if the owner had offered him another flat owned by him or the municipality had agreed to provide the tenant with an alternative accommodation owned or administered by it . As regards the applicant ’s claim for damages for financial loss sustained as a result of the administrative decisions , ORG observed that such claims could be determined by the courts of law only if a claimant had first applied for compensation to the administrative authorities and the outcome of the relevant administrative proceedings had been unfavourable . It referred the applicant to LAW ( Kodeks postępowania administracyjnego ) , which set out the rules governing the liability of public authorities for issuing wrongful decisions .", "In so far as the applicant sought compensation for damage to the house and for the alteration of its use , ORG considered that the defendant authority could not be held liable for the consequences of the laws which had previously been in force . In particular , it was not liable for the enactment of the post - war legislation which had introduced restrictive rules concerning the lease of dwellings in privately owned houses and the ORG management of housing matters . Nor was it liable for the implementation of the special lease scheme introduced by LAW and the operation of LAW , which incorporated certain similar rules for the protection of tenants whose right to lease flats in privately owned houses had been conferred on them by administrative decisions ( see also paragraphs CARDINAL below ) . Lastly , the court noted that the defendant could not be liable for any damage caused by the applicant ’s tenants .", "Subsequently , the applicant lodged a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) . On DATE ORG rejected that appeal on procedural grounds . The court held that the applicant had not complied with the relevant formal requirements ; in particular , she had not specified the errors of substantive civil law allegedly committed by the lower courts .", "In DATE the applicant asked ORG ( PERSON ) to declare null and void the decision of the Head of ORG of ORG of DATE . By virtue of that decision , the first - floor flat in the house had been assigned to ORG It had also formed a basis for granting the right to lease that flat in the applicant ’s house to ORG ’s successors ( see also paragraph CARDINAL above ) .", "On DATE ORG rejected her application . It noted that the impugned decision had been taken pursuant to the provisions of ORG issued by ORG DATE ( Dekret Polskiego Komitetu Wyzwolenia Narodowego o komisjach mieszkaniowych ) , a law which had at the relevant time governed all housing matters . It found that the decision had not been issued by the competent public authority and , in consequence , had not been lawful . Yet ORG could not declare the decision null and void ( stwierdzić nieważność decyzji ) because , pursuant to LAW , if DATE had elapsed from the date on which the unlawful decision had been made , ORG could only declare that the decision “ had been issued contrary to the law ” ( została wydana z naruszeniem prawa ) .", "The applicant appealed to ORG ( PERSON ) . On DATE the court dismissed her appeal because she had not exhausted an obligatory legal remedy in that she had not made an application to ORG for the matter to be reconsidered ( wniosek o ponowne rozpatrzenie sprawy ) .", "The applicant subsequently made such an application . On DATE the ORG upheld its decision of DATE . The applicant appealed to ORG . ORG ( Prokurator Wojewódzki ) joined the proceedings and lodged an appeal on the applicant ’s behalf .", "On DATE ORG rejected both appeals . It confirmed that the impugned decision had been unlawful . It added that there had been several procedural shortcomings ( for instance , the applicant ’s parents had not been notified of the proceedings and had never had any opportunity to challenge the decision ; in addition , no legal basis had been given for it ) ; however , in accordance with LAW , the court could not annul the decision but could only declare that it had been issued contrary to the law . In passing , the court observed that the above - mentioned procedural shortcomings could be rectified by means of reopening the proceedings .", "In DATE the applicant asked ORG of Appeal to declare null and void the decision of the Mayor of Gdynia of DATE . By virtue of that decision , ORG had been granted the right to lease the ground - floor flat in the applicant ’s house ( see also paragraph CARDINAL above )", "On DATE the ORG rejected her application . The applicant appealed to ORG .", "On DATE the court dismissed her appeal . It found that the flats in the applicant ’s house had been let under the special lease scheme introduced by the DATE LAW and that , accordingly , the mayor had been competent to issue the decision in question . It further observed that , despite some procedural errors committed by the Mayor of GPE ( which could be rectified by means of reopening the proceedings ) , the decision had had a legal basis and could not , therefore , be declared null and void .", "On DATE the applicant asked the Mayor of GPE to reopen the relevant proceedings and to declare the impugned decision null and void . The mayor rejected her application as being lodged out of time .", "On DATE the ORG of Appeal , of its own motion , reopened the proceedings . It found that the contested decision had been made on behalf of the Mayor of GPE by a civil servant who had been ORG subordinate and that that fact had in itself constituted a sufficient ground for reopening the proceedings , pursuant to Article CARDINAL § CARDINAL ( CARDINAL ) of LAW . That fact had also rendered the decision unlawful . However , since DATE had elapsed from the date on which the decision had been given , ORG could not annul it . It could merely declare that it had been issued contrary to the law , as laid down in LAW .", "The applicant appealed to ORG , alleging that the decision had never been served on the owners of the house and that it should have been declared null and void . On DATE her appeal was dismissed .", "On DATE the applicant asked ORG to reopen the administrative proceedings that had been terminated on DATE by the decision of the Head of ORG of GPE . By virtue of that decision , the applicant ’s house had become subject to the ORG management ( see also paragraph CARDINAL above ) . She further asked to have the decision declared null and void , submitting that it had lacked any legal basis . In particular , the house had incorrectly been classified as a “ tenement house ” ( dom wielorodzinny ) , whereas in reality it was , and always had been , a CARDINAL - family house and , as such , should not have become subject to the ORG management . The decision , the applicant added , had been made solely for the personal benefit and gain of ORG , who had at that time been the Head of ORG of ORG . In her view , it had been made to sanction DATE and likewise unlawful – decision of CARDINAL DATE whereby ORG had acquired the right to lease the flat in her house .", "On DATE the Mayor of GPE rejected her application , finding that she had lodged it outside the prescribed time - limit . On DATE the ORG of Appeal upheld the mayor ’s decision . Subsequently , the applicant appealed to ORG . On DATE the court quashed both decisions because the Mayor of Gdynia had not been competent to rule on the application .", "On DATE the ORG of Appeal reopened the proceedings terminated by the decision of DATE . On DATE ORG declared that that decision had been issued contrary to the law because the owners of the house had not been notified of the proceedings . It found that ORG had not acted with due diligence . In particular , it had made no efforts to establish who had been the rightful successors to the owners of the house . Indeed , at the material time the applicant and her brother had - on a regular basis - paid the relevant taxes on the property to ORG . Relying on LAW , the ORG refused to annul the decision because DATE had elapsed from the date on which it had been given .", "On an unspecified date in DATE the applicant asked the Governor of GPE ) to declare the decision of DATE null and void . The application was referred to ORG , a body competent to deal with the matter . ORG refused the application on DATE . It held that the matter was res judicata .", "The parties gave differing information on what was the actual usable surface area of the flats in the applicant ’s house , a factor relevant for the determination of the chargeable rent .", "The Government submitted that the usable surface area of the applicant ’s house was QUANTITY . They produced an inventory made on DATE in connection with the transfer of management of the house from ORG to the applicant ( see also paragraph CARDINAL above ) . The usable surface area of the house was estimated at QUANTITY ; no net living area was indicated . There were CARDINAL flats and no commercial LOC . The number of habitable rooms in the flats was CARDINAL . The surface area of those flats was estimated at QUANTITY . The total surface area of the house was indicated QUANTITY .", "The applicant stated that the total surface area of the house occupied by the tenants and for which they paid rent was QUANTITY . In that connection , she supplied a declaration of CARDINAL DATE , issued by ORG and Managing Agents ( GPE i PERSON ) , an agency that apparently administered her property . According to the declaration , since DATE the applicant ’s house had been divided into CARDINAL flats leased by means of the agreements originating in the administrative decisions described above .", "The usable surface areas of those flats for the purposes of fixing rent were as follows : flat no . CARDINAL = QUANTITY . m ; flat no . CARDINAL = QUANTITY . m ; and flat no . CARDINAL = CARDINAL sq . m. Accordingly , the total usable surface area occupied by the tenants was QUANTITY . m.", "On an unspecified date in DATE ORG asked ORG for a judgment determining the amount of the rent to be paid by him . On DATE the ORG gave judgment and determined the amount of rent at MONEY ( PLN ) per month . It ordered the applicant to pay costs in the amount of PLN MONEY .", "According to ORG and Managing Agents’ declaration of CARDINAL DATE ( see paragraph CARDINAL above ) , the amounts of rent to be paid by the applicant ’s tenants were as follows : for flat no . CARDINAL ( usable surface area of QUANTITY . m ) , occupied by GPE and GPE , ORG CARDINAL ; for flat no . CARDINAL ( usable surface area of QUANTITY m. ) , occupied by ORG , PLN MONEY ; for flat no . CARDINAL ( former attic ; usable surface area CARDINAL sq . m. ) , occupied by GPE , PLN MONEY . Dwelling no . CARDINAL ( apparently originally the bedroom of the applicant ’s parents , which was later used as a drying room ) , which had previously been used by ORG without any legal title or authorisation and for the use of which he had paid no fee , was at that time locked and sealed by the managing agent . ORG was served with a notice ordering him to pay PLN MONEY for the unauthorised use of the flat on pain of being evicted .", "At the oral hearing the Government informed the ORG that the rent paid by ORG and GPE on DATE ( DATE ) was ORG .", "At the ORG ’s request to produce evidence demonstrating the situation of the applicant ’s tenants , the ORG supplied a certificate issued by ORG ( ORG Społecznej ) on DATE . The certificate stated that ORG had received assistance from the centre as from DATE . He was to obtain a periodical social welfare benefit for DATE and DATE . In DATE he had received assistance for housing purposes . The certificate further stated that ORG had earlier been assessed as having the “ second degree of disability ” , the disability and its degree being subject to a medical verification in DATE .", "On DATE , in reply to an enquiry by ORG in connection with the present case , FAC ( Miejski Ośrodek Pomocy Społecznej ) stated that the applicant ’s tenants , ORG , J.P , GPE and GPE , were not receiving any assistance from the FAC and they had not received any assistance from social services for DATE , i.e. from DATE .", "In reply to the ORG ’s question as to the amount of controlled rent received by the applicant from DATE , the ORG stated that they had no details of the rent received by the applicant at the relevant time . However , they supplied indicators relevant for the fixing of a controlled rent , as determined by ORG for similar houses .", "DATE . According to this information , in DATE the rent per square CARDINAL was CARDINAL old Polish zlotys ( PLZ ) ; from DATE ORG CARDINAL ; from DATE to DATE PLN MONEY ; from DATE to DATE ORG ; from DATE to DATE PLN MONEY ; from DATE to DATE PLN CARDINAL.CARDINAL ; from DATE PLN CARDINAL.CARDINAL , and from DATE to DATE PLN MONEY .", "On DATE , following the entry into force of ORG judgment of DATE , it became possible for landlords to increase the rent PERCENT of the reconstruction value of the dwelling ( see also paragraphs CARDINAL , CARDINAL - CARDINAL and CARDINAL below ) .", "From DATE to DATE the relevant conversion index of the reconstruction value of the dwelling ( see also paragraphs CARDINAL and CARDINAL below ) was PLN MONEY . From DATE to DATE it amounted to ORG CARDINAL,CARDINAL.CARDINAL .", "In DATE , the conversion index was fixed at ORG . The Government submitted that the reconstruction value of the dwellings in the applicant ’s house was calculated on the basis of the following CARDINAL elements : PERCENT as above , the usable surface area of the flats and the relevant conversion index ( ORG ) . The DATE rent per square metre in the applicant ’s house corresponded to PERCENT of the conversion index of the reconstruction value of square metre divided by DATE ( PERCENT x PLN DATE PLN CARDINAL.CARDINAL/CARDINAL ) . It accordingly amounted to MONEY per square metre . Having regard to the usable surface of the house as indicated by the Government , the maximum DATE chargeable rent was ORG MONEY ( PLN QUANTITY ) . Taking into account the surface as indicated by the applicant , the relevant amount was ORG MONEY ( PLN MONEY x QUANTITY ) .", "According to the applicant , in DATE the free - market rent for the CARDINAL flats in her house would have amounted to MONEY ( ORG ) DATE ( MONEY respectively , depending on the size of the flat ) . In DATE the rent would have decreased to ORG CARDINAL,CARDINAL per month ( USD CARDINAL + USD CARDINAL + ORG CARDINAL ) . In DATE it would have further been reduced to ORG ( MONEY ) . She stated that her prognosis as to the decrease in rent was based on such factors as the devaluation of the house due to its age and the decreasing demand and increasing supply of flats available for rent on the market .", "The Cabinet Decree of DATE on ORG ( Dekret z CARDINAL grudnia DATE ORG o publicznej gospodarce lokalami i kontroli najmu ) , which came into force on CARDINAL DATE , introduced “ ORG management of housing matters ” , which also applied to dwellings or commercial premises in privately owned buildings ( see also paragraph CARDINAL above ) .", "Later , on DATE , the Decree of CARDINAL DATE on ORG ( Dekret o najmie lokali ) entered into force . Under its provisions , the ORG authorities administered all housing matters in the ORG and private sector alike . The public authorities were given power to issue a decision assigning to a tenant a particular flat in a privately owned building . Those provisions also laid down rules concerning rent control .", "LAW introduced the “ special lease scheme ” , which replaced “ ORG management of housing matters ” , although it did not significantly change the principles on which the right to lease was based . For instance , the right to lease a flat in a building subject to “ ORG management ” did not originate in a civil contract but was conferred on a tenant by an administrative decision . The owner of such a building had no say as to who could live in his or her house and for how long . The special lease scheme applied to residential and commercial LOC .", "Decisions on “ allocation to a dwelling ” ( przydział lokalu ) were , for all practical purposes , tantamount to “ granting ” a right to lease a dwelling ( or commercial LOC ) under the special lease scheme . They were issued by the relevant departments of the local council ( depending on which of the many reforms of the system of public administration was being carried out , those departments were called variously “ housing departments ” , “ departments of local management and environment ” , “ dwelling departments ” , etc . ) .", "This Act entered into force on DATE . It was intended to bring about a reform of the law governing the relationship between landlords and tenants . Although it abolished the “ special lease scheme ” and relaxed the control of rent by , for instance , allowing rents of commercial premises to be market - related and determined freely , as well as allowing rents for residential dwellings to be fixed freely in civil contracts between landlords and tenants , it maintained the control of rent of residential dwellings in which the right to lease a flat had earlier been conferred on a tenant by an administrative decision .", "DATE . The DATE Act introduced the system of “ controlled rent ” ( czynsz regulowany ) and set out detailed regulations on the calculation of rent for residential dwellings which had so far been subject to the “ special lease scheme ” . The provisions concerning controlled rent , the ratio legis of which was to protect tenants in a difficult financial situation during the transition from a ORG - controlled to a free - market housing system , were to remain in force until DATE .", "The DATE Act maintained , albeit with slightly modified wording , the rules concerning the protection of tenants against the termination of leases continued on the basis of previous administrative decisions and the right of succession to a lease .", "Section CARDINAL(CARDINAL ) of the Act read :", "“ CARDINAL . In the event of a tenant ’s death , his or her descendants , ascendants , adult siblings , adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation , shall , on condition that they lived in the tenant ’s household until his or her death , succeed to the tenancy agreement and acquire the tenant ’s rights and obligations connected with [ the lease of ] the flat , unless they relinquish that right to the landlord . This provision shall not apply to persons who , when the [ original ] tenant died , had title to another residential dwelling .", "NORP In cases where there is no successor to the tenancy agreement , or where the successors have relinquished their right , the lease shall expire . ”", "Section CARDINAL set out the following :", "“ CARDINAL . Under the lease agreement the tenant is obliged to pay the rent .", "NORP In the cases provided for by the present statute , the rent shall be determined in a manner specified in this LAW ( controlled rent ) . In other cases the rent shall be determined freely .", "NORP The rent shall be determined with reference to the physical state of the building in question , its surface area and the condition of the flat and other factors which increase or reduce the flat ’s value .", "The parties shall specify the rent in their agreement . ”", "Section CARDINAL , which , pursuant to section CARDINAL(CARDINAL ) ( see paragraph CARDINAL below ) , also applied to privately owned flats subject to the previous special lease scheme , provided :", "“ CARDINAL . Subject to the reservation set forth in CARDINAL , controlled rent shall be paid by tenants of dwellings belonging to municipalities , ORG , ORG legal entities or legal entities administering dwellings for non - profit - making purposes , except for housing cooperatives .", "NORP The maximum controlled rent must not exceed PERCENT of the reconstruction value of the dwelling ( wartość odtworzeniowa lokalu ) per annum .", "NORP The reconstruction value of the flat shall be the product of its usable area and the conversion index of QUANTITY of the usable area of the building .", "The [ relevant ] Governor shall , by means of an ordinance issued DATE , determine the conversion index of QUANTITY of the usable surface area of the residential building . ”", "Under the transitional provisions of the LAW the right to lease a flat conferred on a tenant by an administrative decision was to be treated as a lease originating in a lease agreement , concluded under the relevant provisions of LAW . Tenants of such flats were to pay controlled rent until DATE .", "Under LAW of the LAW the lease of a flat on the basis of an administrative decision issued under LAW was to remain in force .", "Section CARDINAL laid down further regulations in respect of such “ administrative leases ” . It provided , in so far as relevant :", "“ CARDINAL . NORP Under this law , a lease which originated in an administrative decision on the allocation of a flat , or had another legal basis [ that existed ] before ORG management of housing or special lease scheme was introduced in a given locality , shall be treated as a contractual lease signed for an indeterminate time under the provisions of this law .", "NORP Until DATE inclusive , the rent for flats let in the manner specified in paragraph CARDINAL in dwellings owned by natural persons shall be determined in accordance with the provisions concerning controlled rent .", "...", "NORP If an owner referred to in paragraph CARDINAL intends to dwell in his flat and with that intention has vacated the flat which he has hitherto let ... from the municipality , the tenant shall be obliged to vacate the owner ’s flat and to move into the flat [ offered to him ] , provided that the [ condition of ] the flat in question complies with the requirements laid down by this law in respect of alternative accommodation . If such is the case , the owner may terminate the lease under section CARDINAL ) .", "...", "If the owner ’s adult child or parents are to dwell in his flat , subsection CARDINAL ... shall apply by analogy .", "If the landlord has offered the tenant alternative accommodation which he or she owns himself or if , at the owner ’s request , such alternative accommodation has been provided by the municipality , subsection CARDINAL shall apply by analogy . ”", "Section CARDINAL of the Act set out a detailed list of landlords’ duties under a tenancy . It applied both to landlords letting flats for a freely determined , market - related rent and to landlords receiving controlled rent . It also listed the types of maintenance work to be carried out by landlords under lease agreements . That section provided , in so far as relevant :", "“ CARDINAL . NORP The landlord shall ensure that the existing technical facilities in the building are in working order ; shall enable the tenant to use lighting and heating in the dwelling ; shall ensure that the dwelling is supplied with cold and hot water and shall ensure the use of lifts , collective aerial , and other facilities in the building ;", "...", "NORP The landlord shall , in particular :", "( CARDINAL ) maintain in working order and keep clean any shared LOC and facilities in the building ; the same should apply to the vicinity of the building ;", "( CARDINAL ) carry out repairs in the building and its dwellings and facilities , and restore any building which has been damaged , regardless of the cause of such damage ; however , the tenant shall bear the costs of restoring damage for which he is liable ;", "( CARDINAL ) carry out repairs in the dwellings , repair or replace installations and technical facilities and , especially , carry out such repairs for which the tenant is not responsible ; in particular , he shall :", "a ) repair and replace the water supply installation in the building and the gas and hot water supply installations , and repair and replace the sewage , central - heating ( together with radiators ) , electricity , telephone and collective aerial installations – the latter , however , without fittings ;", "( b ) replace or repair furnaces , window and door woodwork , floors , floor linings and plasterwork .", "... ”", "In practice , if such a tenant had not fallen into CARDINAL CARDINAL months’ arrears of controlled rent , the lease could not be terminated unless he or she had used the flat “ in a manner inconsistent with its function ” , damaged the flat or the building , repeatedly and flagrantly disturbed the peace and upset order or had sublet the flat without obtaining the prior consent of the landlord ( sections CARDINAL and CARDINAL of the DATE Act ) .", "However , even if a tenant had fallen into rent arrears exceeding DATE , a landlord was obliged to notify him in writing of his intention to terminate the lease agreement and to allow him a DATE time - limit to pay off both the arrears and DATE rent .", "On DATE ORG , ruling on a legal question referred to it by ORG , declared unconstitutional section CARDINAL(CARDINAL ) read in conjunction with , inter alia , section CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL above ) . It found that those provisions were in breach of LAW ( protection of property rights ) read in conjunction with LAW rule of law and social justice ) and LAW ( principle of proportionality ) of the LAW ( see also paragraphs CARDINAL and CARDINAL - CARDINAL below ) and LAW No . CARDINAL to the Convention because they had placed a disproportionately heavy and , from the point of view of the permitted restrictions on the right of property , unnecessary financial burden on the exercise of property rights by landlords owning flats subject to rent control .", "The court ruled that the unconstitutional provisions should be repealed on DATE . That in practice meant that by that date ORG had to enact new , constitutional legislation dealing with the matter .", "Before giving its judgment , ORG asked the President of ORG ( Prezes PERSON i PERSON ) for information concerning the implementation of the CARDINAL Act and , more particularly , the manner of determining the “ conversion index of QUANTITY of the usable surface area of the residential building ” as referred to in section CARDINAL of the Act . According to the information received , levels of controlled rent had never reached the statutory PERCENT of the reconstruction value referred to in section GPE ) but were determined by the municipalities at PERCENT of that figure . As a result , the levels of controlled rent covered merely PERCENT of the maintenance costs of residential dwellings . The rest had to be covered by landlords from their own resources . That did not allow them to put aside any sums for repairs .", "In the judgment ORG attached much importance to the fact that the relevant regulations concerning controlled rent had brought about a situation whereby the expenses incurred by owners of dwellings were much higher than the rent paid by tenants and that the former “ had no influence on how the rates of controlled rent were determined ” . In its view , that shortfall of the rent actually received had resulted in the progressive reduction of the value of tenement houses and this , with the passage of time , entailed consequences similar to expropriation .", "The judgment contains extensive reasoning , the gist of which can be summarised as follows .", "“ CARDINAL of the essential elements of the right of property is the possibility of deriving profit from the object of ownership , which is of particular importance in a market economy . The legislature may regulate and limit this right in view of , among other things , the social context of enjoyment of property and duties towards the community that are inherent in ownership . In exceptional cases , ... it is even [ acceptable ] to exclude temporarily the possibility of ... deriving an income from goods that are the subject of ownership . However , if the limitations on a property right go even further and the legislature places an owner in a situation in which his property necessarily inflicts losses on him , while , at the same time imposing on him a duty to maintain property in a specific condition , it can be said that there is a limitation which impairs the very essence of that right . ...", "ORG observes that the applicable provisions very seriously limit the possibility for a landlord to use and dispose of his dwellings , as referred to in section CARDINAL(CARDINAL ) of the CARDINAL Act . In particular , under this section all earlier tenancy relationships , in so far as they originated in administrative decisions on the allocation of a dwelling ... were transformed into contractual leases for an indefinite period . ...", "ORG will not assess the compatibility of those regulations with LAW , as this is not the object of its ruling . It merely observes that , against that background , the owner of a building is practically deprived of any influence on the choice of tenants in his building and on whether the lease relationships with those persons should continue . ...", "Thus , the possibility [ for a landlord ] to enjoy and dispose of property is very considerably limited . While it is not totally extinguished , as he may still sell his building ( dwelling ) or take out a mortgage on it and there are no restrictions on succession rights , the exclusion of the owner ’s right to dispose of dwellings subject to the provisions of the DATE Act results in the depreciation of the market value of the building . By the same token , other attributes which have so far not been taken away from the owner , such as the possibility of enjoying and disposing [ of his property ] , are substantially reduced and his property right becomes illusory .", "At the same time , the legal provisions impose on the owner of the building a number of onerous duties ... Not only do most of the applicable laws impose specific duties on the owner but they also provide for specific penalties for failure to comply with those duties or to discharge them properly . ...", "ORG considers that LAW and , especially , its practical application have not secured a sufficient mechanism for balancing the costs of maintaining a building , its equipment and surroundings and the income from controlled rent . ...", "ORG considers it necessary to draw attention to CARDINAL further points which are relevant for the situation of the landlord .", "First , the inadequacy of controlled rent vis à vis real expenses for maintenance of a building does not allow ... [ landlords ] to put aside savings for repairs and for keeping the building in a good condition . As a result , the tenement houses are gradually losing value . In terms of property rights , this should be perceived as a process of gradual deprivation of this right , leading , with the passage of time , to results similar to expropriation . Also , it has a general impact on the community because many tenement houses are approaching the time of their ‘ technical ORG and , in consequence , not only will the owner lose his property but tenants will also lose the possibility of housing , which will hardly be compatible with LAW .", "Secondly , the inadequacy of controlled rent vis à vis real expenses for maintenance of a building has not been duly recognised by the tax laws ... [ Under those laws ] , landlords are treated in the same way as businessmen or a person letting dwellings for a profit and must bear the financial consequences of all losses caused by the lease of their dwellings . ...", "[ As regards the principle of proportionality laid down in LAW ]", "... it may be justified to fix rent in such a way that it will not be disproportionate to the financial standing of tenants , so that it will be possible for them to maintain a decent standard of living ( or at least a minimum standard ) after paying the rent . Thus , it is in conformity with the contemporary perception of a “ social state ” to demand some sacrifice from all members of society for the benefit of those who can not provide subsistence for themselves and their families . By the nature of things , the extent of that sacrifice depends on the level of income and imposes a heavier burden on those who are better off . By the nature of things , the owners of property may be required to make sacrifices , according to the general principle that ‘ ownership entails ORG . However , the distribution of burdens among specific members of society can not be arbitrary and must maintain rational proportions .", "In the circumstances obtaining in GPE , pursuant to LAW , it may be justified to maintain the provisions limiting landlords’ property rights and , more particularly , excluding unrestricted freedom in fixing rates of rent and other charges collected from tenants . ... It may still – in any event in the transitional DATE be justified to impose further - reaching restrictions on property rights , precluding the freedom to derive profit by fixing levels of rent in such a way as to cover only the costs of maintenance and upkeep of the building .", "However , an assessment of the DATE Act leads to the conclusion that the applicable restrictions do not stop there . The present regulations deliberately set the levels of controlled rents below the costs and expenses actually incurred by owners . That , in itself , would not necessarily have had to be considered unconstitutional had there been any parallel legal mechanism compensating for incurred losses . No such mechanisms have been set up . In consequence , the applicable provisions are based on the premise that property must – until DATE entail losses for the owner and that , at the same time , the owner has a duty to incur expenses to maintain his property in a particular condition .", "That means that LAW placed the main burden of the sacrifices that society had to make for tenants , or at least for tenants in a difficult financial position , on the owners of property . Besides , other remedies – such as , for instance , subsidising from the public funds the costs of maintaining and repairing buildings referred to in section CARDINAL ) , ensuring full recognition in the tax regulations for losses and expenses incurred by landlords and making the level of rent dependent on the tenant ’s income – have not been employed . Instead , the simplest means ( being apparently the cheapest in social terms ) have been applied , namely setting a low maximum level of rent and allowing the municipalities to make exceptions to that level . Consequently , it has been assumed that owners will cover the remaining costs of maintaining their property out of their own pockets . No proportionality whatsoever has been maintained in respect of the distribution of burdens ( sacrifices ) among the owners and the other members of society .", "ORG would stress once again that in the present context there is a constitutionally acknowledged necessity to protect the rights of tenants ... and this may be reflected in , among other things , provisions fixing a maximum level of rent . However , there is no constitutional necessity to afford them such protection mostly at the expense of private individuals – the owners of dwellings DATE because the duty to help the underprivileged and [ the duties inherent in ] social solidarity are incumbent not only upon those persons . It is possible to adopt other legal solutions so as to secure at the same time the necessary protection to tenants and the minimum financial means needed to cover the requisite costs to the landlords . ... It is not for ORG to indicate concrete solutions and to determine the ratio of costs to be incurred by tenants , landlords and the community as a whole . However , this court considers that there are no constitutional considerations to justify imposing the greater part of those costs on the landlords . ...", "Consequently , section CARDINAL(CARDINAL ) is incompatible with the LAW . A limitation on the right of property ... which is not ‘ ORG does not satisfy the constitutional requirements of proportionality .", "[ Other considerations ]", "The finding that section CARDINAL(CARDINAL ) infringes the principle of proportionality makes it unnecessary for ORG to determine whether that provision also infringes the very essence of the right of property since [ a further finding to that effect ] will not affect the merits of the ruling . It should merely be noted in passing that the question whether the “ essence ” of the right of property has been preserved must also be assessed ... against the background of the combination of existing limitations on this right . ... The manner in which [ rent control ] has been effected by section CARDINAL(CARDINAL ) , taken together with other provisions regarding privately owned buildings has [ resulted ] in the owners being deprived even of the slightest substance of their property rights .", "It is ORG opinion that , in consequence , the right to derive profit from property , which is an important element of the right of property , has been destroyed and , at the same time , the second element , the right to dispose of CARDINAL ’s property , has been stripped of its substance . In consequence , the right of property has become illusory and unable to fulfil its purpose in the legal order based on the principles listed in LAW [ principles of social market economy , economic activity , private ownership , solidarity , dialogue and cooperation ] .", "[ As regards the constitutional aspects of the situation of tenants ]", "A kind of obligation has been placed on the legislature to ensure that up to DATE tenancy relationships concerning municipal dwellings and [ privately owned ] dwellings should retain their present form , including the level of rent [ PERCENT of the reconstruction value of the dwelling ] ... ORG considers that , having regard to the principle of maintaining ORG confidence in the ORG and the law made by it and the principle of legal security , which ensue from the rule of law laid down in LAW and are binding on the legislature , renouncing that obligation will be admissible only in case of exceptional public necessity . At present , there is no such necessity ... It should be noted in passing that setting a time - limit for the operation of the rent - control scheme in buildings owned by natural persons also places an obligation on the legislature – for the benefit of landlords – to repeal the scheme in its present form by DATE . This obligation should also be seen from the perspective of the principle of maintaining ORG confidence in the ORG .", "[ Final considerations ]", "The constitutional inadmissibility of setting the income received by landlords below a certain minimum does not automatically mean that the rent chargeable to tenants has to be increased , because that problem can be resolved by allocating public financial resources . ”", "In its judgment of DATE ORG held that section CARDINAL of LAW ( see paragraph CARDINAL above ) , laying down landlords’ obligations , was incompatible with the constitutional principles of the protection of property rights and social justice because , in particular , it placed a heavy financial burden on them , a burden which was in no way proportionate to the income from controlled rent . ORG ruled that that provision should be repealed by DATE .", "Following ORG rulings of DATE and DATE , ORG adopted a new law governing housing matters and relations between landlords and tenants . The relevant statute DATE that is to say , LAW of DATE on the protection of the rights of tenants , housing resources of municipalities and amendments to LAW ( LOC o ochronie praw lokatorów , mieszkaniowym zasobie gminy i o zmianie LOC cywilnego ) ( “ the DATE LAW ) entered into force on DATE . It repealed the DATE Act and replaced the previous scheme of controlled rent with another statutory rent - control mechanism that restricted the possibility for landlords to increase levels of rent .", "The DATE Act was then successively amended . The most important amendments , adopted by ORG on CARDINAL and DATE , entered into force on DATE ( see paragraphs CARDINAL below ) .", "Section DATE CARDINAL Act listed situations where a landlord could increase rent . That provision , in the version applicable until DATE ( see paragraph CARDINAL below ) , read , in so far as relevant :", "“ CARDINAL . Increases in rent or other charges for the use of a dwelling , apart from charges that do not depend on the landlord [ e.g. those for electricity , water , central heating , etc . ] may not be made more often than once DATE ;", "NORP If a landlord increases other charges that do not depend on him , he shall be obliged to provide the tenant with a table of charges and the reasons for the increase ;", "NORP In DATE the increase in rent or other charges , except for charges that do not depend on a landlord , shall not exceed the average general DATE increase in prices for consumer goods and services in DATE in relation to DATE by :", "( CARDINAL ) PERCENT - if the annual rent does not exceed PERCENT of the reconstruction value of the dwelling ;", "( CARDINAL ) PERCENT - if the annual rent is PERCENT but not PERCENT of the reconstruction value of the dwelling ;", "( CARDINAL ) NORP PERCENT - if the annual rent is PERCENT of the reconstruction value of the dwelling .", "Information on the increase in prices referred to in the first sentence [ of this paragraph ] shall be communicated in official bulletins of the President of ORG ;", "...", "NORP The reconstruction value of a dwelling shall be the product of its usable area and the conversion index of the reconstruction cost of QUANTITY of the usable area of the residential building . ... ”", "A further restriction on rent increases by landlords followed from section CARDINAL ) of the CARDINAL Act , which provided that controlled rent could not exceed PERCENT of the reconstruction value of the flat . That provision was in force until DATE , the deadline that had already been set under LAW ( see also paragraph CARDINAL above ) .", "Section CARDINAL(CARDINAL ) read :", "“ Until DATE in all tenancy relations subsisting before the date of entry into force of this law , the level of rent in respect of dwellings that were subject to the controlled rent scheme on the date of the entry into force of this law , may not exceed PERCENT of the reconstruction value of the dwelling per year . ”", "Section CARDINAL of the DATE Act listed situations in which a landlord could terminate a lease agreement that originated in an administrative decision .", "Section CARDINAL(CARDINAL)-(CARDINAL ) read , in so far as relevant :", "“ CARDINAL . If a tenant is entitled to use a dwelling for rent , the landlord may give notice only for reasons listed in this provision ... Notice should , on pain of being null and void , be given in writing .", "NORP The landlord may give DATE notice effective at the end of a calendar DATE , if :", "( CARDINAL ) the tenant , despite a reminder in writing , still uses the dwelling in a manner contrary to the terms of the agreement or in a manner inconsistent with its function , thus causing damage ; or if he or she has damaged equipment designed for common use of residents ; or if he or she he has flagrantly or repeatedly disturbed order , thus severely upsetting ( czyniąc uciążliwym ) the use of other dwellings ; or", "( CARDINAL ) the tenant has fallen into CARDINAL months’ arrears of rent or other charges for the use of the dwelling and , despite being informed in writing of the landlord ’s intention to terminate the agreement and given DATE to pay off both the arrears and the current DATE ’s rent , has not paid those amounts , or", "( CARDINAL ) the tenant has sublet the flat or part of it , or allowed it , or part of it , to be used fee of charge by another without the landlord ’s authorisation ; or", "( CARDINAL ) the tenant uses the flat which has to be vacated in view of the impending demolition or substantial renovation of the building ...", "Pursuant to section ORG ) , a landlord who received rent which was PERCENT of the reconstruction value of the dwelling could terminate the agreement if a tenant had not lived in the flat for DATE or if he had title to another flat situated in the same town .", "Section CARDINAL(CARDINAL ) provided that a landlord could terminate the agreement with CARDINAL months’ notice if he intended to dwell in his own flat and had provided the tenant with “ substitute accommodation ” ( lokal zastępczy ) or the tenant was entitled to a dwelling which met conditions for “ substitute accommodation ” .", "Under section CARDINAL(CARDINAL ) , a landlord could terminate the agreement upon DATE notice if he intended to dwell in his flat but had not provided the tenant with any “ substitute accommodation ” .", "However , section ORG ) further limited the possibility of terminating leases . It stated that if a landlord intended to terminate a lease on the grounds mentioned in section CARDINAL ) ( rent arrears unpaid despite the fact that a warning notice had been served and an extra time - limit had been set for payment ) and if the tenant ’s income would entitle him to obtain a lease on “ social accommodation ” ( lokal socjalny ) belonging to the municipality , no notice could be given unless the landlord had proposed a settlement to the tenant concerning the arrears and running charges .", "The CARDINAL Act , in the version applicable up to DATE , did not contain any specific provisions setting out the duties of landlords and tenants with regard to maintenance and repairs of dwellings and residential buildings . Those issues were governed partly by the relevant provisions of LAW ( which applied in so far as a given matter had not been addressed by LAW ) and partly by LAW of DATE on ( Prawo budowlane ) ( “ the LAW ” ) , which lays down the general duties of owners of buildings .", "Article CARDINAL of LAW , which lays down a general rule , reads , in so far as relevant :", "“ CARDINAL . NORP The landlord should give the object [ of a lease ] to the tenant in a usable state and should keep it in such a state for the duration of the lease .", "NORP Minor repairs related to the normal use of the object [ of the lease ] are incumbent on the tenant . ”", "LAW reads , in so far as relevant ;", "“ CARDINAL . After the termination of a lease , the tenant shall be obliged to return the object [ of the lease ] in a condition not worse [ than when he took possession of it ] ; however , he or she shall not be responsible for any deterioration of the object caused by reasonable wear and tear . ”", "Article CARDINAL lists minor repairs for which a tenant is responsible . It reads as follows :", "“ Minor repairs for which the tenant is responsible are , in particular : minor repairs of floors , doors and windows , painting of walls and floors and the inner side of the flat ’s entrance door , as well as minor repairs of installations and technical equipment that enable the use of lighting , heating , the water supply and the sewage system . ”", "Section CARDINAL of LAW provides :", "“ The owner or manager of a building shall be obliged to maintain and use the building in accordance with the rules set out in section CARDINAL(CARDINAL ) . ”", "Section CARDINAL(CARDINAL ) states :", "“ The conditions for use of a building shall be secured in accordance with its purpose , in particular in respect of :", "( a ) the water and electricity supply and , if need be , the supply of heating and fuel , regard being had to their effective use ;", "( b ) sewage , waste disposal and rainwater drainage . ”", "Article CARDINAL of the Civil Code provides , in so far as relevant :", "“ In the event of a tenant ’s death , the following persons shall succeed to the tenancy agreement : his or her spouse if the latter has not been a party to that agreement , his or her children , his or her spouse ’s children , any other persons to whom he was obliged to pay maintenance , and a person living with the tenant in de facto marital cohabitation .", "NORP The persons referred to in paragraph CARDINAL shall succeed to the tenancy agreement if they lived in the tenant ’s household until his or her death .", "NORP If there are no persons in the categories referred to in paragraph CARDINAL , the lease agreement shall expire . ”", "On DATE the Ombudsman ( PERSON ) made an application to ORG and asked , inter alia , that section CARDINAL(CARDINAL ) of the CARDINAL Act ( see paragraph CARDINAL above ) be declared incompatible with the constitutional principle of the protection of property rights . The ORG referred to numerous complaints that he had received from landlords , who claimed that levels of rent as determined under that section did not cover the basic maintenance costs of residential buildings . He also submitted that the recent rules for the determination of rent put landlords at a bigger disadvantage than the rules which had been laid down in the DATE Act and which had already been repealed as being unconstitutional .", "He criticised the legislation on the ground that it was exceptionally inconsistent . He referred , in particular , to DATE in his view erroneous – statutory correlation between rent increases and the increase of prices for consumer goods and services , which were not related in reality to the costs of maintaining a building . He added that there were still no provisions to allow the landlords to recover losses incurred in connection with expenses for maintenance of property .", "NORP The representatives of ORG ) asked ORG to reject the application .", "The court invited organisations of landlords and tenants to take part in the proceedings and submit their observations in writing . ORG , ORG ( ORG ) and ORG ( Ogólnopolskie ORG ) filed their pleadings on CARDINAL , DATE and DATE respectively .", "GPE Owners supplied considerable statistical material , showing that the level of controlled rent represented on average PERCENT of the reconstruction value of the building , which in turn amounted to PERCENT of the costs of maintenance of residential buildings . They presented a sample calculation of DATE rent based on the average reconstruction value , the average size of a flat and the average gross income .", "Assuming that the average reconstruction value was ORG , that PERCENT of that value was the average maximum reached by controlled rent and that the average flat had a surface area of QUANTITY , the average DATE rent amounted to ORG CARDINAL . That amount , they stressed , represented PERCENT of the average gross income , whereas , according to them , in the ORG countries rent accounted for PERCENT of the average gross income .", "The All - Polish ORG submitted , among other things , that the impugned legislation was in breach of the constitutional principle of proportionality because a group of CARDINAL landlords had to bear the main burden of social protection afforded by ORG to CARDINAL tenants , without any financial support from CARDINAL NORP taxpayers .", "ORG considered that the contested provisions were compatible with the LAW . It drew attention to the fact that a large group of tenants , especially those who had been granted the right to a lease by means of administrative decisions , were in a poor financial position . It stressed that during the period of ORG management of housing matters those tenants had made investments and had thereby contributed to the maintenance costs of buildings , even though they had not been legally obliged to do so . At the hearing , in reply to the questions from the judges , the President of the ORG admitted that tenants paying controlled rent also included well - off persons , in respect of whom an increase in rent would be justified .", "On DATE ORG , sitting as a full court , declared section CARDINAL(CARDINAL ) of the DATE Act unconstitutional as being incompatible with LAW and CARDINAL and LAW ( see also paragraphs CARDINAL and CARDINAL below ) . The provision was , accordingly , repealed . The repeal took effect on DATE , the date of the publication of the judgment in ORG ) .", "In the reasoning for its judgment , ORG extensively cited its judgment of DATE ( see paragraphs CARDINAL above ) .", "In conclusion , it held that the fact that LAW had abolished the scheme of rent control had not improved the situation of landlords because , instead , it had introduced a defective mechanism for controlling increases in rent . In its opinion , section GPE ) had not only “ frozen ” the disadvantageous position of landlords , a situation which had already been found to be incompatible with the LAW , but had also , owing to the changing economic circumstances , significantly reduced any possibility of increasing rent to cover expenses incurred by them in connection with the maintenance of property .", "The court repeated what it had already stated in its judgment of DATE , namely that the relevant provisions placed the main burden of the sacrifices that society had to make for the benefit of tenants in a difficult financial position on the owners of property . It went on to find that section GPE ) perpetuated the state of a violation of property rights that had subsisted under LAW , especially as landlords had not been relieved of any of their previous duties in respect of maintenance of property .", "The main thrust of ORG reasoning was as follows :", "“ During the transition from controlled rent to contractual rent it is necessary to control the increase in rent . ... In most NORP countries legislative bodies exercise control over rent increases . The introduction of such a mechanism into NORP law seems to be particularly justified and the need for it follows quite evidently from the shortage of flats and the absence of a lease market which would influence rates of rent . This very low supply of flats for rent has caused a situation in which tenants are exposed to undue demands from landlords . Hence there is a need to regulate rent increases .", "While recognising this necessity , ORG is convinced that the mechanism introduced by the impugned provision is defective and is objectively inappropriate for accomplishing the aims pursued by the legislature . ...", "To begin with , ORG will examine the impact of the operation of section CARDINAL(CARDINAL ) of the DATE Act on landlords who were subject to controlled rent under LAW . In this court ’s view , the contested provision has not only “ frozen ” the disadvantageous position of landlords subsisting QUANTITY , a situation which was already found to have been incompatible with the LAW , but has also actually aggravated that situation on account of changing economic circumstances . ...", "At the time when the present legislation entered into force , tenants paid rent determined by the municipalities . [ The rent paid ] , according to the information supplied by ORG , covered merely PERCENT of the costs of maintenance of residential buildings . LAW did not increase rent to the level that could have been established according to the principles set out by ORG in [ the judgment of DATE ] . Nor did the legislature give landlords an opportunity to increase rent to a level ensuring recovery of their expenses . LAW has frozen rates of rent and fixed them as a reference level for the calculation of future increases . ...", "In ORG opinion , in order to arrive at reasonable level of rent it is necessary to take CARDINAL of the following CARDINAL measures : either a CARDINAL - off increase in deflated rates of controlled rent , accompanied by a restrictive protection of tenants against further increases or , while freezing the applicable rates , permitting considerable increases in relatively rapid succession until an acceptable level has been reached . However , the legislature fixed an unreasonably low basic rent and allowed only strictly regulated increases , correlated with the inflation rate . The legislature did not take into account the fact that the rate of inflation was constantly declining , which means that permissible increases have been insignificant , amounting merely to a few percentage points of the basic rent and giving no opportunity , for purely mathematical reasons , to reach levels that would ensure profitability , or at least recovery of maintenance costs . The decrease in the inflation rate , although a generally positive sign of economic stability , has resulted in the stagnation of rent at low levels .", "The deterioration of the situation of the landlords receiving controlled rent is also shown by a comparison of rent increases under LAW with increases permissible under LAW . As transpires from information supplied by ORG [ in respect of the operation of the DATE Act ] , at the relevant time municipalities raised controlled rent DATE to a significant extent : in DATE , when the inflation rate was PERCENT , by PERCENT on average , but in DATE , when the inflation rate was PERCENT , by PERCENT . The pace of transition to a reasonable level of rent was faster than at present , if only because municipalities , themselves owning residential buildings , had a strong interest in securing genuine increases in rent . Finally , the previous regulations gave landlords the hope of relaxing rent policy . Irrespective of the rates of controlled rent imposed on them by municipalities , they knew that from DATE they would be able to negotiate rent freely . However , that encouraging prospect was wiped out by section CARDINAL(CARDINAL ) of the CARDINAL Act . Even though the ceiling of PERCENT will no longer apply after [ DATE , given the provision of section GPE ) , this ceiling will not be reached in reality .", "In ORG view , the above circumstances give sufficient grounds to find that the situation of landlords who formerly received controlled rent is now unquestionably less favourable than it used to be under LAW . ... [ O]n the contrary , section GPE ) has perpetuated the violation of the right of property . At this point , it is necessary to determine how the landlords’ situation looks in other respects , apart from the restrictions on rent increases . If , following the ... judgment of CARDINAL January CARDINAL , the legislature had significantly changed any aspect of the legal position of landlords , thereby compensating for losses resulting from reduced rent , the evaluation of levels of rent in the present case would have had to be based on other criteria than those referred to by this court in DATE .", "Since DATE there have been no changes to legislation , apart from the enactment of the CARDINAL Act , which seriously aggravated the situation of landlords . They still bear the burden of obligations imposed by LAW , whose non - fulfilment , as stressed by the ORG , is subject to penalties . There have been no changes to regulations on income tax , at least in respect of deductions from tax ( or from taxable income ) of amounts spent on maintenance of buildings in which flats are let to tenants . Nor has the legislature introduced preferential loans for repairs . ... ORG also points out that LAW has not materially improved the situation of landlords in respect of termination of leases . ...", "Accordingly , it is fully justified to rely on this court ’s findings in respect of section CARDINAL(CARDINAL ) of LAW . Even though the provisions under consideration have changed , and the ORG is now considering completely different legal instruments ( control of rent increase as opposed to the scheme of rent control under LAW ) , the core of the dispute and the issues under consideration remain essentially the same , namely the situation of landlords on whom the legislature has imposed reduced levels of rent . In addition , section GPE ) leads to a difference in the treatment of landlords , depending on whether they are parties to lease relationships formerly governed by the rent control scheme , or to lease contracts based on freely determined rent . As shown above , in practice the rent increase mechanism adversely affects the first group of landlords and , and the same time , unjustifiably and at the tenant ’s expense , favours the second group .", "In view of the foregoing , the Constitutional Court finds that the [ operation of ] the contested provision is tantamount to the continued violation of the right of property vested in a specific group of landlords , namely those who entered into a lease relationship by virtue of administrative decisions on the allocation to a dwelling , or on another basis , prior to the introduction of ORG management of housing matters in a given municipality . Not only did the legislature fail to adjust rates of controlled rent , despite their having been found to be unconstitutional , but in fact , through the introduction of restrictive provisions on rent increases , practically froze such rents at levels that can not be regarded as consistent with constitutional guarantees of the right of property . ...", "It is worth reiterating , having regard to the [ judgment of DATE ] , that the restrictions in question are undoubtedly guided by the need to protect public order and the rights of other persons , namely tenants . However , according to ORG case - law , LAW implies that restrictions on the rights guaranteed therein are necessary . In respect of the rent [ control scheme ] , ORG qualified as “ necessary ” – at least during DATE the restriction on the right of property “ precluding the freedom to derive profit , by fixing levels of rent in such a way as to cover only the costs of maintenance and upkeep of the building ” . A reduction below that minimum was seen by this court as unconstitutional . Placing the financial burden of subsidising rent on a single social group , namely landlords , was also considered to have been unconstitutional since “ the duty to help the underprivileged and [ the duties inherent in ] social solidarity are incumbent not only upon those persons ” . ORG envisaged and still envisages the possibility of applying other legal solutions ... which would result in a more uniform social distribution of the burden linked to the necessity to satisfy housing needs . It is therefore unnecessary to place the entire burden on the single group of landlords . Consequently , ORG considers that the restriction resulting from section CARDINAL(CARDINAL ) ... does not meet the criteria established by the principle of proportionality and goes beyond the tolerable extent of limitations on the right of property set out in LAW .", "ORG is not competent to fix minimum levels of rent ... [ However , ] from the point of view of the protection of landlords’ rights , [ it ] stresses again the crucial importance of the correct determination of the costs of maintenance and upkeep of residential buildings . This constitutes the absolute minimum rate . ...", "As regards the implementation of the constitutional rights of tenants , ORG stresses that , although in the present judgment section CARDINAL(CARDINAL ) of the CARDINAL LAW has been found unconstitutional , the LAW still imposes significant restrictions on the freedom to increase rent . The most important of them is definitely section CARDINAL ) , which remains in force and which provides that ... up to DATE inclusive the annual rent may not exceed PERCENT of the reconstruction value of the dwelling . ”", "On DATE the Constitutional Court heard a constitutional complaint lodged by a certain PERSON , challenging the constitutionality of section CARDINAL(CARDINAL ) and section CARDINAL(CARDINAL ) of LAW ( see paragraphs CARDINAL and CARDINAL above ) . He submitted that those provisions were incompatible with LAW protection of property rights ) of the LAW read in conjunction with LAW ( principle of proportionality ) .", "In their written pleadings , ORG and representatives of ORG asked the court to discontinue the proceedings in so far as they concerned the constitutionality of section CARDINAL(CARDINAL ) since it had already been repealed by the judgment of DATE , and to hold that section DATE ) was compatible with the LAW .", "At the oral hearing , ORG stated that he intended to pursue his complaint only in so far as section DATE ) was concerned .", "ORG held that section DATE ) was compatible with the LAW and found :", "“ As emerges from [ ORG judgments of DATE and DATE ] , the question of maintaining the maximum ceiling on rent has already been examined by this court and the measure was considered to have been necessary from the point of view of public order DATE at least in the transitional period . The need to protect tenants against unduly high rent is justified by the situation of housing in GPE , which is the consequence of ORG management of housing and has resulted in a commonly experienced shortage of flats .", "A limitation on levels of rent – such as the one introduced by the contested provision – does not impair the essence of the right of property because it does not deprive owners of essential elements of that right . It has to be stressed that the right to a lease is one of the pecuniary rights protected by LAW and that restrictions on the right of property is inherent in many pecuniary rights , including the right to a lease . The contested section has set a maximum ceiling on rent with a clear time - frame – up to DATE and this also may have an impact on whether a temporary restriction on the right of property may be regarded as not impairing its essence .", "It also has to be stressed that the setting of a clear time - frame in section DATE ) implies an obligation of the legislature towards landlords , which must be assessed from the point of view of the principle of ORG confidence in the ORG and the law made by it . ”", "DATE LAW states :", "“ GPE shall be a democratic ORG ruled by law and implementing the principles of social justice . ”", "Article CARDINAL lays down the basic principles on which GPE ’s economic system is founded . It reads :", "“ A social market economy , based on freedom of economic activity , private ownership , and solidarity , dialogue and cooperation between social partners , shall be the basis of the economic system of GPE . ”", "Article CARDINAL § CARDINAL reads :", "“ Any limitation on the exercise of constitutional freedoms and rights may be imposed only by statute , and only when it is necessary in a democratic ORG for the protection of its security or public order , or for the protection of the natural environment , health or public morals , or the freedoms or rights of other persons . Such limitations shall not impair the essence of freedoms and rights . ”", "Article CARDINAL protects the right of property in the following terms :", "“ 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 .", "The right of ownership may be limited only by means of a statute and only to the extent that this does not impair the substance of such right . ”", "Article CARDINAL refers to the protection of tenants . It reads as follows :", "“ CARDINAL . NORP The public authorities shall pursue policies conducive to satisfying the housing needs of citizens , in particular combating homelessness , promoting the development of low - income housing and supporting activities aimed at acquisition of a home by each citizen .", "Protection of the rights of tenants shall be established by statute . ”", "Article CARDINAL provides :", "“ The public authorities shall protect consumers , customers , hirers or lessees against activities threatening their health , privacy and safety , as well as against dishonest market practices . The scope of such protection shall be specified by statute . ”", "After DATE , as a result of ORG judgment , it became possible for landlords to increase rent to PERCENT of the reconstruction value of the dwelling . At DATE levels of rent generally increased . According to the Government , in GPE , where the previous rate was PLN MONEY per square metre , the rent quadrupled , reaching around PLN CARDINAL.CARDINAL per QUANTITY in DATE . According to reports published in the NORP press , in most other towns PERCENT of the reconstruction value of the dwelling corresponded to ORG DATE for QUANTITY . Levels of freely determined contractual rent are still higher ; sometimes and , especially , in large towns , the difference may reach even PERCENT .", "At DATE the Government started to prepare a bill amending the CARDINAL Act . The Government PERSON was submitted to ORG on DATE .", "The explanatory memorandum on the bill stated that the aims of the proposed amendments were , among other things , “ to specify rights and obligations of a landlord and tenant in order to strengthen the protection of the weaker party ” ; “ to introduce new rules for the protection of tenants against the excessive increase in rent and other charges for the use of dwellings ” ; and “ to reduce the disproportion between the constitutionally guaranteed protection of tenants and the constitutional rights of landlords ” .", "The Government proposed a number of changes to the existing provisions . The most important and controversial provision was the proposed LAW , pursuant to which ( subsection CARDINAL ) the scheme of rent control , despite the fact that the deadline for its operation had been set by the legislature for DATE , was to be maintained until DATE in respect of all lease agreements in force before DATE under which the tenants paid controlled rent . That in practice meant all leases originating in administrative decisions regarding privately owned buildings .", "The provision was to be applied mostly to all individual landlords , its operation in relation to public housing entities and housing cooperatives being of a minimal effect . The explanatory memorandum stated that the repeal of the rent - control scheme in its entirety “ could cause a dramatic increase in rent ” after DATE and that the limitation “ would allow a smooth transition from the levels of rent at DATE to levels fixed in accordance with general principles ” .", "The Government therefore proposed that controlled rent be frozen at the maximum level of PERCENT of the reconstruction value of the dwelling DATE ; PERCENT up to DATE ; PERCENT up to DATE ; PERCENT up to DATE and PERCENT up to DATE .", "The effects of the proposed rent freeze on the property rights of individual landlords have received considerable media attention and have given rise to heated public debate . The proposal was severely criticised by all organisations of landlords .", "Eventually , on DATE , the ORG submitted to ORG an amendment to their bill . They withdrew their original proposal to freeze levels of rent after DATE . They still maintained the proposal to limit the increase in rent for leases originating in previous administrative decisions .", "On DATE a group of deputies from the “ PERSON and ORG ( “ Prawo i PERSON ” ) party submitted a bill proposing amendments to LAW .", "The general thrust of the proposed changes , as set out in the relevant explanatory memorandum , was :", "“ to secure the effective protection of the rights of tenants , as guaranteed by ORG CARDINAL § CARDINAL and CARDINAL of the LAW , by :", "( a ) preventing the overuse by landlords of the right to terminate a lease agreement under section CARDINAL(CARDINAL ) of the DATE Act ;", "b ) preventing the dysfunction resulting from non - fulfilment by landlords of the duties incumbent on them in leasing dwellings ( even in cases where the landlords are unknown and the municipality does not manage the property ) . ”", "Parliament decided to work on both bills simultaneously . The first reading took place on DATE . The second reading , following the report of ORG , ORG and Regional Policy and the adoption of amendments , was on DATE . After the third reading , which took place on DATE , the bills were adopted by the PERSON and transmitted to the ORG and the President of GPE on DATE .", "On DATE the ORG proposed several amendments , the most significant being the amendment to section DATE CARDINAL Act , restricting the maximum increase in rent to a level of PERCENT per year in situations where the rent paid exceeded PERCENT of the reconstruction value of the dwelling .", "On DATE the PERSON accepted some of the ORG ’s amendments , most notably the amendment to section CARDINAL . On DATE the Act of ORG was transmitted for signature by the President of GPE . The President signed it on DATE .", "On DATE , following , among other things , press reports stating that the new provision of section CARDINAL of the CARDINAL Act did not exclude the possibility of a CARDINAL - off increase in rent even where the rent was equal to , or PERCENT of the reconstruction value of the dwelling , ORG passed , in an accelerated procedure , another bill amending the CARDINAL LAW . The bill was tabled by a group of deputies and contained only one proposal , namely to add another subsection to section CARDINAL of the CARDINAL LAW ( see paragraph CARDINAL below ) . On DATE the bill was transmitted to , and accepted by , the ORG . The President of GPE signed the Act of ORG on DATE .", "The DATE entered into force on DATE .", "New section CARDINAL was drafted with a view to implementing both ORG ruling of DATE and the constitutional principle of the protection of tenants’ rights . It subjects the increase in rent to various restrictions . It reads , in so far as relevant :", "“ CARDINAL . NORP The landlord may increase rent or other charges for the use of the dwelling , giving [ the tenant ] notice of the rent increase , not later than by the end of a calendar DATE [ and ] in compliance with the terms for giving notice .", "NORP The term for giving notice of an increase in rent or in other charges for the use of the dwelling shall be DATE , unless the parties have stipulated a longer term in their contract ;", "...", "An increase in rent exceeding PERCENT of the reconstruction value of the dwelling within DATE , may take place only in justified cases . At the tenant ’s written request , the landlord shall , within DATE , give reasons for the increase and its calculation in writing .", "NORP The tenant may , within DATE following the notice of the increase , challenge the increase referred to in subsection CARDINAL by bringing a court action to have the increase declared unjustified or justified but in a different amount [ ; he or she may also ] refuse to accept the increase , with the effect of the contract being terminated by the end of the term of notice . The burden of proof in respect of the justification of the increase shall rest with the landlord .", "...", "Provisions of subsections CARDINAL shall not apply to increases :", "( CARDINAL ) not exceeding PERCENT of the current rent or current charges for the use of the dwelling within DATE ;", "...", "( CARDINAL ) concerning charges that do not depend on the landlord . ”", "In DATE CARDINAL LAW were reworded as follows :", "“ CARDINAL . Increases in rent or other charges for the use of the dwelling , apart from charges that do not depend on the landlord [ e.g. those for electricity , water , central heating , etc . ] may not be made more often than DATE but , if the level of the annual rent or other charges for the use of the dwelling , apart from charges that do not depend on the landlord , exceeds PERCENT of the reconstruction value of the dwelling , a yearly increase can not be PERCENT of the current rent or current charges for the use of the dwelling [ ; such an increase ] shall be calculated without charges that do not depend on the landlord .", "NORP If charges that do not depend on the landlord have been increased , he or she shall give a tenant a written statement listing charges and reasons for their increase . The tenant shall be obliged to pay the increased charges only up to such a level that is necessary for the landlord to cover costs of supply of utilities referred to in section CARDINAL(CARDINAL ) [ e.g. electricity , water , heating ] . ”", "As regards the termination of leases by individual landlords , the new LAW differs only slightly from the previous provision on termination of leases ( see paragraph CARDINAL above ) .", "Section CARDINAL(CARDINAL ) now reads , in so far as relevant , as follows :", "“ If a tenant is entitled to use a dwelling for rent , the landlord may give notice only for reasons listed in subsections CARDINAL - CARDINAL .... Notice should , on pain of being null and void , be given in writing .", "Subsections ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW remain unchanged . Subsection ( CARDINAL ) now reads :", "“ NORP The landlord of a dwelling for the lease of which the rent is PERCENT of the reconstruction value of the dwelling in DATE may terminate the lease :", "( CARDINAL ) with CARDINAL months’ notice if the tenant has not lived in the flat for DATE ;", "CARDINAL ) with DATE notice , expiring at the end of a calendar DATE , in respect of a person who has been entitled to another dwelling in the same or nearby locality and provided that dwelling meets the requirements for substitute accommodation . ”", "As regards cases where the landlord , his adult descendants or a person in respect of whom he is obliged to pay maintenance intend to dwell in the landlord ’s flat ( see also paragraph CARDINAL above ) , the provision of the present section CARDINAL(CARDINAL ) is that the notice to quit given to the tenant should , on pain of being invalid , indicate the person who is to dwell in the flat . The terms for giving notice ( DATE and DATE respectively ) remain unchanged ) .", "NORP Under section CARDINAL(CARDINAL ) the termination of a lease in respect of a tenant who on the date of giving notice is more than DATE and who , after the expiry of the applicable CARDINAL years’ notice will have no title to another dwelling and will have no persons obliged to maintain him or her will take effect upon his or her death .", "Section CARDINAL sets out a list of the landlord ’s duties under the tenancy . In essence , it repeats the provision of section CARDINAL of the CARDINAL Act ( see paragraph CARDINAL above ) .", "Section CARDINALb lays down the tenant ’s duties . It reads , in so far as relevant :", "“ CARDINAL . NORP The tenant shall be obliged to keep the dwelling in a proper technical , sanitary and hygienic state as prescribed by other separate provisions and to comply with the rules of good conduct in the building . He or she shall also be obliged to take care , and ensure protection against damage or devastation , of parts of the building designed for common use , such as lifts , staircases , corridors , chutes , other [ similar ] premises and the surroundings of the building .", "Subsection ( CARDINAL ) sets out a detailed list of repairs and works involved in upkeep of a flat .", "The DATE entered into force on DATE . It reads , in so far as relevant :", "“ In section CARDINAL(CARDINAL ) [ of LAW ] the following subsection CARDINAL(a ) shall be included :", "‘ The provisions of subsection CARDINAL shall also apply in the event of an increase in rent or other charges for the use of a dwelling , except for charges that do not depend on the landlord if , after the increase , the level of the DATE rent or other charges for the use of the dwelling , except for the charges that do not depend on the landlord , is to exceed PERCENT of the reconstruction value of the dwelling.’ ”", "On DATE ORG made an application to ORG , challenging the constitutionality of the DATE and DATE Amendments ( “ DATE Amendments ” ) . The ORG alleged , in particular , that the provisions extending ORG control over increases in rent for dwellings owned by private individuals were incompatible with the constitutional principles of protection of lawfully acquired rights and ORG confidence in the ORG and the law made by it .", "In that context , they stressed that the NORP authorities , in breach of their obligation to terminate the operation of the rent - control scheme by DATE that they had taken upon themselves by virtue of CARDINAL successive laws , namely LAW and LAW , had failed to abolish the impugned scheme and had simply replaced it by further restrictions on increases in rent .", "On DATE ORG informed the ORG that the Prime Minister of GPE intended to make an application to ORG in order to contest the constitutionality of certain provisions of DATE .", "On DATE the Prosecutor General made an application to ORG , challenging the constitutionality of DATE . In particular , he contested the provisions restricting increases in rent to PERCENT and submitted , inter alia , that those restrictions constituted an unjustified interference with landlords’ property rights . He further alleged that ORG was in breach of its duty to “ legislate decently ” ( zasada “ przyzwoitej legislacji ” ) , especially the duty to formulate legal provisions in a correct and coherent manner ." ]

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[ "The applicant , Mr ORG , is fiscal consultant . He is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Professor M.W.C. PERSON of ORG of ORG , who also works as a fiscal advisor in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE , the applicant ’s employers provided him with a company car . The car ’s catalogue price was ORG . CARDINAL . The applicant used this car DATE a week for transport from his home to his office . The distance between both places was QUANTITY . The applicant further used this car for private purposes . The distances travelled for private purposes in DATE exceeded QUANTITY .", "On DATE , ORG issued the income tax assessment ( aanslag inkomstenbelasting ) for DATE in respect of the applicant . In the determination of the applicant ’s taxable income for DATE , ORG had added – pursuant to the DATE LAW ( Wet op de Inkomstenbelasting ; “ FAC ” ) as amended in DATE an amount of ORG . CARDINAL ( i.e. PERCENT of the catalogue price of the applicant ’s company car ) to the applicant ’s taxable income .", "On DATE , the applicant filed an objection ( bezwaar ) with ORG against the DATE assessment . He complained that the PERCENT increase of his taxable income instead of PERCENT was contrary to the principle of equality ( gelijkheidsbeginsel ) as guaranteed by , inter alia , LAW . He submitted that , under LAW , there is a difference in treatment between CARDINAL categories of persons who are in a same situation , namely – on the one hand – persons who , because of LAW ITA , have to add to their taxable income PERCENT of the catalogue price of the car placed at their disposal ; these persons are taxed for their private use of this car ( PERCENT ) and for their “ excess ” commuter travel ( where a CARDINAL - way journey from their home to their place of work exceeds a distance of CARDINAL kms ) ( PERCENT ) ; and – on the other hand – persons in identical circumstances apart from the fact that they use their company car for QUANTITY a year for private purposes , and are fully exempted from adding a percentage of the car ’s catalogue price to their taxable income .", "Thereby , according to the applicant , the taxation of the “ excess ” commuter travel is made dependent on the number of QUANTITY travelled for private purposes with a company car . He argued that this difference in treatment lacked any objective and reasonable justification and that , therefore , LAW ORG should not be applied . He requested that his taxable income be reduced by ORG . CARDINAL ( i.e. the difference PERCENT of his company car ’s catalogue value ) , which would result in a reduction of ORG . CARDINAL for the income tax due for DATE .", "ORG rejected the applicant ’s objection on DATE . On DATE , the applicant appealed to the ‘ sHertogenbosch ORG ( Gerechtshof ) .", "In its judgment of DATE , ORG found in favour of the applicant . It held that the reasons stated by the legislator for creating the difference in treatment at issue could not be regarded as constituting an objective and reasonable justification . Consequently , it quashed ORG decision of CARDINAL DATE and reduced the determination of the applicant ’s taxable income accordingly . ORG further ordered ORG to reimburse the applicant ’s legal costs , including the court fees paid by him .", "On DATE , the ORG Secretary of ORG ( Staatssecretaris PERSON ) filed an appeal in cassation with ORG ( PERSON ) against the judgment of DATE . In the ORG Secretary ’s first complaint in cassation , it was argued , inter alia , that ORG judgment of DATE created in effect a new and significantly more serious inequality of treatment between , on the one hand , persons living QUANTITY from their place of work and who commute to work either with their own car or with public transport , and , on the other , persons living QUANTITY from their place of work and who commute to work with a company car . In the ORG Secretary ’s third cassation complaint , it was stated that the problems concerning LAW as identified in ORG judgment of CARDINAL DATE , reported in “ Beslissingen in FAC ” ( GPE Fiscal Law Reports – “ LOC ” ) no . CARDINAL , were under discussion in ORG on fiscal - technical reform regarding income tax / wage tax and that , in the light of the signal given by ORG , it was to be expected that the legislative measures resulting from ORG study would also include a termination of the possible inequality of treatment identified by ORG . According to the ORG Secretary , it followed from a ORG judgment of DATE ( ORG , no . CARDINAL * ) that the judicial authorities in cases like the present refrain from interfering where a removal of an inequality in law is to be expected . On this basis , the ORG Secretary argued that there was no need for the judicial authorities to interfere , as there were indications that an amendment , in which the difference in treatment complained of would be removed , was being prepared .", "In its judgment of DATE , ORG ruled that the applicant was treated unequally without justification . However , it upheld ORG decision of DATE . Consequently , ORG quashed the judgment of DATE with the exception of the costs order against ORG , and further ordered the ORG Secretary to reimburse the applicant ’s legal costs in the cassation proceedings . This judgment , insofar as relevant , reads as follows :", "“ CARDINAL . In objecting to the application of this so - called increased fixed amount for car costs ( verhoogde autokostenforfait ) , the < applicant > has argued before ORG that the legislator unjustly subjects him to different treatment from those taxpayers to whom LAW , fourth paragraph , is not applied , as those taxpayers , unlike the < applicant > , use their company car for private purposes for a distance of QUANTITY per year > but , like the < applicant > , live CARDINAL kms from their place of work and drive with their ORG car to and from work . ...", "In answering the question whether it concerns an inequality in treatment prohibited by these Treaties [ including LAW in conjunction with LAW No . CARDINAL ] , it must be stated at the outset that they do not prohibit every inequality in treatment of equivalent cases . The legislator has a certain margin of appreciation in answering the question whether cases , for the purposes of the application of these Treaties , are to considered as equivalent and , if so , whether there is an objective and reasonable justification for nevertheless regulating those cases in a different manner .", "The difference in treatment challenged by the < applicant > has been created by LAW DATE ... The aim of this LAW was to make a contribution to both reducing commuter traffic as such ( limitation of mobility ) and reducing the use of cars for commuting purposes ( limitation of car mobility ) . ...", "It thus follows from the < legislative > history of the creation of the < PERCENT > addition ... that the legislator , as a basic premise , no longer wished to make a link between the strictly private use of the car and its use for commuting purposes . The legislator did not therefore intend to tax – through the introduction of an increased percentage of the fixed amount for car costs ( autokostenforfait ) – the higher sum of income considered as being derived from employment as an extra advantage , made dependent on the travel distance , on account of private use .", "This entails that the addition of PERCENT of the catalogue price of the < company > car , though in form an increase of the fixed amount for car costs , in nature has the character of an independent addition for the cases where tax payers habitually travel DATE a week over a CARDINAL - way distance of QUANTITY between their home and their work place using for this a car placed at their disposal for work purposes . ORG fails to see that , for the application of that independent addition , it is of any relevance whether or not the car , apart from commuter travel , has not or only to a limited extent been used for private purposes .", "The considerations set out in CARDINAL . to CARDINAL . lead to the conclusion that the legislator , by not prescribing the addition of PERCENT of the catalogue price in cases where there is no or only a limited private use of the < company > car , has given preferential treatment to a limited group within a category of equivalent cases - in short : commuter travel CARDINAL kms - , and has thus treated equivalent cases unequally .", "Members of ORG ( PERSON ) have shown doubts as to the legitimacy of that unequal treatment . It has been stated in justification on the ORG side that , from the point of view of transport arranged by the employer , the employees privileged by the proposed regulation are on a par with employees who , either collectively or not , are transported by their employer in minibuses and the like . That contention is , however , in all reasonability untenable . Within the group of employees whose transport is arranged by the employer , those disposing of a < company > car are in a completely different situation from those who are , either collectively or not , transported by the employer in minibuses and the like . As of old , the legislator itself has not viewed these cases as equivalents . It has long since made a difference within the relevant group of employees by including employees disposing of a < company > car as being liable to income tax for the private use of such a car . The form chosen for this , the fixed amount for car costs , prompted an addition of a fixed amount for private use < of a company car > to the taxable income in all cases where an employer has made a car available , unless the tax payer can convincingly prove that , on an DATE basis , the car has been used for private purposes for less than ( at present ) QUANTITY . In addition , the “ employer ’s car ” in the latter situation is further treated differently from other transport arranged by the employer , as in that situation the value of the real private use is taxed . Also , given this long standing difference , the argument made in an earlier phase of the examination of the draft Act , that the distinction of the employees with a < company > car runs up against practical difficulties , is defective .", "Moreover , ORG has not found outside this legislative history any grounds of a fiscal or non - fiscal nature that can justify the unequal treatment at issue .", "Further , it can not be said that the unequal treatment results in a quantitatively unimportant advantage as , with the addition of PERCENT of the catalogue price of a < company > car , quickly one finds that an increase in income of ORG . CARDINAL to ORG . CARDINAL is involved .", "Even taking into consideration the margin of appreciation of the legislator , the above also leads to the conclusion that the legislator can not in all reasonability have held that it concerns here unequal cases , or that there is a reasonable and objective justification for the unequal treatment of those cases . The < cassation > complaints I and II , insofar as they are based on a different opinion , fail .", "The < cassation > complaint I ... is however successful insofar it points out that not to apply the rule contained in LAW CARDINAL of the ORG would result in an equally unjustifiable inequality in treatment , namely in respect of employees who habitually commute , involving a CARDINAL - way travel distance of QUANTITY , with their own car or with public transportation without having a public - transport - declaration [ for fiscal deduction purposes ] ( openbaar vervoerverklaring ) . This could only be remedied by the non - application of the entire < regulation on the > “ capping < of the tax allowance for commuters > ” ( “ aftopping ” ) . ORG considers for the time being that such a consequence of the inequality found is disproportionate . It is for legislator to remove the inequality found . ORG assumes that the PERSON announced in the < cassation > complaint III will be presented < to Parliament>. ”", "Pursuant to LAW ( Wet op de Inkomstenbelasting ) , employees disposing of a company car provided by their employer must add a fixed amount to their taxable income because of the use of such a car for private purposes . The wording of this provision fixes this amount , the so - called fixed amount for car costs ( autokostenforfait ) , at PERCENT of the catalogue price of the car concerned .", "Following the adoption of LAW of DATE amending income tax and salaries tax [ capping of the tax allowance for commuters ] ( PERSON wijziging van de inkomstenbelasting en de loonbelasting [ aftopping reiskostenforfait ] ) , this fixed amount was increased by PERCENT ( i.e. to PERCENT ) in those cases where an employee habitually travels DATE a week between his or her home and work place when the distance of a oneway journey between these CARDINAL places exceeds QUANTITY ( Article CARDINAL § CARDINAL ) .", "LAW provides that the rules contained in LAW are not applied where it appears that , on an annual basis , the company car has been used for private purposes for a total distance not exceeding QUANTITY . In that situation no fixed amount for car costs has to be added to the taxable income , but the actual benefit must be added on the basis of a fixed amount per CARDINAL , e.g. QUANTITY at MONEY per kilometre .", "The underlying rationale of the LAW of DATE was of an environmental nature , i.e. to reduce commuter traffic by encouraging employees to live closer to their place of work , as well as to reduce the use of cars for commuter travel by encouraging employees to opt either for public transport or other forms of collective transport arranged by the employer .", "In the original proposal contained in the PERSON , which resulted in LAW of DATE , the existing possibilities for tax deduction of costs for commuting to work and the exemption from taxes of compensation paid by employers in respect of commuting costs were limited to a maximum ( aftopping ) . Costs for commuting to work for distances in excess of QUANTITY were to be considered as “ private ” and no longer eligible for tax allowances .", "As to the application of the fixed amount for car costs in cases concerning a company car , the commuter traffic in excess of QUANTITY was to be considered as “ private “ and lead to the application of a higher percentage . This would only apply , however , where a car was also being used for private purposes . If the car would only be strictly used for work purposes , including commuting , the fixed amount for car costs would not come into play .", "As this approach met with the objection that QUANTITY driven by a company car for private purposes could result in the addition to the taxable income of the fixed amount for car costs , the PERSON was amended . The fixed amount for car costs would be applied when a company car was to be used for private purposes involving a distance of QUANTITY or DATE . In the determination of this question , the distance between the home and place of work DATE whether or not it was QUANTITY – would be irrelevant . If the limit of QUANTITY for private use were exceeded , an addition of PERCENT of the car ’s catalogue price would be applied where the commuting to work remained limited to a distance of QUANTITY from the home . For commuting involving a distance between the home and place of work of QUANTITY , a percentage of PERCENT would be applied .", "Although some critical questions were put during the parliamentary debate the system as amended was adopted by LAW DATE .", "In a judgment of CARDINAL DATE ( BNB no . CARDINAL ) , ORG held that :", "“ In the present proceedings , the question has not been raised whether the rules contained in LAW and QUANTITY [ ITA ] entail a prohibited unequal treatment in respect of those case in which a car made available by an employer is used for private purposes for QUANTITY per year . That question must at present , however , remain unresolved , since its answer also requires an investigation of the facts for which there is no scope in cassation proceedings . ”", "The rules contained in LAW remained in force until DATE when fiscal reform legislation came into force - LAW DATE . This Act provided that the distance between the home and place of work is no longer relevant in the determination of the addition of the fixed amount for car costs in respect of company cars . Only the distance for private purposes for which the company car is used is relevant . In case this use is less than CARDINAL kms per year , no fixed amount has to be added to the taxable income . For a distance QUANTITY , PERCENT of the car ’s catalogue value must be added to the taxable income , for distances QUANTITY , PERCENT , and for distances exceeding QUANTITY , PERCENT . Commuter travel is considered to be work - related .", "LAW ( PERSON ) , provides :", "\" All persons present in the GPE shall be treated in the same way in similar situations . Discrimination on the ground of religion , philosophical convictions , political leanings , race , sex , or any other ground whatsoever shall not be allowed . \"", "LAW reads :", "\" The courts shall not rule on the constitutionality ( grondwettigheid ) of statutes and treaties . \"", "Under LAW , as interpreted in the constant caselaw of ORG , the judiciary is not permitted to examine the lawfulness of Acts of ORG . The courts can , however , review the lawfulness of subordinate legislation and of all other acts of the administration including the lawfulness of decisions which have a general character such as regulations , plans or directives ( cf . PERSON , DATE , Beslissingen in DATE , no . CARDINAL ) .", "LAW provides that provisions of international treaties and decisions of international ( intergovernmental ) organisations which , according to their content , may be binding on anyone shall have binding force after they have been published . Pursuant to LAW , such provisions of international treaties and decisions of international organisations take precedence over domestic statutory rules in case of conflict .", "As regards the prohibition on discrimination , ORG recognised in a judgment of CARDINAL DATE ( PERSON “ GPE ” , DATE , no . CARDINAL [ corrected in GPE DATE , no . CARDINAL ] ) , that LAW is a provision of an international treaty which , according to its content , may be binding on anyone , and must therefore in principle be applied directly by the GPE courts .", "However , in a number of judgments ORG has declined to construe DATE the LAW in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted unlawful discrimination , holding that – where various options were open to the national authorities to remove such discrimination – the choice should be left to the legislator in view of the social and legal implications attending each possible course of action ( PERSON , DATE , GPE DATE , no . CARDINAL ; and PERSON , DATE , GPE DATE , no . CARDINAL ) .", "In its judgment of DATE ( GPE DATE , no . CARDINAL ) , cited in the ORG ’s Kroon and Others v. the GPE judgment of DATE , ORG came to a similar finding with regard to LAW taken together with LAW no CARDINAL-C , p. CARDINAL , § CARDINAL ) ." ]

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[ "The applicant , Mr Ramazan Akbulut , 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 started his military career in DATE . On DATE ORG ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of insubordination and immoral conduct pursuant to LAW .", "The Government submit the following in the light of the intelligence reports concerning the applicant :", "Sergeant Ramazan Akbulut was a member of ORG ( Devrim Yanlısı İslami Görüş ) movement . He was involved in disseminating the ideology of this movement and established contacts with persons who adopted the same ideology . He had an antisocial character and his wife carried NORP scarf . He refused to host women and men in the same room in his house because he believed that men and women should gather in separate rooms .", "The relevant provisions of the LAW are as follows :", "“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”", "“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions . ...", "No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”", "“ All acts or decisions of the administration are subject to judicial review ...", "Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .", "... ”", "Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .", "Section CARDINAL ( c ) of ORG provides :", "“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .", "...", "Where their conduct and attitude reveal that they have adopted unlawful opinions . ”", "Section CARDINAL ( c ) of LAW provides :", "“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”", "Section CARDINAL ( b ) of LAW provides :", "“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :", "Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”", "LAW on assessment of officers and non - commissioned officers provides :", "“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :", "...", "( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”" ]

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[ "The applicants are :", "PERSON , born in DATE ;", "PERSON Issayevna Dzhamayeva , born in DATE ;", "Ms Kheda Issayevna Dzhamayeva , born in DATE ;", "Mr Magomed Ismailovich Dzhamayev , born in DATE .", "They live in ORG , GPE .", "The first applicant is the mother , the second and third applicants are the sisters and the fourth applicant is the son of Mr PERSON , born in DATE . They lived together in the village of PERSON , LOC . Mr PERSON was a student of mathematics .", "According to the applicants , from DATE federal military officers , under the command of ORG , conducted a sweeping operation ( зачистка ) in the village of PERSON involving CARDINAL servicemen , CARDINAL armoured personnel carriers ( “ APCs ” ) and several military helicopters .", "NORP Throughout the said period the military besieged PERSON and restricted freedom of movement in the village . They organised a filtering point at the poultry - yard and the mill on the outskirts of PERSON where they kept the residents detained during the operation .", "NORP In total CARDINAL men residing in PERSON were apprehended DATE . Whilst some of them were subsequently released , CARDINAL residents disappeared . Relatives of CARDINAL of those who disappeared applied to ORG ( see PERSON and Others v. GPE , no . PERSON ) .", "According to the applicants , Mr PERSON was apprehended in the following circumstances . In the morning of DATE the first applicant asked him to go and see his uncle who lived in the same village and buy something for him in the village shop . When Mr PERSON was in the street apparently on the way from the shop to his uncle ’s house , he saw CARDINAL APCs approaching . He got frightened , turned around the corner to FAC and dropped in at Mr B. ’s , his acquaintance . Mr B. ’s mother let him in . As soon as he entered , servicemen ran into the yard after him . They said that there was a sweeping operation in the village and that they would check the house . They searched the house . After the search they took Mr B. and Mr PERSON with them . Mr B. ’s mother asked them not to take the children away since they had all their documents with them . The servicemen checked the documents and then put PERSON and Mr PERSON in an ORG . When PERSON mother tried to intervene , however , the servicemen pushed her aside , hit her against the wall and left her lying on the ground .", "DATE Mr B. was released . He said that after they had been apprehended , the servicemen took them around the village in the ORG for CARDINAL while they checked other houses . They were thrown on the floor of the ORG and the servicemen put their feet on them . Then they were taken to the filtration point . PERSON said that he had heard Mr PERSON ’s voice when the latter had been questioned . They had asked him what he had been doing at B. ’s house , and Mr PERSON had explained that he had gone to the shop and had just dropped by . When PERSON heard that Mr PERSON had not returned home he was surprised because he had heard nothing during the night and thought that Mr Dzhamayev had been released .", "Upon his release PERSON was barely alive because of the beating he had received from the servicemen . He died DATE .", "On DATE the residents of PERSON found several bodies in an abandoned house in the village . The applicants heard others saying that the people had first been blown up and then burned . It was impossible to identify them . However , somebody said that the bodies of some of the persons apprehended on DATE had been seen .", "The applicants also heard that a car had been burned on DATE .", "On DATE Mr T. Kh . , Mr PERSON and PERSON were apprehended and then held at a mill . They were put in a pit where they saw an inscription on the wall “ PERSON and PERSON were here ” . Although Mr PERSON ’s name was PERSON , everybody had called him PERSON since his childhood . CARDINAL of the servicemen confirmed that PERSON and PERSON PERSON had been held there and said that they had been released in the TIME DATE , DATE .", "The applicants concluded that Mr PERSON could not have been one of the persons whose burnt bodies had been found in the burnt house on DATE or in the car burnt on DATE . They alleged that on DATE , instead of being released , he had been transferred elsewhere .", "The Government confirmed that a sweeping operation had been conducted in the village of PERSON from DATE . The aim of the operation had been to find and arrest members of illegal armed groups who had abducted and killed CARDINAL servicemen of the ORG on DATE .", "On DATE , at TIME , a fight broke out between members of the illegal armed groups and federal servicemen in a house at FAC . As a result of the use of small arms and grenade dispensers , CARDINAL members of the illegal armed group were killed . Since the house was set on fire , bodies were severely burnt ; after an inspection by law - enforcement officers they were handed over to the local administration for burial .", "On DATE a group of servicemen of military unit no . CARDINAL at a checkpoint situated within QUANTITY from PERSON was fired at from a car that approached the checkpoint . The servicemen fired back . The explosives contained in the car were blown up , the car was set on fire and the CARDINAL members of an illegal armed group in it were killed . Their bodies were also severely burnt and handed over to the local administration for burial . An ORG machine gun without its wooden parts , PERSON grenades without fuses , a makeshift hand grenade launcher , and other components of ORG machine guns and cartridge cases were found in the car and seized .", "After the operation had been completed , village residents lodged applications concerning the apprehension and subsequent disappearance of CARDINAL residents of PERSON , including Mr PERSON .", "On DATE , after the special operation was over and the restrictions were lifted , the villagers brought all the unidentified corpses to ORG . It appears that they did not manage to contact the authorities , and later that day they returned the bodies to PERSON .", "On DATE officers of the LOC office of ORG ( ORG района ) took the corpses to the village of ORG intending to send them on to PERSON for a forensic examination .", "On DATE NORP , an investigator from ORG of GPE , delivered the bodies back to PERSON . The corpses were wrapped in bags and were decomposed . They remained unidentified . PERSON explained to the villagers that the prosecutor ’s office had insufficient funds to conduct the forensic examination of the corpses and that the refrigerators in the forensic examination department in which they had been kept had been out of order .", "On DATE the residents of PERSON buried the unidentified bodies .", "NORP Immediately after Mr PERSON had been apprehended , the applicants started searching for him . They lodged numerous applications with prosecutors of various levels , public bodies and regional administrative authorities . They also visited a number of ORG bodies . The applicants mainly received formal responses informing them that their requests had been forwarded to various prosecutor ’s offices for examination .", "On DATE the Prosecutor ’s Office of the Grozny District ( прокуратура Грозненского района ) instituted a criminal investigation under LAW CARDINAL ( a ) of LAW of GPE ( murder of CARDINAL or more persons ) in respect of the disappearance of CARDINAL residents of PERSON , including Mr PERSON , DATE . The file was assigned no . DATE .", "According to the applicants , on an unspecified date PERSON and his mother were questioned . The second applicant went for questioning together with them and the relevant records should be in the criminal file .", "According to the Government , on unspecified dates CARDINAL of the applicants were granted victim status in the proceedings .", "On DATE the local administration of PERSON ( местная администрация села PERSON ) issued the applicants with a certificate confirming that Mr PERSON and CARDINAL other residents of PERSON had been apprehended and taken away by federal military officers DATE and had then disappeared . The certificate was signed by the acting head of administration of PERSON and bore an official stamp of the administration . It read , in so far as relevant , as follows :", "“ [ The present ] certificate is issued by the local administration of the village PERSON in respect of written applications by the village ’s residents , whose children were apprehended and taken for passport check in the period DATE during the special operation conducted by the federal troops .", "The local administration thereby confirms that :", "The following residents of PERSON were apprehended by the federal troops and taken to an unknown destination : on DATE ... PERSON , born in DATE ...", "NORP On DATE the ORG Office instituted criminal proceedings no . CARDINAL in respect of the disappearance of the above - named persons following their relatives’ applications ; the investigation is under way .", "A governmental commission headed by the deputy chairman of ORG , ORG , was created ( by governmental decree no . DATE ) [ to investigate ] the events . ” .", "On DATE ORG informed the first applicant that , since so far the investigation had failed to establish her son ’s fate , ORG of the ORG was engaged in the search for him .", "On DATE a report of a forensic molecular - genetic expert examination was drawn up according to which Mr PERSON body was among the remains of CARDINAL bodies found at the cemetery .", "On DATE the investigation was discontinued on account of the absence of any indication of a crime allegedly committed by servicemen .", "In their submissions the parties referred to the information provided in relation to the above case . The ORG shall set out below the facts relevant to the present case .", "On DATE ORG of GPE answered a request received from ORG , stating that on DATE a criminal investigation had been instituted under LAW ( a ) of LAW into the disappearance of CARDINAL residents of PERSON , including Mr PERSON , DATE . The letter also stated that :", "“ On DATE , at TIME , a ORG CARDINAL vehicle approached a checkpoint of military unit CARDINAL situated QUANTITY away from the outskirts of PERSON on the road between NORP - Aul and PERSON . In response to [ the servicemen ’s ] order to stop the car and produce identity papers , shots were fired from the car . During the shoot - out CARDINAL passengers were killed and the car was burnt . During the examination of the vehicle the remains of a ORG machine gun , a hand grenade launcher and RGD-CARDINAL grenades without fuses were found and seized . In this connection , on DATE ORG of the LOC initiated criminal proceedings in case no . DATE under LAW . The identities of the persons killed in the car have not yet been established . ”", "On DATE the military prosecutor of military unit no . CARDINAL informed the applicants that their allegations that Mr PERSON and other residents of PERSON had disappeared during the sweeping operation had been investigated and that criminal proceedings in criminal cases nos . CARDINAL/CARDINAL/CARDINAL - CARDINAL and DATE had been instituted in connection with the combats between the servicemen and the members of the illegal armed groups and as regards the discovery of QUANTITY bodies bearing signs of a violent death in a burnt car on the road from NORP - Aul to PERSON . The letter continued as follows :", "“ The preliminary investigation established that on DATE , during the special operation in the village of PERSON , the servicemen of military unit no . CARDINAL under the command of Senior Lieutenant PERSON were checking vehicles going out of the village of PERSON , since , in accordance with intelligence received , members of illegal armed groups stationed in PERSON were planning an attack on this road .", "At TIME a VAZ CARDINAL car approached the servicemen of military unit no . CARDINAL under the command of PERSON In reply to the servicemen ’s order to stop , machine - gun fire was opened from the car . The servicemen opened return fire with the result that the car started burning . Subsequently CARDINAL burnt corpses of unidentified persons were found in it .", "On DATE the criminal proceedings brought in connection with the servicemen ’s use of firearms were discontinued ...", "Accordingly , no involvement on the part of the servicemen in the abduction of [ the applicants’ relatives ] has ever been established ... ”", "On DATE ORG of LOC sent the case file to the military prosecutor of military unit no . DATE for investigation . The case file was given the number CARDINAL/CARDINAL/CARDINAL - CARDINAL .", "On DATE the military prosecutor of military unit no . CARDINAL suspended the investigation on account of the failure to establish the identity of the culprits . The decision read , in particular :", "“ During the period from DATE , in the course of a special operation in the village of PERSON , unidentified servicemen abducted CARDINAL residents of the village : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON . ORG , PERSON , PERSON . ORG , GPE , [ V. NORP ] , [ R. D. ] , PERSON .", "Upon the completion of the operation on DATE [ V. D. ] and [ R. D. ] were released . The whereabouts of the other residents of PERSON who were apprehended has not been established ...", "In the course of the investigative actions ... person(s ) who had committed the offence were not identified ... ”", "The applicants and relatives of other disappeared persons were notified of the decision to suspend the investigation .", "On DATE ORG of ORG ( UGA ) quashed the decision to suspend the investigation for the following reasons :", "“ The decision was unfounded since in the course of the preliminary investigation not all the investigative measures aimed at identifying persons involved in the disappearance of the named residents of PERSON were taken . [ In particular , ] the military units that had conducted the special operation in the village were not identified , the commanders of these units were not questioned , the persons who had conducted a check and apprehended the [ disappeared residents ] were not identified . Therefore , the preliminary investigation should be reopened . ”", "On DATE the case was taken up again by the military prosecutor of military unit no . CARDINAL . Relatives of the disappeared persons were notified of the reopening of the investigation .", "NORP On DATE the military prosecutor of military unit no . CARDINAL suspended the investigation on account of the failure to identify persons to be charged with the offence . Relatives of the disappeared persons were notified of the decision to suspend the investigation .", "By letter of CARDINAL DATE the military prosecutor of military unit no . CARDINAL replied to a query lodged by the PERSON on the ORG behalf and stated that in the file of criminal case no . DATE opened in relation to the abduction of Mr PERSON and other persons there was no indication that the federal servicemen had been involved in the alleged offence .", "On DATE the military prosecutor of military unit no . CARDINAL notified the SRJI that the case file of the investigation instituted in connection with the disappearance of Mr PERSON and other persons had been returned to ORG of GPE , as the military prosecutor had no competence over the case in the absence of evidence of the military personnel ’s involvement in the alleged offence .", "On DATE the military prosecutor of military unit no . CARDINAL quashed the decision of DATE and reopened the investigation . Relatives of the disappeared persons were notified of the reopening .", "On DATE the military prosecutor of military unit no . CARDINAL suspended the investigation on account of the failure to identify persons to be charged with the offence . Relatives of the disappeared persons were notified of the decision .", "On DATE the ORG applied to ORG of the ORG requesting , inter alia , exhumation of the remains of the unidentified bodies buried by the residents of PERSON in a common grave and a forensic examination with a view to their identification .", "On DATE ORG of the ORG quashed the decision of DATE to suspend the investigation on the ground that the whereabouts of unspecified witnesses had been established which required further investigative actions . Relatives of the disappeared persons were notified of the reopening .", "On DATE ORG of the ORG suspended the investigation . The decision read , in particular :", "“ During the period from DATE servicemen from the internal troops of ORG and ORG , officials of ORG and the ORG conducted a special operation in the village of PERSON ... aimed at the identification , arrest and extermination of members of an illegal armed group and the search for CARDINAL servicemen of the ORG who had gone missing .", "...", "During the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted [ the following ] residents of PERSON : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON . ORG , PERSON , PERSON . ORG , GPE , PERSON .", "Taking into account that the term of the preliminary investigation has expired and that the investigative measures that could be taken in the absence of a suspect have been completed , [ the investigation should be suspended ] . ”", "Relatives of the disappeared persons were notified of the decision to suspend the investigation .", "DATE . On DATE ORG of the ORG quashed the decision and reopened the investigation . Relatives of the disappeared persons were informed accordingly .", "On DATE ORG of the ORG again suspended the investigation . The decision read , in so far as relevant :", "“ During the period from DATE servicemen from the internal troops of ORG and ORG , officials of ORG and the ORG conducted a special operation in the village of PERSON ... aimed at the identification , arrest and extermination of members of an illegal armed group and the search for CARDINAL servicemen of the ORG who had gone missing .", "...", "At TIME on DATE in PERSON servicemen of military unit CARDINAL killed CARDINAL members of the illegal armed group who were in a car . [ Their ] bodies were severely damaged and burnt . No measures were taken to identify them .", "At the same time , according to applications and statements by residents of PERSON , during the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted PERSON , PERSON , PERSON , PERSON , PERSON , PERSON . ORG , ORG Magomadov , PERSON . ORG , GPE , A. N. GPE .", "In the course of the investigation the bodies of the members of the illegal armed groups buried in the cemetery of PERSON were exhumed and body tissue taken from them ; blood samples were taken from relatives of the abducted persons . According to the medical opinion no . CARDINAL/CARDINAL , the forensic ( molecular - genetic ) expert examination showed that the remains found at the cemetery were those of I. A. GPE , A. Sh . ORG , LAW , PERSON , PERSON and GPE ...", "Taking into account that the term of the preliminary investigation has expired and that the investigative measures that could be taken in the absence of a suspect have been completed , [ the investigation should be suspended ] . ”", "On DATE ORG of the ORG quashed the decision and reopened the investigation . Relatives of the disappeared persons were informed accordingly .", "On DATE ORG of the ORG suspended the investigation again . Relatives of the disappeared persons were notified of the decision .", "On DATE ORG of the ORG quashed the decision of DATE and reopened the investigation on the following grounds :", "“ In the course of the investigation significant discrepancies between statements by residents of PERSON and servicemen concerning the detention of the [ disappeared ] persons and their possible death as a result of the fighting on DATE ... were not resolved . Witness statements in this regard were not duly verified and recorded .", "The investigating authorities did not take comprehensive measures in order to establish the specific places where the bodies of PERSON , PERSON , PERSON , ORG ORG . ORG , and ORG , who , according to their relatives , had been apprehended together with the other residents of the village , had been found .", "Up until now the whereabouts and the fate of other residents of PERSON who have been missing since the operation was conducted in DATE have not been established .", "In such circumstances the decision to suspend the preliminary investigation should be quashed and the investigation resumed . ”", "On DATE ORG of the ORG ordered another forensic molecular - genetic expert examination aimed at establishing the fate of several other disappeared persons . The order contained the following passage :", "“ ... In the course of the operation a house situated in FAC was shelled and blown up , a red ORG CARDINAL car with members of an illegal armed group in it was burned and crushed by an ORG . ... ”", "Despite specific requests made by the ORG to submit a copy of the file in criminal case no . MONEY ( at present no . CARDINAL/CARDINAL/CARDINAL - CARDINAL ) , the Government did not provide any documents from the case file . They 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 documents of a confidential nature and without the right to make copies .", "Until DATE criminal - law matters were governed by LAW RSFSR ( NORP Federative Socialist Republic ) . On DATE the old Code was replaced by LAW .", "Article CARDINAL of the new ORG lays down a judicial procedure for the consideration of complaints . Orders of an investigator or prosecutor refusing to institute criminal proceedings or to terminate a case , and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen ’s access to justice may be appealed against to a local district court , which is empowered to check the lawfulness and grounds of the impugned decisions .", "Article CARDINAL of the new ORG prohibits the disclosure of information from the preliminary investigation file . Under part CARDINAL of the LAW , information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings or prejudice the investigation . Divulging information about the private lives of parties to criminal proceedings without their permission is prohibited .", "Federal Law no . CARDINAL of DATE on ORG закон от CARDINAL июля DATE г. № CARDINAL « О борьбе с терроризмом DATE ) provides as follows :", "“ For the purposes of the present ORG the following basic concepts shall be applied :", "... ‘ suppression of ORG shall refer to activities aimed at the prevention , detection , suppression and minimisation of the consequences of terrorist activities ;", "‘ counter - terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts , ensuring the security of individuals , neutralising terrorists and minimising the consequences of terrorist acts ;", "‘ zone of a counter - terrorist operation’ shall refer to an individual terrain or water surface , means of transport , building , structure or LOC with adjacent territory where a counter - terrorist operation is conducted ; ... ”", "“ CARDINAL . In the zone of an anti - terrorist operation , the persons conducting the operation shall be entitled :", "... ( CARDINAL ) to check the identity documents of private persons and officials and , where they have no identity documents , to detain them for identification ;", "( CARDINAL ) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti - terrorist operation , including acts of unauthorised entry or attempted entry to the zone of the anti - terrorist operation , and to convey such persons to the local bodies of ORG of GPE ;", "( CARDINAL ) to enter private residential or other LOC ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act , when a delay may jeopardise human life or health ;", "( CARDINAL ) to search persons , their belongings and vehicles entering or exiting the zone of an anti - terrorist operation , including with the use of technical means ; ... ”", "“ ... CARDINAL . Information that can not be released to the public includes :", "( CARDINAL ) information disclosing the special methods , techniques and tactics of an anti - terrorist operation ; ...", "( CARDINAL ) information on members of special units , officers of the operational centre managing an anti - terrorist operation and persons assisting in carrying out such operation .", "In accordance with the legislation and within the limits established by it , damage may be caused to the life , health and property of terrorists , as well as to other legally - protected interests , in the course of conducting an anti - terrorist operation . However , servicemen , experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage , in accordance with the legislation of GPE . ”", "Federal Law no . CARDINAL - CARDINAL of DATE on the Police governs various aspects of the police service .", "Presidential Decree no . CARDINAL of DATE on Measures Enhancing the Efficiency of Counter - Terrorist Operations in the Territory of the GPE provides for the creation of the ORG and contains general provisions concerning its structure and operation . It also provides for additional measures to be taken by local authorities and the ORG to maintain public order and security in the region ." ]

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

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[ "NORP The applicant , Mr PERSON , is a NORP national . He is currently held in immigration detention in GPE . He is represented before the ORG by PERSON of ORG , a firm of lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant was born in GPE in DATE . He arrived in GPE in DATE , at DATE , with his father , step - mother , uncle and siblings , having spent DATE in a refugee camp in GPE immediately prior to his arrival . He was , together with his family , granted refugee status on DATE and indefinite leave to remain on DATE .", "On DATE , the applicant made an allegation of child abuse , claiming that since he was DATE , his father had regularly beaten him and deprived him of food . He was placed with foster carers but , as the local authority ’s investigations into his allegations were inconclusive and the applicant ’s father agreed not to use force against him , he was returned home DATE . However , following further allegations of violence against his father , the applicant was placed with foster carers in DATE . He returned home for DATE but , following further allegations , was placed with foster carers in DATE . He absconded , and in DATE was placed in a residential children ’s home . A medical examination conducted on DATE indicated that the applicant had old injuries consistent with his account of abuse at the hands of his father and was extremely thin . He went to live with his uncle in DATE , until DATE when his uncle stated that he could no longer care for him and the applicant was placed back in a residential children ’s home .", "NORP Throughout the period DATE there were problems with the applicant ’s behaviour . He used drugs , including crack cocaine , and stole to finance his drug use , accumulating CARDINAL criminal convictions as a minor . He frequently absconded from his residential placements and was excluded from school . In DATE the residential children ’s home terminated his placement , on the grounds that his behaviour was beyond their control , and in particular that he was bullying residents and threatening staff . At DATE , he moved into bed and breakfast accommodation . In the Autumn of CARDINAL the applicant persuaded his father to pay for him to travel to GPE to visit his grandmother , where he remained until DATE ( by which time he was aged CARDINAL ) . Thereafter he received support , including with accommodation , from the social services “ leaving care team ” , although from DATE he spent substantial periods in custody .", "DATE and DATE the applicant was convicted of CARDINAL offences , including theft , affray , common assault , possession of Class A and В drugs , burglary , robbery , handling stolen goods and failing to surrender to bail . In DATE he received a DATE custodial sentence for robbery . In DATE , whilst still under supervision by the probation service following his release , he committed further offences and on DATE he was convicted of robbery and offering to supply a Class В drug and sentenced to DATE imprisonment . The applicant had forced the DATE he was supplying with drugs to strip and was verbally and physically aggressive towards him because he was unable to pay . On his release , in DATE , the applicant failed to attend probation appointments and was recalled to prison . He was re - released on DATE . On DATE he committed a further robbery , for which he was convicted on DATE . He was initially sentenced to life imprisonment with a tariff based on a determinate sentence of DATE , but on appeal this was reduced to a sentence of CARDINAL years’ imprisonment . In the course of that period of detention he received CARDINAL in - prison adjudications for misconduct , including fighting and disobeying orders . The applicant was released on DATE , but was recalled to prison on CARDINAL DATE following a fight with another resident of the hostel where he was living .", "On DATE the applicant was informed that the Secretary of ORG had decided to deport him to GPE , as conducive to the public good . However , this decision was subsequently withdrawn as the applicant ’s refugee status had not been considered . On DATE the applicant was informed that the decision had been taken to revoke his refugee status . On DATE , his prison sentence ended , and he was immediately transferred into immigration detention .", "The applicant appealed against both the decision to revoke his refugee status and the decision to deport him , and his appeal was heard by the then ORG on DATE . The ORG took note of the applicant ’s claims to have been drug - free since DATE , and to have been let down by social services in failing to investigate the abuse he had suffered at the hands of his father and in failing subsequently to provide him with adequate support . However , the ORG found that , while the local authority should have investigated the applicant ’s allegations of abuse more rigorously , he had , in fact , received considerable support from social services and had on occasion abused this help by running away from care homes or failing to attend appointments . In his evidence to the ORG , the applicant claimed not to believe in God and not to be a practising NORP but , undermining his credibility , this contrasted with his complaint to the local authority that he was placed in a drug rehabilitation unit which did not meet his cultural needs as a NORP . According to a forensic psychiatric report , the applicant presented a moderate risk of violent recidivism , which would be increased if he returned to substance abuse or was subjected to negative peer influences . It appeared to the ORG that , if released , the applicant was likely to return to the same area where he had previously committed crimes ; that he had no employment prospects ; and that he had previously failed to comply with supervision in the community . Given these facts and the seriousness of his offence , particularly when combined with his “ appalling record ” of previous convictions , the ORG concluded that the applicant was a danger to the community and that deportation was appropriate . The ORG considered a number of recent country guidance cases and the expert reports submitted by the applicant ( see paragraphs CARDINAL below ) and concluded that the revocation of his refugee status was also appropriate . There was evidence that his father had been born in GPE in GPE , which meant that the applicant would be allowed entry by the NORP authorities . He was of the PERSON clan , which was the majority clan in GPE , and would be able to seek clan protection . The objective evidence indicated that the situation in PERSON was reasonably stable . The grant of asylum to the applicant was no longer necessary . The tribunal also rejected the applicant ’s claim to protection under LAW , concluding :", "“ There is no evidence to support the appellant ’s view that he faces a real risk of illtreatment upon return to NORP . The appellant is a young single male with no dependants who would be able to establish himself in northern GPE and obtain protection from his clan . ”", "The applicant sought reconsideration of the ORG ’s decision , which was refused by a Senior Immigration Judge on DATE . Pending his application to ORG he was granted bail by ORG on DATE , on conditions including twice DATE reporting . The applicant failed to comply with the bail conditions and did not report at all during DATE . His application for reconsideration was refused by ORG on DATE . ORG found that the ORG had been entitled to hold that the applicant ’s removal to GPE would not breach LAW and that his deportation would not amount to a disproportionate interference with his LAW . The ORG had plainly had regard to all the applicant ’s arguments and there was no realistic possibility that another ORG would reach a different conclusion .", "Meanwhile , on DATE the applicant was arrested on a charge of theft and remanded to prison . On DATE he was sentenced to CARDINAL days’ imprisonment , and , following completion of his sentence , a decision was made to detain him under immigration powers . On DATE , while in immigration detention , the applicant was involved in a fight with another detained person , and on DATE he was convicted and fined for resisting or obstructing a person assisting a constable , which incident had taken place on DATE . In DATE the applicant was , with others , involved in a serious disturbance whilst in immigration detention , resulting in injury to a number of individuals , including staff . He was placed in a segregation unit , and transferred to prison on DATE .", "A report published by ORG on CARDINAL DATE , “ Eligibility Guidelines for assessing the international protection needs of asylumseekers from GPE ” , stated as follows :", "“ The self - declared Republic of NORP , which has not been recognized by the international community as an independent sovereign state , has been relatively peaceful and secure with the exception of the problematic presidential elections process ...", "ORG considers that a situation of generalized violence or events seriously disturbing public order does not exist to the extent that an individual present in either GPE or PERSON would be at risk of serious harm . ”", "NORP In a report published on DATE , “ Human Rights Challenges : NORP ” , ORG observed :", "“ While overall human rights and humanitarian conditions have continued to worsen in southern and central GPE , as well as in GPE , a stable NORP has devoted attention to democratization , institutional capacity - building , stability and development in its CARDINAL-year pursuit of international recognition of self - declared independence . While ORG takes no position on GPE ’s claim to independence , the international community should provide the de facto authorities of the Government of NORP with necessary support to promote the rights of its people , and to ensure its capacity to firmly establish broad human rights protections . ”", "In their DATE Report on GPE , published on CARDINAL DATE , ORG found in relation to NORP that :", "“ Presidential elections were held on DATE in GPE . PERSON , a former opposition politician , was declared the new President in DATE . According to independent observers , the elections were generally free , fair and peaceful . However , media freedom organizations reported some instances of restrictions on journalists in the lead - up to the elections .", "Tensions flared in the border areas of NORP and PERSON claimed by GPE . A new armed group clashed with NORP security forces from DATE . CARDINAL of people were reportedly displaced by the clashes .", "Displaced people from southern and central GPE continued to live in difficult conditions .", "Minority groups continued to suffer discrimination . ”", "In a report published on DATE , “ Hostages to Peace : Threats to ORG in NORP ” , ORG reported as follows :", "What PERSON has accomplished over DATE is both improbable and deeply impressive . While much of south / central GPE remains mired in chaos and bloodshed , GPE has built a hard - won peace that it has now maintained for DATE . That peace has sheltered PERSON from the horrific abuses that have destroyed so many lives across GPE . At the same time , GPE has done much to build the foundations of democratic governance grounded in respect for fundamental human rights . In DATE and DATE it held competitive and credible national elections , including parliamentary polls that put the territory ’s ORG firmly in the hands of the political opposition . There is a vibrant print media and an active and independent civil society . NORP has accomplished these things primarily on its own , in one of the world ’s most volatile regions . ”", "ORG ’s more recent “ World Report DATE GPE ” , published on DATE , stated :", "“ After DATE of delay , NORP finally held its presidential election on DATE . International observers deemed the polls reasonably free and fair despite an isolated incident in the NORP region , where CARDINAL person was killed . The incumbent President PERSON accepted defeat and peacefully ceded power to an opposition candidate , further advancing hopes for stability in the northern region .", "The situation remains unstable in the contested regions of NORP , Sanag , and PERSON , which lie between GPE , in GPE ’s northwest , and the autonomous state of GPE in the northeast . CARDINAL of civilians were displaced by clan - based clashes and conflicts over resources in the disputed area in DATE . ”", "The most recent Operational Guidance Note on GPE , published on DATE , provided :", "“ NORP and GPE , are in general relatively safe . A long - standing dispute exists over the territories of PERSON , NORP and Sanag , with both PERSON and GPE claiming them and the Sool - Sanag - Cayn alliances fighting to remain part of the original state of GPE . General insecurity resulting from armed violence continues to be the main protection concern in the LOC regions of GPE and there has also been an increase in violence and assassinations in GPE , since DATE , mostly in GPE , PERSON and areas around GPE .", "There are major protection concerns around [ internally displaced person ] settlements both in GPE and GPE , which include overcrowding , severe levels of malnourishment , economic exploitation of children and a lack of physical security , rapes , gang rapes and other instances of sexual and gender - based violence .", "The authorities in GPE will only admit failed asylum seekers returning from NORP countries who originate from their territory or those who have close affiliations to the territory through clan membership . In the case of majority clan affiliates , this means those associated with the GPE in GPE . In NORP taxis and CARDINAL vehicles can easily travel from GPE , ORG and PERSON . The main transportation between GPE and LOC is by lorry . People travel by air between GPE and PERSON . The ORG in ORG and others ... also found that a person from GPE will not , in general , be able without real risk of serious harm to travel overland from FAC to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to NORP , and then by land to GPE . This is particularly the case if the person is female . A proposed return by air to PERSON , GPE ( whether or not via FAC ) will in general involve no such risks . ”", "In NORP ( PERSON ) v. the Secretary of ORG for ORG [ DATE ] EWHC CARDINAL ( Admin ) , heard by ORG on DATE , reference was made to a Memorandum of Understanding between the Government of GPE and the NORP authorities concluded in DATE and renewed in DATE , which dealt with the question of returns . The Memorandum of Understanding provided that the NORP authorities would accept the return of persons who had no right to remain in GPE and had a right of return to NORP . Such return might be voluntary or enforced as regards the individual , but required the prior consent of the authorities . Such consent would be granted only after the provision of bio - data to satisfy the NORP authorities that the individual in question had a sufficient connection to GPE , which would generally entail that the person came from a clan with a sizeable representation in the region , and/or had been born or had parents who had been born in the region , and/or had family currently residing there . If a returnee were to be rejected by the NORP authorities at the point of entry , he or she would be brought back to GPE at the Government ’s expense .", "During the domestic proceedings and in his application to this ORG , the applicant relied on CARDINAL reports , dated DATE and DATE , by PERSON , from ORG . Mr Höhne had learnt the NORP language and had carried out research on NORP history , culture and politics since DATE , including extensive field research throughout DATE in GPE and GPE .", "In his first report , Mr Höhne gave an overview of events in GPE from DATE onwards . He noted that warlord rule prevailed in southern GPE , but that in LOC the situation developed differently , since ORG , a guerrilla organisation predominantly supported by the PERSON clan , seized control early in DATE . The guerrillas entered into peace negotiations with the various other clans in the region and NORP was declared a secessionist republic in DATE . Over DATE PERSON developed as a peaceful de facto State , with a clan - based political system . In DATE , democratic reforms had been introduced and elections were held in DATE and DATE . However , the effectiveness of ORG was limited by lack of resources , non - recognition by the international community and military challenges from other clans , who opposed a separate NORP .", "Mr Höhne referred to the ORG ’s conclusions in PERSON v. the GPE , no . CARDINAL , DATE that individuals without ties to NORP would risk being turned back at the airport or subjected to harassment and abuse by the authorities . Although it appeared that the applicant originated from NORP , it was unclear from which clan he descended , and without any contacts to arrange his reception and arrival at FAC , he might face rejection by the authorities . If he were allowed to enter , he might face severe problems in finding proper accommodation and meeting his other basic needs . Individuals who stood out because they dressed or spoke differently from the general population were subject to verbal harassment on the street , possibly escalating into physical attacks . NORP was strictly NORP and any person who failed to conform to NORP norms would be stigmatised and excluded from access to work , health care and other basic services . There was no welfare state or free access to health care , and people with serious illnesses had to rely on their families for support . Educational facilities were poor and unemployment was high . In most cases , it was necessary to rely on assistance from relatives in order to get a job . The reaction of the local population to the applicant would , therefore , depend on his ability to conform to the local culture . If he did become stigmatised because of his inability to fit in , he would face exclusion from employment and basic social services .", "NORP In his DATE report , Mr Höhne referred to a report by ORG that the ongoing instability and armed conflict in southern and central GPE had had an impact in GPE . There were CARDINAL camps for displaced persons in PERSON , populated by refugees from elsewhere in GPE and GPE , and members of minority groups originating in GPE . Living conditions in the camps were harsh , with no running water or electricity and problems with security . Religious extremism had increased in NORP in DATE , due in part to radical NORP groups such as ORG increasing their following , with the result that much of the population took great pains to follow NORP rules and norms in all areas of DATE life , and practices which had previously been tolerated , particularly in the urban centres of the region , were now completely unacceptable . Such practices included the wearing of light clothes or even trousers by women , and smoking by men . The applicant ’s lack of knowledge of and adherence to the principles of ORG would , in the light of the increasingly strict and intolerant religious context , be an even more worrying issue for him . Furthermore , the fact that it had now emerged that the applicant was from the majority ORG clan did not alter Mr PERSON ’s view that , without contacts or family connections in GPE , the applicant would face severe difficulties in establishing himself . Housing , employment and other services were usually organised within family networks ; unemployment was high and it was extremely hard to find a job without good qualifications and family support . An individual would need detailed knowledge about clan relations and other social structures in order to find his way through daily life ." ]

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[ "The applicants , Mr PERSON , and PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in GPE . The respondent Government are represented by Mr L. GPE , Deputy ORG - Secretary , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicants requested that a payment order be issued against the community of the inhabitants of the building in which they lived . On DATE the respondent objected to the order .", "Consequently , on DATE the applicants filed an action for a settlement of accounts .", "ORG held hearings on DATE , DATE and DATE , CARDINAL May and DATE . After another hearing on DATE , on DATE the applicants requested a DATE interruption of the proceedings . Further hearings took place on DATE and DATE . On DATE , none of the parties appeared so the proceedings were stayed . On DATE the applicants requested that the proceedings be resumed . They made final submissions to the court on DATE .", "On DATE ORG dismissed the applicants’ claims .", "On DATE ORG dismissed their appeal ." ]

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[ "ORG In DATE Mr PERSON and his wife moved into a flat on the second floor of no . CARDINAL , FAC , GPE . He subleased the flat from a property - management company , ORG ( \" ORG \" ) , itself the tenant of a property company , SI Chrysanthemum SA ( \" Chrysanthemum \" ) , the owner of the building .", "ORG In the autumn of DATE Mr PERSON became PERSON ’s main shareholder .", "ORG On DATE the property - management company ORG ( \" Naef \" ) , which managed the building in which the flat in issue was located , informed the applicant that renovation and building work was going to be carried out on the block .", "ORG In a letter of CARDINAL DATE PERSON gave ORG - which was in liquidation - notice to quit the flat with effect from DATE , the date of expiry of the lease , and requested them to terminate the subtenancy agreement with PERSON .", "ORG It would appear that ORG asked ORG to collect the rent direct from Mr GPE . On DATE ORG allegedly sent Mr NORP receipts relating to the payment of rent from DATE and - what is denied by the applicant - specified that in collecting the sums in question they were not recognising the existence of any direct legal relationship between Mr GPE and GPE .", "ORG In a registered letter of CARDINAL DATE ORG informed PERSON that they were terminating the subtenancy agreement with effect from its expiry . The applicant then applied to the Rents and Leases Conciliation Board for an extension of the agreement . No settlement having been reached , he applied to the Rents and Leases Tribunal but subsequently withdrew the application .", "ORG From DATE the management of the block was taken over by ORG agency ( \" ORG \" ) . The latter notified the applicant of their bank account number . In an unanswered letter of CARDINAL DATE Mr GPE confirmed to the agency that he would in future pay the rent into that account . He maintains that he did so DATE from DATE to DATE , taking care to write \" rent \" on the payment advice slips , without meeting any objection .", "ORG On DATE the applicant and his wife had an interview - the terms of which are disputed DATE with PERSON , the director of ORG ( see paragraph CARDINAL below ) .", "ORG On DATE Chrysanthemum brought an action for possession in the Canton of ORG , alleging that the applicant was occupying the premises unlawfully since his subtenancy agreement had been terminated .", "PERSON argued that the court had no jurisdiction ratione materiae , maintaining that he had an orally agreed lease from the plaintiff .", "The court thus had to determine whether the conduct of the protagonists amounted to an agreement to enter into a lease after the termination of the subtenancy .", "ORG The court held a hearing on DATE . It heard Mr PERSON ( ORG ) , Mr FAC ( Naef ) and PERSON ; Mr PERSON ( Chrysanthemum ) and the applicant also gave evidence . Only the first CARDINAL were heard as witnesses on oath .", "The transcript of the testimony reads as follows :", "\" ...", "Mr PERSON ...", "When I resumed [ the management of the building in DATE ] , PERSON was occupying the premises but he had no written or oral lease or even a tacit one .", "It is true that I had an interview with PERSON on my own initiative ... I wanted to know what Mr GPE ’s position was . I made it clear to him that in my view he did not have a lease .", "Mr PERSON said that he very much wished to remain in the flat on sentimental grounds , having , so he said , written a book there . He may have told me that he had earlier supposedly been granted an oral lease , but I can not state that with certainty . At all events , PERSON did not ask me to have a lease drawn up for him .", "At the end of the interview Mr PERSON suggested to me that he pay a higher rent in order to be able to stay in the flat . I suppose that implies that he was asking to be given a lease .", "I told the defendant that I would pass on his request to the landlord . I told him clearly , both at the beginning and at the end of the interview , that I could not take a decision myself .", "I consequently informed the landlord of the conversation I have just described . He told me that he did not wish to proceed in the matter and he did not give me the reasons .", "I did not myself communicate the shareholder ’s position to PERSON but , on the other hand , I did send the file to our lawyer , who must have informed him of the shareholder ’s position .", "My office staff must , it would seem , have communicated our account number to Mr LOC when we took over from GPE .", "...", "I heard about an agreement that had earlier been made between ORG and PERSON to the effect that PERSON should pay the rent direct to ORG .", "Mr GPE ...", "I have worked for ORG since DATE .", "...", "We knew that PERSON was in de facto occupation of the premises ...", "... In DATE or DATE Mr LOC came to see me and told me that his position vis - à - vis ORG was a rather special one . I can not remember now the exact reasons . The defendant asked that we should draw up a lease in his name .", "At the same time ORG had asked us to collect the rent direct from Mr GPE ... I myself handed the file over to another property - management company on DATE , and at that time , as far as we were concerned , Mr GPE ’s position remained as we had described in our letter of DATE ...", "It is true that on DATE we had informed PERSON about the proposed works in the building . That was because we could not ignore his presence in the building .", "...", "PERSON ...", "I was present at the interview with PERSON in DATE . Mr PERSON asked us what our intentions were regarding this flat and we told him that we wanted to stay in it . He then explained to us that the building was going to be made higher and asked whether the works would not inconvenience us . We replied that the works might perhaps inconvenience us but that we would put up with it since we wanted to stay . Mr PERSON added that at all events the process would be a long one , because the architect ’s plans had not been approved by ORG . He also told us that during the building work we could occupy another flat in the block and that after the work was completed we could occupy a newly built flat at the top of the house . Or else we could move back into our second - floor flat .", "When we left , PERSON told us that he would keep us informed . When we came out we were really reassured and optimistic .", "PERSON never asked us to look for a flat elsewhere and he did not indicate that we had to leave within a given time .", "I can not remember if PERSON said that he was going to consult the landlord . I myself had the impression that he had some freedom of action .", "Mr PERSON : I have myself been the director of the plaintiffs since DATE . I have never set eyes on PERSON until DATE . I once replied to a letter he had sent me asking for an interview and I told him that his case was being dealt with by GPE ’s legal department .", "... It is true that I told PERSON that I refused to give PERSON a lease . We had never accepted that PERSON had a tenancy and I did not wish us to agree to it . I knew from the beginning that PERSON was occupying the LOC . He is up to date with the rent .", "I would not have been opposed to a settlement at the outset but relations with Mr LOC have become difficult . I have already allowed PERSON DATE .", "Mr NORP : When I concluded the lease with ORG , I did not realise that it was a subtenancy . I had consulted a lawyer before signing it .", "Mr PERSON says DATE that it is not easy to get on with me , but he said before that he wanted us out because he wanted to renovate his building . \"", "ORG On DATE the court held that there was no lease agreement between the parties and ordered Mr GPE to move all property and persons from the flat and restore it to the plaintiffs in good condition . The judgment reads as follows :", "\" ...", "Mr GPE , an employee of [ Naef ] , told the ORG that the tenant , ORG , had asked ORG to collect the rent direct from Mr GPE .", "This arrangement was accepted , the payments being received as an indemnity for unlawful occupation , as appears from a letter of DATE ...", "On DATE the new management , the ORG agency , wrote to ORG , asking that in future the company should pay the indemnity for Mr LOC ’s unlawful occupation to their own office .", "PERSON , an employee of the new management , told the ORG that he had had an interview with PERSON and had made it clear to him that in his view Mr GPE did not have a lease .", "PERSON , he said , implicitly requested that a lease should be drawn up , to which Mr PERSON said he had replied that it was not for him to decide .", "PERSON , the director and shareholder of the plaintiffs , told the ORG that he had never agreed , and did not wish to agree , to enter into a lease with the defendant .", "However , ... PERSON had been supplied personally with ORG account number and wrote to that company on CARDINAL DATE to inform them that in future he would pay the rent into their account ...", "That letter does not appear to have been answered , except that , DATE , the lawyer instructed by the landlord wrote to enquire when PERSON would be leaving .", "The defendant ’s wife - who was present at her husband ’s interview with Mr DATE recalled from that interview that the property - management company had been contemplating offering them another flat in the building for the duration of the works , and that when they had left Mr PERSON , the couple had had every reason to be reassured , seeing that they were not being asked to leave the LOC .", "...", "In law the only issue which it is necessary to resolve is whether the defendant , since his sublease was terminated , has been given a lease by the landlord .", "A lease may be entered into orally , although it is to be noted that property - management companies customarily draw up a written agreement .", "In the instant case no lease has been signed since the termination of the sublease .", "None of the documents produced discloses any agreement by the plaintiffs to enter into a lease .", "It remains to be determined whether , by not immediately or clearly replying to the defendant ’s letter of CARDINAL DATE or by allowing an employee of the property - management company to tell the defendant that he was going to refer back to the landlord , the plaintiffs DATE under the doctrine of good faith – have agreed to enter into a lease .", "The ORG reaches the conclusion that , in the circumstances of this case , no lease was entered into orally ( the existence of an oral agreement has not been proved ) or even implied by the clear conduct of the parties .", "While it is true that the defendant wishes to remain in the flat , it is not even apparent from the evidence that he has clearly asked for a lease to be drawn up .", "Despite the unambiguous letters from the plaintiffs , the defendant did not take the trouble to reply in writing .", "He therefore could not truly suppose DATE in good faith – that the plaintiffs were implicitly granting him a lease .", "He had all the less reason to assume a tacit agreement of this kind as , since the termination of the head lease , and accordingly of the sublease , proceedings had been pending for an extension of the lease , during which the landlord had clearly denied being contractually bound to the defendant or wishing to be .", "Consequently , there is no lease between the parties .", "... it must be held that the defendant is on the LOC unlawfully .", "Article CARDINAL para . CARDINAL [ of LAW ] applies in this case ... \"", "ORG In a judgment of DATE the GPE of ORG dismissed an appeal by Mr GPE on the following grounds :", "\" The ORG can not but agree with the court below that there was no contractual relationship between the landlord , ORG , and PERSON . It is bold to argue that the existence of a lease is evidenced by the conduct of the landlord or of the landlord ’s representatives , who , on the contrary , always emphasised their determination not to enter into a lease with ORG for flat at no . CARDINAL , FAC , second floor . The fact of having handed over rent receipts accompanied by the letter of DATE or of not having replied to the appellant ’s letter of CARDINAL DATE can not be construed as meaning that a lease was in existence . It follows , in the absence of any lease , that ORG had jurisdiction ratione materiae .", "... According to this ORG ’s case - law , a landlord is entitled to raise his ownership against a subtenant and to rely on Article CARDINAL para . CARDINAL [ of LAW ] , in the absence of any legal relationship between the parties ...", "The sublease is a lease between the tenant and the subtenant ...", "Having been given notice for DATE , PERSON , from DATE , no longer has any right to remain on the LOC .", "... \"", "ORG The applicant lodged a public - law appeal with ORG against ORG judgment . In his pleading he relied , in particular , on Articles CARDINAL and CARDINAL of the Convention ( article CARDINAL , article CARDINAL ) and argued :", "\" ... the fact that [ the cantonal courts ] allowed the representative of a party to be heard as a witness on oath created a flagrant inequality vis - à - vis the other party , who by the force of circumstance was not able to call witnesses to whom the oath could be administered . The equality of arms guaranteed both in LAW and in LAW was not ensured . Such inequality is all the more flagrant where the court dealing with the case has not taken the slightest account in its decision of statements made by a witness , even if heard purely for information purposes . This was a gross breach of the law , which expressly provides , even if it precludes taking the oath , that a spouse may testify and therefore implies that the court dealing with the case will consider that evidence . \"", "ORG of ORG delivered its judgment on DATE . It declared inadmissible - in particular - the complaint based on a violation of Articles CARDINAL and CARDINAL of the Convention ( article CARDINAL , article CARDINAL ) , as follows :", "\" ... On a public - law appeal , ORG will consider only the complaints adequately pleaded ... the notice of appeal must contain , inter alia , a succinct statement of the constitutional rights or legal principles violated , specifying in what the breach consists ( section CARDINAL ( CARDINAL ) ( b ) of LAW ) .", "... In many respects , the present appeal does not comply with this requirement that reasons must be given .", "This is true ... of the ground based on a breach of Articles CARDINAL and CARDINAL ( article CARDINAL , article DATE ) [ of the ] NORP Convention on Human Rights , of which the appellant makes a bald assertion without providing any explanation . \"", "ORG Dismissing the remainder of the appeal , ORG said :", "\" The appellant also submitted that ORG had made an arbitrary assessment of the evidence taken by the court below .", "...", "... If the appellant ’s argument , which is not very clear , has been understood correctly , the cantonal appellate court inadmissibly took into account the interview that PERSON had with the appellant in DATE in the presence of the appellant ’s wife , in that it completely ignored her statements and only took Mr PERSON ’s statement into consideration .", "In this connection it must be pointed out that the appellant ’s wife was heard only for information purposes and without taking the oath , in accordance with LAW [ of the ] LAW [ of GPE ] . According to commentators on GPE ’s LAW , however , hearing a witness for information purposes is of purely informative import and has no probative value ... There was therefore nothing arbitrary in the instant case in not taking account of the explanations provided by PERSON . The appellant did not , moreover , show in what way the cantonal appellate court had unsustainably interpreted the statements made by the sworn witness PERSON . Contrary to what he appeared to be arguing , the court below did not infer from those statements that the witness had indicated to the appellant that he would have to leave the flat . It merely found that Mr PERSON ` confirmed that he would pass on to the landlord ORG ’s wish to enter into a new FAC . The appellant did not attack that finding .", "...", "The present appeal is manifestly ill - founded , and it must accordingly be dismissed in so far as it is admissible . \"", "Mr and PERSON left the flat in issue on DATE .", "ORG The relevant provisions of ORG of DATE , which came into force on CARDINAL DATE , are the following :", "\" Unless otherwise laid down by law , the court shall freely assess the results of measures taken to obtain evidence . \"", "\" Anyone of sound mind who has been lawfully summoned shall be required to appear as a witness to give evidence on oath . \"", "\" CARDINAL . The following can not be heard as witnesses :", "( a ) lineal relatives of CARDINAL of the parties ;", "( b ) brothers and sisters ;", "( c ) uncles and nephews ;", "( d ) relatives of the same degree by marriage ;", "( e ) spouses , even if divorced .", "The parties may , however , have these persons heard as witnesses , with the exception of descendants , in proceedings for withdrawal of parental authority , in matters concerning personal status and in cases concerning judicial separation , divorce and measures to preserve marital union . \"", "\" The persons referred to in LAW para . CARDINAL may be heard as witnesses in other cases without distinction , but without taking the oath and solely for information purposes .", "... \"", "ORG LAW of LAW of DATE provides :", "\" CARDINAL . In addition to identifying the order or decision being appealed against , the notice of appeal must contain :", "( a ) the appellant ’s submissions ; and", "( b ) a statement of the main facts and a succinct statement of the constitutional rights or legal principles violated , specifying in what the breach consists .", "... \"" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in Bramminge . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant owned and managed CARDINAL private limited companies , which each ran CARDINAL freshwater fish farms .", "On DATE the applicant was charged with offences against the Act on Freshwater Fish Farms of CARDINAL DATE ( bekendtgørelse nr . CARDINAL ) as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment , and with enrichment for himself .", "An indictment of CARDINAL DATE , and supplementary indictments of CARDINAL DATE , DATE and DATE , amended on DATE , were submitted to ORG in ORG ) , concerning offences against the said LAW and the amended Acts on LOC of DATE ( bekendtgørelse nr . CARDINAL ) and of DATE ( bekendtgørelse nr . CARDINAL ) and LAW ( PERSON ) . The supplementary indictments were submitted because the applicant continued to exceed the fixed feed quotas until DATE .", "Having received the indictment of CARDINAL DATE , ORG held a hearing on DATE , after which it adjourned the case in order that the applicant ’s counsel submitted a legal opinion . On DATE the latter maintained that ORG interpretation of section CARDINAL of LAW was not supported by the preparatory notes to LAW , nor by its wording and the administrative practice relating to the LAW . Moreover he found that ORG did not have the necessary authority to change the legal basis of the applicant ’s business by means of the LAW on Freshwater Fish Farms . Finally , he claimed that LAW did not provide the necessary legal authority for LAW on Freshwater Fish Farms .", "On DATE , having obtained observations from various authorities , the Chief Constable of Hobro ( Politimesteren i Hobro ) submitted his reply to ORG . Thereafter counsel was requested to file his reply by DATE , on his request , however , the time - limit was extended .", "In the meantime , on DATE , ORG of Terndrup ( PERSON ) passed judgment in a similar case , ruling on a number of questions of principle , which were also of importance in the applicant ’s case , including whether LAW had legal authority , how to calculate the fish farmers’ profit and how to assess a proportionate fine . An appeal against the judgment was lodged with ORG ) .", "The applicant ’s case was adjourned awaiting the outcome of the said appeal , since it was considered to be a so - called “ test - case ” . The applicant ’s counsel represented the defendants in the said case and the applicant did not object to the adjournment of his case .", "The appeal proceedings in the test - case were finally determined by a ORG judgment of CARDINAL DATE , which stated that LAW provided the requisite authority and that the sanction for any violation of it should be imposition of a fine and confiscation of any profit .", "As a consequence of the judgment , ORG of Aalborg ( Statsadvokaten i Aalborg ) , who at the relevant time had CARDINAL similar cases being prosecuted by him in the first instance , forwarded a memorandum to all the Chief Constables in DATE , urging them to expedite the “ fish farms cases ” .", "In DATE , however , a defendant in another test - case alleged that the CARDINAL Act was anti - competitive and therefore in conflict with ORG law . Thereupon ORG of GPE requested ORG ) and ORG set up by ORG ( PERSON for juridiske spørgsmål ) to provide an opinion . Neither found that the LAW fell within the scope of LAW of the ORG treaty . In DATE , in the specific testcase , ORG ruled that it found no reason to refer to question to ORG . Against this background , in DATE , ORG of GPE forwarded CARDINAL memoranda to the Chief Constables urging them to expedite the fish farm cases as much as possible .", "In the meantime , in DATE in yet another test - case , a defendant had alleged in vain that the CARDINAL Act was contrary to section CARDINAL of LAW . Consequently , in DATE ORG of Sønderborg ( Statsadvokaten i ORG ) forwarded a memorandum to all the Chief Constables providing an account of the latest development in the cases concerning fish farms and urging to expedite them .", "It appears that as from DATE difficulties arose as to setting the applicant ’s case down for trial because his counsel was busy and that therefore the applicant changed lawyer . On DATE the applicant ’s new counsel inquired about the length of the proceedings .", "On DATE , the Chief Constable of PERSON replied that subsequent to the test - cases having been determined it had been difficult to set the applicants’ case down for trial , and that this was probably the reason why the applicant had changed counsel .", "The trial took place before ORG in the period DATE . Hearings were held on DATE , DATE , DATE , DATE , DATE and DATE .", "ORG passed judgment on DATE . The applicant was convicted and sentenced to pay a fine of CARDINAL Danish kroner ( ORG ) . In addition , a profit estimated to DKK CARDINAL was confiscated from the CARDINAL companies owned by him .", "The applicant appealed immediately against the judgment to ORG GPE . On DATE the prosecution crossappealed .", "Shortly thereafter counsel informed ORG that he was of the opinion that the LAW on Freshwater Fish Farms had not been notified to ORG as prescribed by the CARDINAL/CARDINAL/EEC ORG CARDINAL . He urged the prosecutor to withdraw the charges against the applicant and stated that otherwise he would request a reference for a preliminary ruling by ORG . In this connection a hearing was held on DATE and written pleadings were submitted .", "Thereafter the case was adjourned in order to await the outcome of CARDINAL similar criminal cases which on DATE had been jointly brought before ORG ( Højesteret ) ( see PERSON CARDINAL.CARDINALH and UfR. CARDINAL.CARDINALH , dealt with in PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ) , because the arguments of the defendants in the said cases and those of the applicant were identical . The applicant ’s counsel represented the CARDINAL defendants PERSON and PERSON in their case before ORG ( for a summary of those proceedings , which ended on DATE , when ORG passed judgments against the defendants , see PERSON and PERSON v. GPE , cited above , § § DATE ) .", "On DATE the Prosecutor General forwarded a letter to ORG and others stating that the adjourned cases could now proceed .", "On DATE ORG requested ORG to set down the applicant ’s case for trial . However , since the Prosecution and the environmental authorities had to discuss and coordinate the claims made in all the cases concerning fish farming , ORG requested that the case should not be scheduled before DATE .", "It appears that at some date DATE , the High ORG scheduled the trial in the present case to take place during DATE in DATE .", "On DATE , counsel stated that he was unable to appear on CARDINAL of the relevant dates scheduled by ORG . At the same time he made various submissions in favour of adjourning the case awaiting the outcome of a civil case lodged by the applicant concerning administrative decisions relating to the applicant ’s profession , which allegedly was of importance to the criminal case against him . The prosecutor submitted his objection thereto on DATE .", "On DATE the Prosecutor General issued guidelines to the prosecution ( ORG nr . CARDINAL/CARDINAL ) on how to go about with this kind of criminal cases and which sentences to propose .", "On DATE , having regard to the fact that counsel was unable to appear on CARDINAL of the relevant dates in DATE , ORG decided to re - schedule the trial . It refused counsel ’s request that the case be adjourned awaiting the outcome of the civil proceedings lodged by the applicant .", "In DATE counsel requested anew an adjournment of the case . The prosecutor objected thereto on DATE . On DATE the request was refused by ORG . On DATE ORG scheduled the trial to take place during DATE on DATE .", "On DATE the trial had to be adjourned until further notice as the applicant had a legal cause of absence . It was re - scheduled and took place from CARDINAL until DATE .", "On DATE counsel for the applicant submitted further material to ORG and notified it that he would claim that the length of the proceedings should be taken into account when determining the sentence .", "By judgment of DATE the High Court of Western GPE upheld the applicant ’s conviction with few amendments and reduced the fine to DKK CARDINAL and the amount to be confiscated to a total of DKK CARDINAL .", "With regard to the applicant ’s complaint under LAW , ORG found that the proceedings had commenced on DATE and ended with its judgment of DATE , thus lasting DATE . It found that the case had been comprehensive and complex and taking all circumstances into consideration , including the awaiting of important and relevant “ test cases ” the High Court found that the length of the proceedings had not exceeded the “ reasonable time ” requirement within the meaning of LAW .", "On DATE the applicant requested leave to appeal against the ORG judgment and on CARDINAL and DATE he submitted supplementary pleadings . In the request the applicant did not complain about the length of the proceedings or invoke LAW . His request was refused by the Leave - to - Appeal Board ( Procesbevillingsnævnet ) on DATE on the grounds that it had been filed after the expiry of the time - limit which was DATE after the delivery of the judgment . ORG did not find that the time - limit had been exceeded for excusable reasons , or that the case presented any such extraordinary circumstances as would make it incumbent on ORG to grant leave to appeal .", "ORG provides in as far as relevant :", "“ ORG notifies ORG of the scheduling of the trial , and informs [ him or her ] and the accused about assignment of counsel [ if any ] . The information to the accused thereon may be given through ORG in connection with the serving of the summons ” .", "According to this provision a [ criminal ] judgment passed by a High ORG , acting as an appeal court , can not be appealed against . However , the Leave - to - Appeal Board may grant leave to appeal to a court of third instance if the case involves matters of principles or if special circumstances in the case so justify . A request for leave to appeal must be submitted to the ORG within DATE from the passing of the judgment . However , ORG may exceptionally grant leave to appeal if the request is submitted later , albeit within DATE from the passing of the judgment ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .", "The applicant is a practising lawyer . Together with several other persons who were shareholders and managing director of a private limited company , the applicant learned in DATE about the existence of several plots of land on the territory of the former GPE ( GPE ) for which no restitution claim had yet been made . Pursuant to ORG DATE , whose aim was to resolve disputes over property in the territory of the GPE in a way that was socially acceptable , the deadline for the registration of such restitution claims was DATE . The applicant applied for restitution of the above plots of land without revealing that he did not have the authority of the persons who were entitled to restitution and whose names he did not know at the time . He later obtained such authority , predated the forms to a date prior to DATE and intended to arrange the assignment of the restitution claim to the private limited company for a price that was considerably below the market value of the plots of land .", "ORG commenced investigations for fraud against the applicant in DATE and filed the indictment on DATE .", "On DATE , ORG convicted the applicant of abetting attempted fraud in CARDINAL instances and sentenced him to a fine of CARDINAL DEM . The main proceedings had been conducted during the period DATE and DATE and concerned the applicant and CARDINAL other accused persons ; the judgment contained CARDINAL pages .", "On the applicant ’s appeal on points of law , ORG on DATE quashed the judgment of ORG of CARDINAL DATE and referred the case back to another division of ORG . ORG found that ORG had not provided sufficient reasoning as to the accuseds’ intent with regard to the unlawfulness of the pecuniary benefit , an element of fraud under NORP law . Since the NORP administrative courts at the time had been divided over the issue whether or not the registration for restitution by a representative without authority could be retroactively authorised , ORG had erroneously inferred from the predated authority forms that the applicant and his co - accused had had the requisite intent . ORG referred the case back to ORG in order to establish whether the applicant had acted with contingent intent . Lastly , it found that in case of a subsequent conviction , ORG when sentencing would have to take into account fact that the proceedings against the applicant had lasted for a considerable time . The length of time would also have to be considered by ORG in the context of LAW .", "On DATE , ORG , after having obtained the consent of ORG and the applicant , provisionally stayed the proceedings in accordance with section CARDINAL § CARDINAL read in conjunction with section CARDINAL § CARDINAL of LAW ( see Relevant domestic law , below ) on condition that the applicant paid the amount of CARDINAL € to the ORG treasury . The applicant paid the sum , and on DATE , ORG formally discontinued the proceedings .", "Section CARDINALa of the Code of Criminal Procedure governs the discontinuance of criminal proceedings after the fulfilment of certain conditions by the applicant .", "According to section CARDINALa § CARDINAL of LAW , ORG may discontinue criminal proceedings if they concern an offence for which it is not mandatory to impose a sentence of DATE imprisonment ( PERSON ) , if the defendant ’s guilt would be of a minor nature and if the fulfilment of certain conditions or orders by the defendant is suitable to remove the public interest in criminal prosecution . Such conditions notably entail the payment of a sum of money to a non - profit - making organisation or to a treasury . The defendant must consent to discontinuation . Moreover , the court which has jurisdiction to open the main proceedings must also consent unless the case concerns offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence were minor .", "After the filing of the indictment , the court which has jurisdiction may , according to section CARDINALa § CARDINAL of LAW , decide to discontinue the proceedings under the conditions set out in section CARDINAL § CARDINAL with the consent of both ORG and the defendant . Once the proceedings have been discontinued , it is not longer open to the parties to take any further steps in the procedure unless the proceedings are resumed , which is only possible if the accused is charged with an offence for which it is mandatory to impose a sentence of DATE imprisonment ( PERSON ) ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Mr J. Pernica , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant lodged an action with ORG ( městský soud ) claiming the separation of the marital property .", "It appears that the proceedings are still pending .", "On DATE the applicant applied for compensation pursuant to Act no . CARDINAL/CARDINAL as amended . She claimed CZK CARDINAL ( ORG CARDINAL ) in respect of pecuniary damage and expenses incurred in the judicial proceedings and CZK CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) in respect of non - pecuniary damage .", "In a letter of CARDINAL DATE ORG informed the applicant that her application had been accepted , that it had been found that her right to a determination of their civil claim within a reasonable time had been violated and that the applicant had been awarded a sum of CZK CARDINAL ( EUR CARDINAL ) in respect of non - pecuniary damage she might have sustained . ORG refused , however , the applicant ’s claim regarding compensation for pecuniary damage .", "On DATE the applicant informed the Registry that she did not intend to turn to a court under section CARDINAL(CARDINAL ) of Act no . CARDINAL/CARDINAL as amended .", "The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) ." ]

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[ "The applicant [ Mr PERSON ] , a NORP national born in DATE , used to live in GPE . He was represented before the Court by Mr K .- PERSON , of GPE . The applicant died on DATE , but his sons ( Mr PERSON and Mr PERSON ) wished to continue the proceedings before the ORG .", "The applicant was a urologist and had opened his own surgery in GPE ( GDR ) in DATE .", "From DATE he had subscribed to the GPE ’s general pension scheme by paying compulsory social - insurance contributions ( ORG ) and , from DATE , optional supplementary pension insurance ( freiwillige PERSON ) . He had also subscribed to additional pension schemes ( Zusatzversorgungssysteme ) of the GPE by taking out optional pension insurance ( freiwillige PERSON ) and paying contributions to ORG and Dentists ( ORG für ORG in eigener Praxis ) .", "From DATE the applicant received a DATE pension of ORG marks from the compulsory social - insurance fund and MONEY from the optional supplementary pension fund .", "The applicant also received a DATE pension of MONEY pursuant to ORG ( Verordnung über die freiwillige ORG ) of DATE , and a DATE supplementary pension of MONEY from ORG and Dentists , which was increased to MONEY from DATE .", "As at DATE , after a number of increases , the applicant was receiving a total DATE pension of MONEY ( excluding the pension paid pursuant to ORG of DATE ) .", "Pursuant to LAW of DATE between GPE ( FRG ) and the GPE on ORG ( Staatsvertrag über die LANGUAGE einer Währungs- , Wirtschafts- und MONEY Bundesrepublik GPE und der GPE Republik – see “ Relevant domestic law ” below ) , GPE pensions were converted at the rate of CARDINAL GPE mark for CARDINAL FRG mark ( ORG ) and paid in that currency .", "From DATE the applicant accordingly received a DATE pension of DEM CARDINAL,CARDINAL .", "In CARDINAL decisions of ORG for Salaried Employees ( GPE für ORG ) of DATE and DATE on the conversion and alignment of GPE pension rights from DATE , the applicant ’s pension was incorporated into the ORG ’s general pension scheme and paid as an “ ordinary old - age pension ” ( PERSON ) in accordance with the method of calculation provided for in the new pensions law ( LAW and CARDINAL of Social Code no . VI ( GPE ) DATE see “ Relevant domestic law ” below ) .", "At first ORG for Salaried Employees continued to pay the applicant DEM CARDINAL,CARDINAL . It subsequently increased the applicant ’s pension to DEM DATE from DATE .", "In a decision of DATE ORG ( PERSON ) dismissed an objection lodged by the applicant on DATE , DATE and CARDINAL DATE against the decision of ORG challenging , among other things , the basis on which his pension rights under the GPE ’s additional pension schemes had been calculated .", "In a judgment of DATE ORG ( ORG ) also dismissed an appeal by the applicant .", "In a judgment of DATE ORG ( Landessozialgericht ) of ORG modified the earlier decisions and judgments in part and awarded the applicant , from DATE , a pension indexed to the cost of living ( anzupassende GPE ) of DEM CARDINAL,CARDINAL.CARDINAL per month and a non - indexed pension ( nichtanpassungs - fähige PERSON ) of DEM CARDINAL per month , making a total of DEM DATE .", "ORG held that the applicant ’s pension should be calculated on the basis of LAW no . VI ( see “ Relevant domestic law ” below ) because he had also paid contributions to the GPE ’s optional supplementary pension fund .", "In a judgment of DATE ORG ( ORG ) set aside that judgment , on appeal by the authorities , on the ground that the alignment and transfer of the applicant ’s pension should be based exclusively on LAW no . VI because the total amount of the pension was based at least in part on pension rights accrued under an additional or special retirement scheme ( ORG aus einem Zusatz- oder LAW ) of the GPE .", "ORG reiterated that , in this type of case , it was always the special law relating to the GPE ’s additional and special retirement schemes as set out in LAW ( Einigungsvertrag – see “ Relevant domestic law ” below ) and the provisions of the PERSON on ORG ( Anspruchs - und ORG ) and LAW no . ORG that were applicable .", "ORG held that the difference in treatment between persons having acquired “ real ” pension rights under the GPE ’s general pension scheme , comprising the compulsory social - insurance fund and the optional supplementary pension fund , and persons having acquired pension rights under the GPE ’s additional and special pension schemes was justified . In the former case there was a clearly established link between the contributions paid and the benefits received , and it was possible to rely on the data in the files kept by the insurance funds ( ORG in den Sozialversicherungsausweisen ) . However , with regard to pension rights under the additional and special retirement schemes , the position was much more confused ( unübersichtlich ) : the legal basis was unclear , there was only a partial obligation to pay contributions , which , even where it existed , was treated inconsistently both in respect of the income to be taken into account and of the total contributions payable ; lastly , the data available on the insured ’s life was often unusable .", "ORG added that the possibility could not be ruled out , having regard to the fact that the benefits paid under the additional and special pension schemes were far greater than those paid under the general pension scheme , that the former pension rights had been greater than those of other employees in the GPE for political reasons .", "ORG concluded that the legislature was therefore justified , under the provisions applicable during the transitional period ( LAW no . VI ) , in making a standardised calculation and taking as a basis the average salary used as a reference by the compulsory social insurance fund .", "In DATE the applicant lodged a constitutional appeal with ORG ( Bundesverfassungsgericht ) . He submitted that the reduction ( “ Abschmelzung ” ) of his pension rights under the additional pension scheme had breached his right of property and constituted unjustified discriminatory treatment compared with his counterparts of the ORG and with persons eligible for a pension under the GPE ’s general pension scheme . The amount of his pension had , accordingly , fallen to an abnormally low level compared to the rights acquired in the GPE .", "In a judgment of DATE ORG , after hearing submissions from ORG , ORG for ORG , ORG , ORG and CARDINAL experts , also dismissed the applicant ’s appeal , on the ground that the impugned provisions were not contrary to LAW ) .", "ORG first reiterated the general difficulties involved in transferring and incorporating the pension rights of all pensioners from the GPE into the ORG ’s pension scheme . Those difficulties were due to the large number of pensioners ( CARDINAL ) to be incorporated and the fact that the CARDINAL schemes were based on very different principles . Whereas in the FRG the amount of benefits depended mainly on the contributions paid , the system in the GPE had been a mixture between an insurance scheme and a pension scheme ( GPE zwischen Versicherungs- und NORP ) .", "ORG went on to stress that the legislature had had a wide margin of appreciation in that regard and that , for practical reasons , it had been justified for at least a transitional period of DATE in using a standardised method of calculation resulting DATE provisionally – in certain differences of treatment regarding , inter alia , the time at which the amount of the pension was finally determined ( GPE endgültigen GPE ) , the taking into consideration of DATE of service in calculating the DATE pension ( LOC der PERSON Ermittlung des monatlichen PERSON ) and the determination of the minimum protected amount ( GPE ) between pension rights under the general pension scheme and those under the GPE ’s additional and special schemes . However , from DATE those pension rights had been recalculated and the difference paid retrospectively , as had been the case for the applicant .", "ORG added that , having regard to the difficulties of incorporating CARDINAL scheme into the other , the legislature had not exceeded its margin of appreciation , considering that – during DATE the pensioners whose pension rights had accrued under the additional pension schemes were not so severely affected by the provisional difference of treatment because they had a higher standard of living than the pensioners whose pension rights had accrued under the general pension scheme .", "ORG pointed out that in the case of the applicant ORG for Salaried Employees had further adjusted his pension on DATE , increasing it retrospectively from DATE .", "In the same judgment ORG found that at DATE , when it came to calculating the definitive amount of pensions , an inequality of treatment remained regarding the taking into consideration of the total number of DATE of service between pension rights accrued under the general pension scheme ( where only DATE of service were taken into consideration ) and pension rights accrued under the additional pension schemes of the GPE ( where DATE of service were taken into consideration ) .", "ORG found that this difference in treatment breached LAW and ordered the NORP legislature to put new rules in place by DATE . However , that complaint had not been raised by the applicant , but by a third party who had also lodged a constitutional appeal .", "On DATE ORG delivered several leading judgments in other cases which also concerned the method used to transfer former GPE citizens’ pension rights .", "From DATE the applicant received a DATE pension of DEM CARDINAL,CARDINAL .", "The pension system of the GPE comprised the general pension scheme , which was composed of the compulsory social insurance fund ( GPE ) and the optional supplementary pension fund ( freiwillige PERSON ) , and a host of additional pension schemes ( Zusatzversorgungssysteme ) , including , among others , the optional pension fund ( freiwillige PERSON ) and ORG and Dentists ( ORG für ORG in eigener Praxis ) , which paid extra benefits in addition to the pensions payable under the general scheme .", "LAW of DATE between the ORG and the GPE on ORG ( Staatsvertrag über die LANGUAGE einer Währungs- , Wirtschafts- und MONEY der Bundesrepublik GPE und der GPE ) provided for pension rights accrued under the GPE scheme to be brought into line with those accrued under the ORG scheme and to be reconverted into MONEY ( ORG ) at the rate of CARDINAL GPE mark for CARDINAL FRG mark ( Articles CARDINAL § CARDINAL and CARDINAL of the LAW ) , and set out the terms and conditions of transfer of those pension rights .", "LAW in question is worded as follows :", "“ … Acquired rights and future rights shall be transferred to the [ FRG ] pension scheme , but the benefits payable under the special provisions shall be re - examined with a view to eliminating unjustified benefits and reducing excessive benefits … ”", "Those principles also appear in LAW ( Einigungsvertrag ) of CARDINAL DATE ( see PERSON , Chapter VIII , section H , paragraph III no . CARDINAL ( b ) ) .", "On the basis of that treaty the GPE legislature decided , in accordance with ORG ( Rentenangleichungsgesetz ) of DATE , that pensions under the general pension scheme and pensions under the additional pension schemes would be paid in full from DATE until their full and final incorporation into the FRG pension scheme .", "After NORP reunification on DATE the retirement scheme of the GPE remained in force until DATE , the date of entry into force of the ORG ’s PERSON of DATE on ORG ( Gesetz zur Herstellung der LANGUAGE in der gesetzlichen Renten- und GPE – ORG ) .", "During the transitional period from DATE to CARDINAL DATE , the CARDINAL pension schemes operated side by side in GPE .", "From DATE all DATE pension amounts were determined in accordance with a new formula , whereby the pensions paid to former GPE pensioners were progressively brought into line with those paid to ORG pensioners until such time as ORG incomes were the same throughout the ORG .", "The DATE pension amounts were determined in accordance with Articles ORG ( for the pension rights under the general pension scheme of the GPE ) and CARDINALb ( for the pension rights under the additional and special retirement schemes of the GPE ) of ORG no . VI of the ORG , which came into force on DATE .", "Article CARDINALa of Social Code no . VI provided for the overall and definitive conversion of pension rights accrued under the general pension scheme of the GPE from DATE by multiplying DATE of service to be taken into consideration by the number of salary points ( PERSON ) acquired during DATE of service .", "LAW no . ORG also provided for the conversion of pension rights under the additional and special retirement schemes by taking as a basis the average salary over DATE of service , but this was the average salary which had been used as a reference by the compulsory social insurance fund , and not individual salaries . However , those pension rights were recalculated after a transitional period of DATE and the difference was paid to pensioners retrospectively .", "On NORP reunification , pensioners of the GPE and the ORG found themselves in very different positions .", "According to the official statistics of ORG ) of the ORG , at DATE , the level of GPE pensions corresponded on average to CARDINAL of the level of FRG pensions , reflecting also the differences in salary and standard of living in GPE .", "In general , a pensioner who at DATE had been receiving , for example , a pension of MONEY received , without taking account of price increases , on average a pension of DEM DATE , which was equivalent to a real increase of PERCENT .", "Lastly , financial transfers from LOC to LOC , in connection with pensions , were of MONEY in DATE , ORG CARDINAL in DATE and MONEY in DATE ." ]

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[ "The applicants , PERSON , PERSON and PERSON , are NORP nationals who were born in DATE , DATE and DATE respectively , and live in GPE ) respectively . They were represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON ORG ORG , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicants brought proceedings for the restitution of their property which had been nationalised by the former communist regime .", "It appears that the proceedings are still pending .", "The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE , the applicant was informed that his claim had been disallowed as he was not a woman . On an unspecified date the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged .", "The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .", "The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "The applicant is a NORP national of NORP origin , born in DATE . At present he is detained in the PERSON prison in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "A.", "On DATE ORG convicted the applicant of murder . He was sentenced to CARDINAL years’ imprisonment . On DATE the applicant was served with a written copy of the first instance judgment . The applicant appealed .", "On DATE ORG held a hearing at which the applicant ’s counsel was present . The court dismissed the appeal , finding that the first instance court had properly decided the case .", "In DATE , the applicant approached the prison administration , asking why he had received no written version of the appellate decision of DATE . ORG informed him that on DATE ORG had in fact sent a written version of the appellate decision to a special hospital of ORG where , at the time , the applicant had been detained . The applicant applied to the ORG , who confirmed that the hospital had received the decision on DATE . The ORG advised the applicant to ask the hospital management about the alleged disappearance of the written decision . The applicant appears not to have approached the hospital management subsequently .", "Following the applicant ’s demand , on DATE ORG sent him a written version of the decision of CARDINAL DATE . On DATE he was furnished with another copy of the decision . The applicant expressed his intention to file a cassation appeal in the case but was informed by ORG that he had not complied with the CARDINAL months’ time - limit to file a cassation appeal under LAW .", "", "On DATE the applicant applied to ORG , complaining that he had been denied access to ORG . ORG advised the applicant to apply to ORG for leave to file a cassation appeal out of time pursuant to LAW . There is no indication that the applicant subsequently requested that leave .", "B. Relevant domestic law", "Pursuant to LAW , a decision of the appellate court dismissing an appeal is pronounced in open court . Reasons must be given . In its final form a written version of the decision must be prepared within DATE after its pronouncement . Pursuant to LAW , within DATE following its adoption the appellate decision must be transmitted , for execution , to the court which gave the first instance judgment . Under LAW the first instance court is then required to furnish a copy of the first instance judgment to the prison administration ( no time - limits are set by domestic criminal procedure in this respect ) . Article CARDINAL § CARDINAL also provides that , where the first instance judgment is amended or quashed , a written version of the appellate decision must also be sent to the prison for the defendant ’s information .", "Under LAW , a cassation appeal can be filed within DATE after the first instance judgment becomes effective . Pursuant to LAW , if the appeal against the first instance judgment is dismissed at appellate instance , the first instance judgment becomes effective on the date when the appellate decision was taken .", "Article CARDINAL § CARDINAL of the Code lays down the requirements for a cassation appeal . Pursuant to the above provision , a cassation appeal should include references to the name of a cassation court , the case and decision at issue , the substance of the decision and the reasons for appealing against it , and the appeal claims .", "Article CARDINAL § CARDINAL of LAW stipulates that , provided that a cassation appeal complies with the above requirements , a senior judge of an appellate court or cassation court should order the transmission of the case - file from the lower court . Within DATE following receipt of the case - file , a senior cassation court judge must issue an order accepting the appeal for consideration .", "", "Pursuant to LAW , a time - limit that was missed for an important reason can be reinstated by a court upon the request of the person concerned ." ]

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[ "ORG Mr PERSON was born in DATE and lives in GPE .", "ORG Since DATE the applicant has owned a refuse tip at GPE in GPE . He used to operate it under a revocable refuse - tipping licence granted to his predecessor in title on DATE under LAW DATE ( ORG ) .", "ORG On DATE the tipping licence was revoked by the Governor ( PERSON ) of ORG on the grounds , inter alia , that dangerously high levels of toxic substances had been found in the groundwater ( which forms part of a groundwater reservoir for drinking - water for CARDINAL people ) ; QUANTITY found at the site contained unauthorised substances ; and the site was in any event unsuitable for tipping - even ordinary domestic waste should not be dumped there .", "Mr PERSON appealed to ORG für Land- PERSON ) , complaining also that he should have had the right to be heard . On DATE the appeal was dismissed on the ground that it was absolutely essential to close the tip in order to safeguard water supplies , since it was not technically possible to render the site safe . As to the applicant ’s right to be heard , he had had ample opportunity to make his views known and an oral hearing was not required in proceedings involving revocation of licences .", "ORG On DATE Mr PERSON filed a complaint with ORG ) alleging a violation of , inter alia , Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , in that the administrative authorities had not granted his request for an oral hearing . He requested that a hearing be held before ORG . On DATE , pursuant to Article CARDINAL para . CARDINAL of LAW ( see paragraph CARDINAL below ) ORG declined to accept the applicant ’s complaint . It found that the bulk of the complaint related to allegations that the ordinary law had been applied incorrectly . To the extent that the complaint did touch upon questions of constitutional law , it did not have sufficient prospects of success . No hearing was held .", "ORG On DATE , before his constitutional complaint , the applicant had lodged an appeal with ORG ( Verwaltungsgerichtshof ) in which he alleged that the decision of CARDINAL DATE was unlawful and that the administrative authorities should have held a hearing . He requested that the decision be quashed and that a hearing be held before ORG .", "On DATE ORG dismissed the applicant ’s complaint as ill - founded pursuant to section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . The court found that an oral hearing before ORG had not been necessary and rejected the applicant ’s request for such a hearing before the court itself under section DATE ( CARDINAL ) ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) .", "ORG The following reasons were given in the judgment :", "\" The appellant submitted in the first place that in the reasons given for the decision at first instance the scope of the DATE licence was wrongly restricted in terms of area ; the revocation of the licence , which was upheld on appeal , without this question - raised in the appeal - having been dealt with , therefore remained contradictory . The ORG can discern no such contradiction . The revocation by the water - rights authority of first instance , which was upheld by the respondent authority , related - according to the terms of the formal order - to the DATE licence without any restriction . Similarly , where in the reasons given for the Land Governor ’s decision of CARDINAL DATE the words ‘ where the gravel pit has already been ORG used when parcel CARDINAL - CARDINAL PERSON is being particularised , they are merely taken from the decision of DATE whereby the licence was granted . Moreover , the use of the expression ‘ part of the area’ ( Teilfläche ) merely clarifies - in the context of setting out the earlier history - the meaning which the same authority attributed to the outline description in the decision whereby the revoked licence had been granted . This is not a legally binding determination , nor does it in any way restrict the revocation itself , which at all events applied to the DATE licence in its entirety , regardless of how the indication ‘ where the gravel pit has already been ORG which is not more closely defined - is to be understood . It is accordingly clear , without it being necessary to go into the appeal submissions in detail , that neither the aforementioned comment in the decision at first instance nor the absence of any reference to these issues in the impugned decision amounted to an interference with the rights of the appellant .", "It is irrelevant whether the reservation of the right to revoke the licence under LAW ( CARDINAL ) of LAW DATE was properly included in the DATE decision , as that decision became final and the aforesaid incidental provision became legally effective likewise . The ORG agrees with the respondent authority and , on this point , the appellant that even where , as in the present case , a reservation of the right to revoke is not spelt out in more detail , revocation is justifiable only where there are sufficient objective reasons for it ; these , however ( and to this extent the ORG ’s view does not coincide with the CARDINAL reflected in the decision appealed against ) , could only derive from considerations of public interest , since the right to revoke was not reserved in the interests of third parties . Ultimately , the revocation of a decision under LAW can only be regarded as objectively justified if it can be considered necessary within the meaning of the LAW ; and that applies only where it does not serve interests that can be asserted under provisions of LAW without any specific need for a revocation .", "The appellant criticises the respondent authority for having confirmed the revocation of the water - rights licence for no valid reason .", "The appellant complains that in the decision at first instance and in the impugned decision it is stated , among other things , that waste tipping in accordance with the terms of the licence could contribute to an increased potential hazard . In the decision at first instance the remark relating to an increased risk of this kind plainly goes back to a finding - also cited in the reasons - by the officially appointed medical expert that , in view of its position in the central area of the NORP basin , the site of the refuse tip was to be rejected on health grounds and represented a potential hazard to the groundwater . The same expert referred to a comment by the officially appointed technical expert , who had stated that by DATE criteria a renewal of the licence for a refuse tip on this site was to be ruled out . In the decision appealed against , the site of the tip as such was likewise described as problematical on the basis of the PERSON reports - in the expert opinion that is reproduced in the impugned decision it is stated that it was out of the question that areas where there were sources of groundwater suitable in quantity and quality for use as a water supply should be used for refuse tips - and the tipping of waste that endangered the groundwater was attributed to among other things the ‘ imprecise wording of DATE . This last observation concerns the past , and the appellant can not rely on the distinction between licensed and unlicensed tipping as set out in this ORG ’s decision of CARDINAL DATE , no . CARDINAL/CARDINAL/CARDINAL , to rebut it . This distinction was indeed recognised partly in contradiction of the view that had been advanced by the appellant ’s predecessor in title . It accordingly can not be ruled out that , prior to publication of the court decision just mentioned , the operator of the tip disregarded the differences that are pointed out in it and which are of importance as regards authorised tipping of waste . As to the technical comments on the choice of site , however , these appear to the ORG sufficient to justify the view that even authorised tipping was at least ‘ problematical’ on the particular site .", "The appellant further submitted that dumping in accordance with the licence had not so far been proved to have had any effects in the area around the tip ; he referred to the report of DATE by an officially appointed technical expert , in which , however , the possibility of groundwater contamination by domestic waste is also described in detail . In the expert report reproduced in the decision appealed against , reference was also made to the fact that a considerable length of time passed between the moment of pollution and the first observable signs of harmful substances in the subsoil or in the groundwater , a fact that had previously been regarded as pointing to the subsoil ’s ( only ) seemingly unlimited cleansing and storing capacity and in many cases had led to an approach to the siting and licensing of refuse tips that would nowadays be regarded as untenable . The fear of adverse effects on the groundwater is thus not shown to be baseless - as the appellant ’s objection amounts to saying - by even a single finding .", "The appellant further submitted that in the impugned decision an additional argument in favour of revocation was wrongly put forward to the effect that waste which was dumped contrary to the terms of the licence was so mixed up with that which was tipped in accordance with it that it was in practice impossible to separate the CARDINAL kinds . The appellant contended that this argument overlooked the fact that , according to the officially appointed technical expert ’s opinion of DATE on the issue of a general clearing up of the site , it was assumed that hazardous waste discovered on the site was separable from the other waste ; in the decision at first instance , moreover , such a mixing up was a mere supposition . Apart from the fact that in describing the CARDINAL types of waste as being ‘ in ORG inseparable ( as was assumed ) , account was clearly taken of the practical difficulties which were mentioned in the same expert opinion , with express reference to the need to establish ‘ a highly qualified water - supervision unit that must have appropriate facilities available to it for carrying out analyses and for the safe disposal of any hazardous waste’ , this observation concerning the past is in any case of no vital importance for the revocation , which has its effects in the future , preventing future dumping .", "The appellant pointed out that a mass of findings confirmed that there was no danger in the western part of the site , contrary to what was stated in the impugned decision ; it followed that the cleaned - up western part of the site was ready for use for dumping in accordance with the terms of the licence . The passages from the administrative file which the appellant cites in evidence in this connection do not , however , support that assertion . In the opinion submitted on DATE the domestic refuse deposited on the site is described by the expert as posing a threat to the groundwater , independently of the barrels to be disposed of . In a letter of CARDINAL DATE from the district authority ( ORG ) , which is also referred to by the appellant , it was admittedly announced that the cleaning - up operation had been completed , but at the same time the issue of what was to be done with the domestic waste whose existence had originally not been known about was also addressed . In an expert opinion of CARDINAL DATE , likewise cited by the appellant , it was confirmed that digging works were being carried out in the western part of the pit , but it was also noted that domestic waste had been found there and that it could not be ruled out that chemicals had been buried with it ; furthermore , the possibility of sealing the site without removing the waste was rejected on technical grounds and because of the danger that barrels had been buried with it . In the district authority ’s letter of DATE it was stated that the domestic waste still remaining in the cleaned - up western area would be removed once the decision had been taken on cleaning up the entire site . Thus , it has not been made out that the western part of the site is free of any dangerous waste nor has the argument been refuted that further tipping of permissible waste , on top of the waste already on the site , must be stopped precisely for the purpose of removing that existing waste .", "For these reasons and because , as set out in greater detail above , no further dumping of waste on the aforesaid site should be allowed - because there should be no refuse tip there at all and clearing - up work is still pending - it was not necessary for a ‘ final cleaning - up ORG to be in existence , as the appellant maintained , before further tipping under the licence could be stopped ( by revocation of the licence ) . Nor is a cleaning - up programme thereby pre - empted ; such a programme may very well make special licences necessary ; and even a partial continuation of the current tipping operations until a cleaning - up project is embarked on could not on that account be regarded as justifiable .", "The appellant also considered the weighing of interests to have been inadequate and to have produced the wrong result ; this applied , on the one hand , to those municipalities which would in future be deprived of their facilities for dumping refuse , and , on the other , to the appellant , who would be financially ruined . As regards the aforementioned municipalities , the appellant can not legally represent their interests inasmuch as they are the interests of third parties , and it is moreover clear that the danger posed by the dumped waste affects a much larger number of people , as is apparent from the fact that it is widely known that , owing to its size , the ORG basin serves as a reservoir for drinking - water . The same considerations of public interest are valid with regard to the economic interests of an individual ; the respondent authority did not , as the appellant maintained , disregard the relevant considerations , since in the decision appealed against it said , among other things , that in the case in issue ‘ the public interest in ensuring the supply of drinking - water outweighs the economic interest in continuing the operation of the tip’ . It is equally untrue that the question of blame for the dumping of prohibited waste had a bearing on the revocation , as the revocation concerned the licence and thus the operation of the tip as permitted by that licence up to then .", "The appellant also complains that he was not told the name of the hydraulic engineer who was officially appointed as an expert when his opinion was made known in the respondent authority ’s communication ( Vorhalt ) of CARDINAL DATE . The appellant , however , did not contradict the comment in the decision appealed against that his lawyer had been informed of the expert ’s name during an inspection of the entire file on DATE . As the appellant was familiar with the ‘ original’ of the opinion concerned ( it is referred to in the appeal ) , he must also have been aware of the exact date of the opinion , which was not given in the respondent authority ’s communication . The appellant further criticised the same expert on the ground that his opinion contained no ‘ findings of CARDINAL , a matter to which reference had already been made in the reply to the authority ’s communication . The way in which this point was dealt with in the impugned decision has been set out in the recital of facts . The technical opinion submitted in the appeal proceedings was an expert assessment of the same facts as those on which the first - instance authority had based its decision ; the technical assessment in the appeal proceedings was intended - in view of the appellant ’s appeal - precisely to throw light on whether the factual situation ( which was essentially identical both at first instance and on appeal ) should lead to the legal characterisation given it by the Governor ; it was not a question of assessing changed or substantially supplemented facts . For this reason it was unnecessary for the expert appointed by the respondent authority himself to set out afresh the facts to be taken as a basis . In a case such as the present one there can be no question of the facts on which the expert opinion was based not being known or of a further special reference being necessary to how they came about . By ‘ third - party ORG ) - a term used several times in the expert report - is usually understood , as can easily be inferred from the context , documents that have not been drawn up by the authority ( in this instance the respondent authority ) itself ; since the questions being dealt with always related to the refuse tip concerned , it is clear that what was meant were the water - rights documents of other authorities than the respondent authority which related to the tipping site . As to the appellant ’s specific criticism to the effect that the expert did not make clear what he meant by ‘ the abuses ORG , it should be noted that immediately after that passage there follows a more detailed explanation , in particular through the reference to failures to comply with the decision of DATE and condition CARDINAL of the decision of DATE , by which is meant the occurrences which led to the revocation by the Governor on CARDINAL DATE of the licence to dump distillation residues . The entire comment relating to this has little bearing on the revocation , however , because it was made by the expert only in connection with his general remarks on the need for precise definition of waste if there was to be any effective control of what was dumped . A separate reply to the question - posed in its observations in reply to the respondent authority ’s communication and repeated in the present appeal - whether account had been taken of the fact that in the eastern part of the tip there was a compressed mass of domestic refuse QUANTITY thick on the floor of the site does not seem to the ORG to be of decisive importance with regard to the revocation stopping future tipping in view of the fact that - as set out in greater detail in the present appeal - it can ‘ now ORG be assumed that ‘ under a CARDINAL to CARDINAL-metre - thick layer of highly compressed domestic refuse QUANTITY of , in all probability , unauthorised dangerous solvents have been dumped there’ and that the area must be cleaned up - which precludes all further tipping .", "The appellant complained that further details about the significance of the ORG basin for the water supply were lacking in the expert report and considered the reference it contained to the ‘ expert opinions in the third - party documents’ and the ‘ specialist literature’ to be insufficient . Attention need only be drawn in the first place to the regulations issued by the respondent authority as early as DATE ( ORG - Bundesgesetzblatt - no . CARDINAL ) , which define the groundwater conservation area on whose periphery the refuse tip is situated . Furthermore - in response to the appellant ’s criticism - reference is rightly made in the impugned decision to the fact that the importance of the area was well known . ORG ( GPE ) survey report of CARDINAL DATE , according to which a groundwater sample taken on DATE had shown , among other things , that the chlorinated hydrocarbon content had further fallen , had no influence on the expert opinion in this context - this is confirmed in a note by the expert . In this connection , it must be borne in mind that the measurement was based on only a single sample and was merely ‘ better’ than one from an earlier sample . Even the appellant does not infer from it that the dangerous eastern part of the site is thereby shown to be free of danger ; if the licence continued in force , further tipping could not , in the expert ’s view , be regarded as conducive to further improvement in the quality of the groundwater . The appellant ’s objection that there was no water seepage through an open ‘ compressed , MONEY layer of domestic refuse is impossible to understand . Since this waste was alleged to exist in the eastern part of the tip , it was on that account alone not unreasonable to prevent further tipping in accordance with the licence by revoking that licence , given the need - mentioned even by the appellant - for a cleaning up of the site . It may therefore be concluded that in this respect the alleged material defects in the expert opinion are non - existent .", "The appellant is also wrong to maintain that the licence should only have been revoked after special appeal proceedings in which the appeal authority would have had to make its own investigation of the facts . The facts which the Governor took as a basis were set out in detail in the decision at first instance . The alleged defects were gone into in the appeal proceedings or have now been asserted in the present appeal . In both instances , however , the appellant partly relied on facts that were irrelevant to the issue of the revocation .", "Nor does the ORG agree with the appellant ’s submission that the technical expert ’s opinion in the initial appeal proceedings was defective because it contained legal arguments . In the section ‘ Definition of waste , control of ORG there is firstly merely a discussion of stipulations in the revoked decision [ to grant a licence ] and then a mention of the applicability of LAW in connection with technical observations concerning water contaminants , with a reservation ( ‘ ... would have to be checked by the water - rights authority ... ’ ) ; the question whether revocation was absolutely essential or whether defects DATE ( CARDINAL ) of LAW DATE could be remedied is dealt with from an exclusively technical point of view ; the closing remark on the subject is at all events inaccurately reproduced in the appeal inasmuch as the expert endorsed the revocation in the light not of legal but of economic requirements . Contrary to what the appellant maintained , there was no pre - emption of the legal assessment to be made by the respondent authority .", "The appellant further complained that the respondent authority did not , as requested , seek further expert opinions . Reference is made in the appeal to possible alternatives to revocation and to an opinion of DATE by the hydraulic engineer officially appointed as an expert by the Governor . The appellant inferred from this expert opinion that approval of measures he had planned would have meant that the revocation could have been avoided ; in that opinion , however , it was suggested - on the assumption of ‘ dangers which , if the principle that prevention is better than cure is ORG , ruled out ‘ further ORG ( and it was stated that even tipping of domestic refuse ‘ ORG increased the danger ‘ significantly in quantitative terms’ ) and on the basis of the facts - that ‘ the question of revoking the licence granted by decision of the Governor , ON DATE ( i.e. the decision of DATE ) , should be looked into , ‘ as important assumptions , on which the issuing of the licence [ had ] been based’ had proved to be false . The expert opinion cited , which points in exactly the direction that was subsequently - in the last instance by the respondent authority - taken , was therefore an unsuitable basis for obtaining , as requested , further expert reports . Even if in the same context reference is made in the appeal to the expert report submitted in the water - rights proceedings of CARDINAL DATE in support of the view that the ‘ re - storage variant’ ( final disposal of the ‘ eastern ORG in the western part of the tip ) , which the appellant had suggested as an alternative to revoking the licence , was ‘ technically PERSON , little is gained - particularly in view of the many discussions that , according to the administrative documents , had already taken place - in the way of showing that the additional investigations that were held to be unnecessary in the impugned decision are in fact needed .", "Lastly , the ORG can not accept the appellant ’s submission that an oral hearing should have been held for the specific purpose of considering the question of a revocation ; on the one hand , no provision is made for a hearing for this purpose in the law , as the appellant himself concedes , and , on the other , issues relating to a cleaning up of the tip were discussed from a large variety of angles , most recently in the proceedings of CARDINAL DATE which preceded the revocation by the first - instance authority , and for this reason it has not been shown that ‘ the facts before the appellant authority [ were ] so inadequate that the holding or reholding of an oral hearing’ should have been regarded as ‘ unavoidable’ ( LAW ( CARDINAL ) and ( CARDINAL ) of LAW DATE ) .", "The appellant has consequently not succeeded in showing that the licence was revoked on grounds that were not objective and thus unlawfully .", "As the appeal is consequently unfounded , it must be dismissed pursuant to section DATE ( CARDINAL ) of LAW .", "The requested hearing was dispensed with under LAW ( CARDINAL ) ( CARDINAL ) of LAW .", "... \"", "Article CARDINAL para . CARDINAL of LAW provides :", "\" Hearings in civil and criminal cases by the trial court shall be oral and public . Exceptions may be prescribed by law . \"", "ORG By virtue of LAW , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful .", "ORG Pursuant to section CARDINAL of LAW , 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 ) ( CARDINAL ) and CARDINAL ( CARDINAL ) ) .", "Section CARDINAL ( CARDINAL ) of the same LAW reads as follows :", "\" In so far as ORG does not find any unlawfulness deriving from the respondent authority ’s lack of jurisdiction or from breaches of procedural rules ( section DATE ( CARDINAL ) , paragraphs CARDINAL and CARDINAL ) ... , it must examine the contested decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to CARDINAL of the parties might be decisive for ruling on [ CARDINAL of these complaints ] ... , it must hear the parties on this point and adjourn the proceedings if necessary . \"", "Section CARDINAL ( CARDINAL ) states that , save as otherwise provided , decisions of the ORG shall either dismiss a complaint as ill - founded or quash the contested decision .", "ORG By virtue of LAW ( CARDINAL ) ,", "\" The Administrative Court shall quash the impugned decision if it is unlawful", "by reason of its content , [ or ]", "because the respondent authority lacked jurisdiction , [ or ]", "on account of a breach of procedural rules , in that", "( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or", "( b ) the facts require further investigation on an important point , or", "( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . \"", "Under section CARDINAL ( CARDINAL ) of LAW , if the court quashes the challenged decision , \" the administrative authorities are under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ( PERSON ) \" .", "Section CARDINAL ( CARDINAL ) of LAW provides :", "\" 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 . \"", "ORG Under LAW para . CARDINAL of LAW :", "\" ORG may ... decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The ORG may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . \"" ]

[ "6" ]

[ "6-1" ]

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[ "6" ]

[ "6-1" ]

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[ "NORP The applicant company , ORG , is a ORG registered in GPE . It was represented before ORG , lawyers practising in GPE .", "CARDINAL .", "On DATE civil proceedings in relation to a block of apartments were instituted by ORG against ORG , ORG and ORG as directors and on behalf of ORG and ORG also in his own personal capacity .", "On DATE ORG found in favour of ORG .", "On appeal , on DATE ORG requested ORG to join the applicant company to the proceedings in substitution of ORG , since it had inherited his rights and liabilities . The applicant company and the other defendants objected on the basis that an extraneous person could not be introduced at that stage of the proceedings .", "By an interim decision of CARDINAL DATE ORG ordered the appellants to submit to the registry a copy of the relevant deed of transfer .", "On DATE , following the relevant verification , namely that on CARDINAL DATE ORG , on behalf of the applicant company , had acquired CARDINAL of the apartments at issue in the proceedings , ORG accepted the request for substitution . It noted that the relevant deed of transfer explicitly stated that the vendors ( ORG and his spouse ) were assigning to the purchaser all the litigation rights pertaining to them in the present lawsuit . Consequently , the request was justified .", "The civil proceedings before ORG remained pending throughout the following proceedings .", "On DATE the applicant company instituted constitutional redress proceedings . It complained under LAW that the Court of Appeal decision of DATE had deprived it of a double degree of jurisdiction in the proceedings in question , since it had only become part of the proceedings at the appeal stage . In consequence , it had not been given the opportunity to submit evidence and pleadings or to cross - examine witnesses .", "On DATE ORG ( FAC ) in its constitutional jurisdiction rejected the applicant company 's claims . It held that by means of the contract dated CARDINAL DATE the applicant company had bought the apartment at issue , together with any litigation rights according to law in the relevant proceedings . By means of this deed the applicant company undertook the duties and rights held by its predecessor ORG and therefore it could not be considered a distinct entity . Moreover , this transfer of rights and obligations had taken place when the proceedings were still pending before the first - instance court and , at the time , the applicant company had not made any request for substitution . Thus , ORG found that the claim was manifestly ill - founded , all the more so since LAW did not guarantee a right of appeal against a decision in civil matters . It only stated that where such a right existed it should be in conformity with the guarantees under LAW .", "On DATE the applicant company appealed .", "On DATE ORG upheld the first - instance judgment . It reiterated that the applicant company had fully taken over the rights and duties of its predecessor according to law and that it was the applicant company 's duty to lodge a request to be substituted in the acts of the proceedings . However , as acknowledged by the applicant company , it had chosen not to intervene at that stage as it was not in its interests . It was paradoxical that at that stage the applicant company had chosen not to intervene to protect its interest and that now it was claiming that its right had been breached because it had not been a party to the first - instance proceedings . ORG considered that since the applicant company had been at fault in failing to safeguard its interests at the time , it could not claim a breach of the Convention at this stage . Moreover , in this light , it was evident that the applicant company had been acting in bad faith .", "On DATE the applicant company made a request for a retrial .", "On DATE this request was rejected as null and void , it having been introduced after the DATE time - limit set by law .", "On DATE the applicant company instituted a new set of constitutional redress proceedings . It complained that the procedure adopted by ORG resulting from its interim decisions of DATE and DATE was not provided for in ORG and was therefore “ extra legem ” ( not covered by law ) . In consequence it had breached the applicant company 's right to a fair trial under LAW .", "On DATE ORG ( FAC ) in its constitutional jurisdiction rejected the applicant company 's claims . It expressed doubt as to whether the applicant company could institute these proceedings , since the matters at issue had been or could have been invoked in previous proceedings . However , even on the merits the complaint was manifestly ill - founded . It considered , as had the previous constitutional jurisdictions , that it was for the applicant company to request to be substituted into the proceedings in order to safeguard its interests . Moreover , the procedure adopted by ORG was not new . The transfer of litigation rights as a concept and its application was clearly enshrined in the Maltese Civil Code . The applicant company knew exactly what rights and duties it was purchasing on signing the deed of CARDINAL DATE and was aware of the pending proceedings . In consequence , it could have opted not to purchase the said property if the conditions were not to its liking . Indeed , in the proceedings in question the applicant company could not be considered distinct to its predecessor ORG . Upon the assignment of interests ORG was divested of his litigation rights and no longer had any interest in the case , this juridical interest being now vested in the applicant company as owner of the apartment and the litigation rights pertaining to it . Ultimately , the court considered that the application was an abuse of process both because the impugned legal issues were clearly established in domestic procedure and because the applicant company should have made its complaint in its first set of proceedings and not in a new set of proceedings with the aim of stalling the judicial process . In consequence , finding the application to be frivolous and vexatious , the court ordered the applicant company to pay additional costs .", "On DATE the applicant appealed .", "By a judgment of DATE , ORG dismissed the appeal as null and void , since no appeal lay against judgments declaring applications frivolous and vexatious . Moreover , it was clear that the same appeal was yet another attempt to further stall the proceedings and was a clear abuse of process . The applicant company ' 's actions were undoubtedly and outrightly an abuse of process and the first - instance court had been perfectly justified in declaring the application frivolous and vexatious . It ordered the applicant to pay double the costs due .", "DATE of the Civil Code , LAW of LAW , in so far as relevant , reads as follows :", "“ The assignment or sale of a debt , or of a right or of a cause of action is complete , and the ownership is ipso jure acquired by the assignee as soon as the debt , the right or the cause of action , and the price have been agreed upon , and , except in the case of a right transferable by the delivery of the respective document of title , the deed of assignment is made . ”" ]

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[ "On CARDINAL DATE the applicant , who had qualified as a doctor in GPE in DATE after graduating in medicine from ORG , applied to ORG of the ordre des médecins ( ORG ) for registration as a member of the ordre .", "The département council refused her application on the ground that , although she was NORP , she did not have a NORP medical qualification . The applicant subsequently made CARDINAL unsuccessful applications to the Minister for Health for authorisation under LAW CARDINAL , point ( CARDINAL ) , third paragraph , of LAW .", "On DATE the applicant again applied to the département council , relying on the Government Declarations of CARDINAL DATE on GPE , known as the “ LOC ” , and in particular on LAW between GPE and GPE ( “ the DATE LAW ” ) , of which LAW I provides :", "“ Academic diplomas and qualifications obtained in GPE and GPE under the same conditions as regards curriculum , attendance and examinations shall be automatically valid in both countries . ”", "Her application was rejected on DATE by ORG of the ordre des médecins , which refused to register her .", "The applicant appealed against that decision to FAC Corse regional council of the ordre des médecins . In a decision of CARDINAL DATE the regional council upheld the decision to refuse her registration .", "On DATE the applicant applied to the disciplinary section of ORG ordre des médecins . In a decision of DATE the disciplinary section refused her application on the ground , inter alia , that the terms of LAW Declarations could not by themselves confer the right to practise medicine in GPE on all those who had obtained medical qualifications in GPE after that date , and therefore could not be used in support of an application for registration .", "On DATE the applicant applied to the ORG d'Etat for judicial review of that decision .", "On DATE , at the request of the ORG d'Etat , ORG of ORG submitted observations on the applicant 's application . It stated :", "“ This application calls for the following observations on my part , which , as you requested , concern the provisions of LAW between GPE and GPE , CARDINAL of the declarations making up the ' PERSON . ...", "Nature of the provisions", "The PERSON d'Etat , acting in its judicial capacity , has already had occasion to rule on the nature of the provisions of the ' PERSON . Agreeing with the ORG 's position , it held that the ORG constituted an international treaty ( see the PERSON d'Etat 's PERSON judgment of CARDINAL DATE , PERSON du ORG d'Etat [ Reports of the judgments of the PERSON d'Etat ] , DATE , p. CARDINAL ) .", "Applicability of the provisions", "The Government Declarations of DATE were approved in a referendum held on DATE and were subsequently published in ORG on DATE . They came into force on DATE following an exchange of letters between the President of GPE and the Chairman of the Provisional Executive of ORG .", "Since no measures have been taken to suspend their application or to revise their content , the provisions in question must be regarded as having been in force on DATE and DATE , when the impugned decisions ... were taken .", "However , the reciprocity requirement in LAW can not be regarded as having been satisfied at that time , since those provisions had not been applied by the NORP authorities in respect of applications by NORP nationals with qualifications obtained in GPE . Consequently , they can not be applied to the facts of the present case .", "In the alternative , the scope of the provisions", "LAW ... lays down the principle that NORP and NORP qualifications are automatically equivalent , without there being any need for implementing regulations , provided that the curricula followed are similar .", "Regard being had , in particular , to the precision of their content and the lack of any reference to implementing measures , the provisions in issue appear to be directly effective .", "However , they can not be regarded as establishing an unconditional right for anyone having obtained medical qualifications in GPE to be registered as a member of the NORP ordre des médecins . In assessing candidates for registration as a member of the national ordre , reference should be made to the domestic legislation in force , in particular Articles L. CARDINAL et seq . of LAW , the requirements of which , in the case of foreign nationals , go beyond the production of a NORP medical degree or a recognised equivalent qualification , as candidates must also undergo professional aptitude tests . ”", "After being apprised of those observations , the applicant produced to the ORG d'Etat declarations from various NORP authorities certifying that qualifications obtained in GPE by NORP practitioners were recognised as being automatically valid in GPE .", "In a judgment of DATE the ORG d'Etat , acting in its judicial capacity , did not follow the submissions of the Government Commissioner , PERSON , and dismissed the application in the following terms :", "“ ...", "As regards the argument based on LAW between GPE and GPE :", "...", "LAW DATE provides : ' Treaties or agreements that have been lawfully ratified or approved shall , upon publication , prevail over Acts of ORG , subject , in respect of each agreement or treaty , to its application by the other party . ' It is not for the administrative courts to determine whether and to what extent the manner in which a treaty or agreement is applied by the other party is capable of depriving the instrument 's provisions of the authority conferred on them by LAW . In observations produced on DATE the Minister for ORG stated that the aforementioned provisions of LAW between GPE and GPE could not be regarded as having been in force on the date of the decision complained of , seeing that on that date the reciprocity requirement laid down in LAW had not been satisfied . [ The applicant ] is accordingly not entitled to rely on those provisions .", "As regards the other arguments :", "...", "Although [ the applicant ] submits that the disciplinary section of ORG ordre des médecins infringed ORG DATE on the recognition of diplomas , she has not produced any information from which it may be ascertained whether that argument is well - founded . ORG DATE does not impose on the member GPE any obligations on which [ the applicant ] could rely .", "As [ the applicant ] was unable to show either that she had obtained the NORP qualification for practising as a doctor or any of the qualifications listed in LAW CARDINAL - CARDINAL of LAW or that she had been granted the special ministerial authorisation provided for in LAW ... for persons with foreign qualifications , she could not expect to be registered . Consequently , her argument that the disciplinary section did not take into account her ability and her clinical and academic experience is irrelevant .", "... ”", "In a ministerial order of CARDINAL DATE , published in the NORP ORG on DATE , the applicant was authorised to practise as a doctor in GPE with effect from DATE , LAW L. CARDINAL , point ( CARDINAL ) , third paragraph , of LAW . On the basis of that order , in a decision of DATE , the FAC département council of the ordre des médecins registered the applicant as a member of the ordre . On DATE it recognised the applicant 's abilities as an orthopaedic surgeon by designating her as a doctor specialising in orthopaedic surgery , on the basis of her qualifications and professional experience .", "LAW provides :", "“ Treaties or agreements that have been lawfully ratified or approved shall , upon publication , prevail over Acts of ORG , subject , in respect of each agreement or treaty , to its application by the other party . ”", "Anyone wishing to practise as a doctor in GPE must satisfy certain conditions laid down in Articles L. CARDINAL , PERSON and PERSON of LAW . The CARDINAL fundamental requirements are possession of certain qualifications referred to in Article PERSON or of a special status ( LAW CARDINAL , point ( CARDINAL ) , first and second paragraphs ) , and nationality ( Article L. CARDINAL , point ( CARDINAL ) , second paragraph ) . A third condition is registration as a member of the ordre des médecins ( Article L. CARDINAL , point ( CARDINAL ) ) .", "It follows from those provisions that anyone who has a “ diploma , certificate or other qualification referred to in Article PERSON ” and is a “ NORP national or a national of CARDINAL of the member GPE of ORG , of CARDINAL of the other GPE Parties to the Agreement on ORG , of GPE or of GPE ... ” automatically qualifies for registration as a member of the ordre . LAW CARDINAL - CARDINAL refers to the following qualifications for practising as a doctor : “ either ORG degree of Doctor of Medicine ... or , if the person concerned is a national of a member ORG of ORG or of ORG to the LAW on ORG , a degree , certificate or other medical qualification issued by CARDINAL of those GPE ... ” .", "NORP The Minister for Health may also , after obtaining the opinion of a committee , authorise other persons on an individual basis to practise medicine ( Article L. CARDINAL , point ( CARDINAL ) , third paragraph ) , including NORP nationals who do not possess the qualifications referred to in LAW . The maximum number of persons who may be granted such authorisation is set every year “ by order of the Minister for Health , with the agreement of the aforementioned committee , regard being had to the arrangement under which they intend to practise ” .", "For a long time the ORG d'Etat regarded the interpretation of an international treaty containing ambiguous or unclear provisions as a matter outside its jurisdiction because it deemed such interpretation to be a prerogative act that could not be dissociated from international relations and was not open to challenge in the courts ( a position maintained since PERSON , ORG , judgment of DATE , PERSON du ORG d'Etat , p. CARDINAL ) . When confronted with provisions that it considered insufficiently clear , it relied on the official interpretation given by the Minister for ORG ( see also PERSON , judgment of DATE , PERSON , III , p. CARDINAL , together with the submissions of Mr ORG and the commentary by Mr PERSON ) . Since the PERSON d'Etat 's judgment of DATE in ORG , the practice of referring a preliminary question to the minister has been discontinued and the PERSON d'Etat now interprets international agreements itself ; if it seeks the opinion of the executive , it does not regard itself as bound by it ( see ORG , judgment of CARDINAL DATE , ORG arrêts du ORG d'Etat , p. CARDINAL , and the ORG 's judgment in GPE v. GPE ( DATE , Series A no . CARDINAL-B ) concerning a ruling given before the ORG d'Etat had altered its position ) .", "With regard to the Government Declarations of DATE , the ORG d'Etat ruled in a judgment of CARDINAL DATE ( ORG PERSON , PERSON , p. CARDINAL ) that they should be regarded as constituting an international treaty . It so held after referring a preliminary question to the Minister for ORG as to the interpretation of the Declarations ' scope . The PERSON d'Etat maintained that position even after discontinuing the practice of referring preliminary questions on the interpretation of an international treaty ( see , for example , ORG , judgment of CARDINAL DATE , case no . DATE ) .", "NORP However , the change in position resulting from ORG has not been transposed to the context of applying the reciprocity clause in LAW . The PERSON d'Etat has taken the view that it is not its task to assess whether and to what extent the manner in which a treaty or agreement is applied by the other party is capable of depriving the instrument 's provisions of the authority conferred on them by LAW ( see PERSON and ministre du Budget contre PERSON , CARDINAL DATE , PERSON , p. CARDINAL , judgments of the full court , and ministre du Budget contre PERSON , judgment of CARDINAL DATE , PERSON , p. CARDINAL ) . Those judgments and the one in the instant case are the only ones in which the ORG d'Etat has ruled on the manner in which the reciprocity clause is to be applied and on the continuation of the practice of referring preliminary questions to the Minister for ORG .", "When dealing with issues relating to reciprocity , ORG initially adopted the same solution as that advocated by the ORG d'Etat ( Court of Cassation , ORG , DATE , Males , ORG no . CARDINAL ) . It subsequently held that in the absence of any measures by the government to denounce a treaty or suspend its application ( such as publication in ORG of a memorandum by the Minister for ORG ) , it was not for the courts to review compliance with the condition of reciprocity in inter - State relations as laid down in LAW ( PERSON . civ . ) I , DATE , PERSON , épouse ORG international public DATE , p. CARDINAL ) . That position has been maintained ever since ( PERSON . civ . I , DATE , ordre des avocats près la cour d'appel de Paris contre PERSON , PERSON ( ORG . PERSON . ) no . DATE , and PERSON . civ . I , DATE , PERSON contre PERSON , PERSON . PERSON . no . CARDINAL ) ." ]

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[ "6-1" ]

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[ "The applicant was born in DATE and lives in the town of GPE .", "NORP In DATE the applicant was arrested on suspicion of murder . On DATE the Nesterovskiy ORG of the Kaliningrad Region discontinued the criminal proceedings against the applicant on the charge of acquisition of stolen goods in connection with an act of general amnesty adopted by ORG . The applicant was released .", "On DATE the applicant was arrested and charged with armed robbery and unlawful possession of weapons . By a judgment of CARDINAL DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . On DATE ORG upheld the conviction on the charge of robbery but ordered a new trial on the charge of unlawful possession of weapons . The proceedings were then discontinued because the prosecution dropped the case .", "In relation to the above proceedings , the applicant was detained in GPE remand centre no . CARDINAL/CARDINAL from DATE to DATE , from CARDINAL DATE to DATE , and from DATE to CARDINAL DATE . On DATE the applicant was transferred to colony no . CARDINAL in LOC to serve his prison sentence .", "The applicant provided the following description of the conditions of his detention in the remand centre . During the first period he was held in a cell measuring QUANTITY . The cell was equipped with CARDINAL beds but housed CARDINAL inmates who took turns to sleep . There was constant noise and movement within the cell . The windows were covered with metal blinds blocking access to daylight and fresh air . There was no sink and the water tap was positioned above the toilet pan , which gave off a fetid smell . Inmates were allowed TIME of outdoor exercise per day . The cell was infested with bugs and cockroaches . In support of his description of the conditions the applicant submitted an affidavit by his former cellmate , PERSON , who had been held in the same cell DATE . PERSON stated that the cell measured QUANTITY and had housed CARDINAL persons , while it had had CARDINAL beds .", "During the second and third periods applicant was held in a sixsquare - metre cell that contained CARDINAL - tier bunks and housed CARDINAL inmates . The windows were covered with metal blinds blocking access to natural light and air . There was no ventilation in the cell and in DATE , the temperature peaked at CARDINALºC. In the absence of a sink the water tap was positioned directly above the toilet pan , which was not separated from the rest of the cell . The dining table was QUANTITY away from the toilet . The cell was infested with bugs and cockroaches . The applicant contracted chronic bronchitis . In support of his submissions the applicant produced a written affidavit by his former cellmate , PERSON , who had been held in the same cell from DATE to DATE .", "The applicant also submitted a copy of a letter dated DATE sent by ORG to a PERSON , who was detained in remand centre no . CARDINAL/CARDINAL at the time . As follows from this letter , an inquiry carried out by ORG disclosed that detainees in that remand centre were provided with QUANTITY of space per person in the cells . The inquiry also disclosed unspecified deficiencies in the sanitary installations and medical services in the remand centre .", "The Government affirmed , with reference to a certificate dated CARDINAL DATE issued by the administration of the remand centre , that from DATE to DATE the applicant was held in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL , DATE , DATE , CARDINAL and DATE . These cells measured from CARDINAL to QUANTITY . Between CARDINAL DATE and DATE the applicant was held in cells CARDINAL . CARDINAL , DATE , CARDINAL , DATE , DATE , CARDINAL , CARDINAL , DATE , CARDINAL , DATE , DATE , CARDINAL , DATE , CARDINAL DATE . These cells measured from QUANTITY . The certificate indicated that it was impossible to supply data about the number of detainees in each cell during the relevant periods because the logbooks for DATE had been destroyed . According to a certificate dated DATE , the logbook for DATE was destroyed on the same date in compliance with the DATE storage limit .", "With reference to a number of other certificates issued by the national authorities in DATE , the ORG affirmed as follows . In all cells the applicant had been provided with a bed and bedding . Each cell had a table situated at a suitable distance from the toilet , benches and a tap with running water . Each cell had a toilet with a functional flushing system ; each toilet was separated from the main area by a screen of QUANTITY in height . Ventilation was provided through openings in the windows ; the metal shutters / blinds on the windows did not block the normal flow of air . Each cell also had a functional ventilation system . The shutters / blinds were removed DATE . The cells were properly heated to CARDINAL All the necessary sanitary measures were carried out . The remand centre had CARDINAL courtyards , each measuring QUANTITY . The applicant was allowed a TIME outdoor walk per day . The artificial night light was not strong , but was left on for suicide watch . The applicant was given CARDINAL meals per day . The applicant had access to medical services and was not intentionally placed with anyone suffering from tuberculosis .", "From DATE the applicant served his sentence of imprisonment in a colony in LOC . In DATE and DATE he brought civil proceedings against ORG , claiming compensation for unlawful deprivation of liberty from DATE to DATE and appalling conditions of detention during that period . The case was submitted to ORG of GPE , which indicated remand centre no . CARDINAL/CARDINAL and ORG as co - defendants of ORG .", "NORP By letter of CARDINAL DATE , ORG advised the applicant that a hearing on his claim was listed for DATE and explained his procedural rights to him . As regards the applicant 's participation , the judge wrote :", "“ Civil law does not make a provision for transporting detained convicts to a civil court hearing . Thus , the court has no right to bring you to the hearing because that would breach the detention regulations . You have the right to appoint a representative to take part in the examination of your case ... You may also submit a written statement giving your consent to the case being examined in your absence . ”", "Following complaints by the applicant , who insisted on his right to be present at the hearing , on DATE and DATE the deputy President of ORG reiterated that the refusal to bring him to the hearing had been lawful and that he could make written submissions or appoint a representative .", "On DATE ORG held a hearing . The representative of ORG waived his right to be present and made written submissions . It appears that the representative of the other CARDINAL defendants was present at the hearing . The court considered that the applicant had been afforded an opportunity to appoint a representative and that in any event the written submissions were sufficient . The court held that the applicant 's detention had been lawful because he had been ultimately convicted of a criminal offence . As regards the conditions of detention , ORG held that the applicant had not proved the presence of bugs and cockroaches , that the TIME outdoor exercise allowance was compatible with the detention regulations , and that there was no credible evidence that the applicant had contracted bronchitis . Although the overcrowding of the remand centre was undisputed , ORG found that it had been caused by ( unspecified ) objective factors unrelated to the defendants ' actions .", "The applicant lodged an appeal . He submitted , in particular , that he had been denied the right to take part in the hearing .", "On DATE ORG upheld the judgment , endorsing the reasoning of ORG . It interpreted the applicant 's failure to appoint a representative as a valid and lawful ground for examining the case in his absence .", "In the meantime , the applicant filed another claim against ORG , seeking compensation in respect of pecuniary and non - pecuniary damage incurred through unlawful detention in DATE and DATE and appalling conditions in the remand centre .", "ORG indicated ORG , remand centre no . CARDINAL/CARDINAL and ORG as co - defendants .", "The judge advised the applicant , by the same standard letter , of the hearing date . She indicated that it would take place in his absence because he was a detainee but that he could appoint a representative .", "The administration of the remand centre provided the court with the following information . The cell space of CARDINAL cells amounted to QUANTITY . DATE and DATE the population of the remand centre varied from CARDINAL to CARDINAL detainees .", "On DATE the ORG gave its judgment . It dismissed all the claims , finding that the detention had been lawful because the proceedings had been discontinued not by an acquittal but by an act of general amnesty . It also held that the employees of the detention centre had not been responsible for the overcrowding .", "On DATE ORG upheld the judgment on appeal . The applicant was not present or represented .", "Section CARDINAL of LAW ( Federal Law no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy the sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .", "Order no . CARDINAL issued on DATE by ORG deals with implementation of the “ Remand centre DATE ” programme . The programme is aimed at improving the functioning of remand centres so as to ensure their compliance with the requirements of NORP legislation . It expressly acknowledges the issue of overcrowding in pre - trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem . The programme mentions GPE remand centre no . CARDINAL/CARDINAL as CARDINAL of the detention centres affected . As of DATE , its design capacity was CARDINAL detainees , but it actually housed CARDINAL inmates .", "Article CARDINAL § CARDINAL of LAW of GPE provides that damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor . Pursuant to LAW , ORG agencies and ORG officials shall be liable for damage caused to an individual by their unlawful actions or failure to act . Such damage is to be compensated at the expense of the federal or regional treasury . ORG CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated irrespective of any award for pecuniary damage .", "The Code of Civil Procedure of GPE ( ORG ) provides that individuals may appear before a court in person or act through a representative ( LAW ) . The court may appoint an advocate to represent a defendant whose place of residence is not known ( LAW . LAW ( Law no . CARDINAL-FZ of DATE ) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims concerning damage to health in employment - related disputes ( section CARDINAL § CARDINAL ) . In DATE ORG launched a test project in a number of regions concerning provision of free legal assistance in civil - law matters ( decree no . CARDINAL of CARDINAL DATE ) .", "The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( LAW ) . The LAW does not mention any possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or a defendant .", "On several occasions ORG has examined complaints by detainees whose requests for leave to appear in civil proceedings were refused by the courts . It has consistently declared the complaints inadmissible , finding that the impugned provisions of LAW and LAW did not , as such , restrict the convicted person 's access to court . It has emphasised , nonetheless , that the convicted person should be able to make submissions to the civil court , either through a representative or in any other way provided by law . If necessary , the hearing may be held at the location where the convicted person is serving his or her sentence , or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant 's submissions or carry out any other procedural steps ( decisions no . CARDINAL-O of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE ) .", "Articles DATE and CARDINAL of the ORG provide that the parties can seek the court 's assistance in obtaining evidence . The relevant party should indicate the circumstances impeding the access to such evidence and its relevance to the case , as well as the location such evidence should be collected from . An unjustified failure to comply with the court order can lead to a fine on the person or official in possession of the relevant evidence .", "In a given civil case a civil court can request a court in another location to take specific measures in relation to evidence situated in that location ( LAW ORG ) . Carrying out such a request is mandatory and must be done within DATE of its receipt .", "Under Articles CARDINAL and CARDINAL of the ORG , a court may hold a session outside the courthouse if , for instance , it is necessary to examine evidence which can not be brought to the courthouse .", "Article CARDINAL of the ORG contains a list of situations which may justify a reopening of a finalised case on account of newly - discovered circumstances . By a ruling of CARDINAL DATE ORG indicated that this LAW should be interpreted as , in principle , allowing the launching of a procedure to have a final judgment re - examined on account of newly - discovered circumstances , such as the finding of a violation of LAW in a given case by ORG ." ]

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

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in the city of GPE , GPE region . The respondent Government are represented by PERSON , ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant claimed that during the World War II he had been detained in a NORP concentration camp . By LAW of DATE , former prisoners of NORP concentration camps became entitled to certain social benefits , in particular , to a supplement to their retirement pension . On DATE a special municipal commission ( “ the commission ” ) granted the applicant the pension supplement on this ground .", "On DATE the commission revoked its decision of DATE , referring to the lack of evidence that the applicant in fact had been in a concentration camp , and , thus , had indeed been entitled to the supplement .", "On DATE the commission decided to withhold PERCENT of the applicant ’s retirement pension to cover the sums wrongly paid to him DATE . As a result , according to the respondent Government , DATE the commission withheld from the applicant ’s pension MONEY to compensate for the previous erroneous payments .", "The applicant brought a civil action against the commission seeking restoration of the supplement , recovery of the sums withheld , and compensation for damage .", "On DATE ORG of GPE found in the applicant ’s favour , holding that the retirement pension was the applicant ’s “ possession ” . According to LAW , no one could be deprived of his possession otherwise than by a court decision . Therefore , the deduction of PERCENT from his pension by an administrative decision had been unlawful . The district court also noted that the commission had failed to hear the applicant and witnesses , and to obtain an expert opinion . Finally , the court found that no legal procedure existed to revoke the supplement once granted . The court quashed the decision of DATE ordering the commission to return to the applicant the money deducted from his pension and to resume paying him the supplement .", "The defendant appealed . On DATE ORG delivered a new judgment on the merits . Firstly , ORG found that the decision to revoke the supplement had been “ well - founded ” . The ORG further stated that , on the other hand , the money paid in excess could be deducted from the retirement pension only in case of an abuse by the pensioner , which was not the case . The court found that the deduction from the applicant ’s pension had been unlawful .", "In the operative part of the judgement ORG quashed the decision of DATE , confirming that the applicant was no longer entitled to receive the supplement . ORG also held that no deduction could be made from the applicant ’s pension . However , the ORG did not order , at least explicitly , the reimbursement of the sum withheld DATE .", "As follows from the Government ’s submissions , pursuant to the decision of DATE the money withheld was returned to the applicant . Thus , on DATE the local Commission on ORG pensions decided to return to the applicant MONEY ( protocol of the deliberations of the Commission no . CARDINAL ) . On DATE the commission decided to return to the applicant the remaining of the sum withheld , namely MONEY ( protocol of the deliberations no . CARDINAL ) . Those amounts were transferred to the applicant in DATE respectively . The applicant did not contest these facts ." ]

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[ "On DATE ORG ( ORG PERSON ) , submitting a bill of exchange payable to bearer which required the applicant to pay on demand CARDINAL,CARDINAL,CARDINAL,CARDINAL old NORP zlotys ( PLZ ) , asked ORG ( Sąd Rejonowy ) to issue an order for payment against him .", "On DATE the court granted the plaintiff ’s request and ruled that the applicant was to pay the sum in question within DATE from the date of service of the order or , alternatively , within the same time - limit , to lodge an appeal against the said order .", "On DATE the applicant lodged an appeal with ORG , submitting that the order was premature since the bill of exchange had been endorsed by him to secure the payment of a loan which , according to the terms of the relevant agreement , was to have been paid off on DATE . He also requested the court to stay the enforcement of the order .", "On DATE the plaintiff asked the court to issue a writ of execution in respect of the order of DATE . On DATE the court issued a provisional writ of execution ( i.e. under which assets , by way of security , could be attached to protect claims ) . The final writ of execution was made on CARDINAL DATE . Subsequently , on an unknown date , the plaintiff asked the court to issue CARDINAL further such writs , maintaining that it had to institute enforcement proceedings against the applicant before several different courts because his real and personal property was situated in various towns .", "On DATE the case was referred to ORG ( Sąd Wojewódzki ) which , under the rules of civil procedure governing jurisdiction , was competent to deal with the case in ordinary civil proceedings .", "On DATE ORG was taken over by ORG ) and , from DATE , ORG replaced it as a plaintiff in the proceedings .", "Later , from DATE to CARDINAL DATE the proceedings were stayed at the parties’ joint request .", "On DATE ORG issued one writ of execution and dismissed the remainder of the plaintiff ’s application . On DATE , on the applicant ’s appeal , ORG ( Sąd Apelacyjny ) upheld the first - instance decision . On DATE the case - file was transmitted to ORG .", "On DATE ORG ordered that evidence be obtained from an expert in banking accountancy . The expert submitted his report to the court on DATE . After having served copies of the report on the parties , the court listed a hearing for DATE .", "At that hearing , on the applicant ’s request , the court stayed the proceedings . The applicant produced documents showing that , in the meantime , on DATE , his wife had sued both parties to the proceedings in ORG . She was seeking the annulment of the relevant loan agreement . The plaintiff bank first unsuccessfully opposed the application for a stay and then appealed against the decision staying the proceedings . The appeal was rejected on DATE .", "Meanwhile , on DATE , the applicant asked the court to lift the stay , in his words , “ immediately ” . He maintained that the claim for payment against him could be determined without a prior ruling on whether or not the loan agreement had validly been concluded .", "On DATE the applicant asked ORG to resume the proceedings . On DATE the court refused to lift the stay because it considered that the determination of the applicant ’s case depended on the outcome of the proceedings relating to the annulment of the loan agreement and that there was , therefore , a sufficient basis for the stay , as defined by LAW ( CARDINAL ) of LAW . The applicant did not contest this decision .", "During the stay of the proceedings the trial court made several procedural orders . It stayed the enforcement of the order of payment ( by a decision of CARDINAL DATE which was upheld on appeal on DATE ) . It dealt with the applicant ’s request for the order securing the claim to be amended and rendered in that respect a decision on DATE . It also ruled on CARDINAL plaintiff ’s requests for the decision staying the enforcement of the order of payment to be quashed ( giving decisions of DATE and CARDINAL DATE respectively ) .", "On DATE the applicant informed the court that the proceedings concerning his wife ’s claim for declaring the loan agreement null and void had been terminated . He asked the court to resume the proceedings and to fix a hearing date .", "The court listed a hearing for DATE . On DATE it gave judgment and awarded the plaintiff PERSON new LANGUAGE zlotys ( ORG ) . It also awarded the costs of the proceedings against the applicant . Both parties appealed .", "On DATE the ORG rejected the plaintiff ’s appeal as it considered that it had no legal interest in challenging the judgment granting the relief requested . It further dismissed the applicant ’s appeal .", "On DATE the applicant filed a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) . According to information obtained by the ORG from the registry of ORG of ORG , the applicant ’s case was registered under file no . II CKN CARDINAL/CARDINAL and his cassation appeal was dismissed on DATE .", "On DATE , acting under the provisional writ of execution of DATE ( see also paragraph CARDINAL above ) and on a request by the creditor , i.e. ORG , ORG ( PERSON ) made an order attaching the applicant ’s shares in ORG ( ORG ) and cash ( an unknown sum ) deposited in ORG of ORG ( ORG Banku ORG ) , by way of security for the creditor ’s claim for payment of ORG CARDINAL,CARDINAL,CARDINAL,CARDINAL pending in ORG . On DATE the applicant lodged a complaint against the actions taken by the bailiff ( skarga na czynności komornika ) , relying on LAW . On DATE the court dismissed the applicant ’s complaint .", "On DATE , acting under the final writ of execution of CARDINAL DATE ( see also paragraph CARDINAL above ) and on a request by ORG , ORG instituted enforcement proceedings against the applicant , with a view to selling the assets attached on DATE . According to the applicant , the total value of the attached assets was MONEY , that is to say , MONEY ( ORG ) .", "On DATE the applicant , again relying on LAW , made the second complaint against the actions taken by the bailiff in the enforcement proceedings to ORG . He submitted that those actions had been incorrect and unlawful since the bailiff had enforced the order for payment of DATE against matrimonial property , whereas the final writ of execution had been issued against the applicant alone . Moreover , the civil claim in question had not yet been determined as the relevant proceedings were pending before ORG because he had appealed against the order for payment of DATE . He , therefore , asked the court to quash the attachment and to stay the enforcement proceedings .", "Shortly afterwards , the applicant ’s case was registered in ORG under file no . ORG CARDINAL/CARDINAL .", "On DATE the court decided that information be obtained as to whether the applicant had appealed against the order for payment of DATE and whether in the relevant proceedings any decision staying the enforcement of that order had been made .", "On DATE the court ordered that the applicant ’s case be joined with the case registered under file no . II Co CARDINAL/CARDINAL ( the latter case concerned the creditor ’s ( ORG ) request for the applicant ’s attached shares to be sold on ORG ) and assigned to the judge - rapporteur dealing with that case . On DATE the court quashed its previous order and decided that the joinder of the cases be reversed , that is , that the case no . II Co CARDINAL/CARDINAL be joined with the applicant ’s case and assigned to the judge - rapporteur dealing with the applicant ’s case . On CARDINAL DATE the cases were assigned to another judge because the previously appointed rapporteur had resigned .", "On DATE ORG , sitting in camera , rejected the applicant ’s complaint of DATE . The court considered that the applicant was again challenging the actions taken by the bailiff on CARDINAL DATE , in particular the attachment order made by the bailiff on DATE . The ORG went on to find that the complaint against the attachment order had already been examined , and finally dismissed , by the same court on DATE . Moreover , in the court ’s opinion , the applicant had clearly lodged his second complaint out of the DATE time - limit prescribed by LAW . In any event , the ORG added , the matter had finally been adjudicated on DATE and , according to the principle of res iudicata , the second complaint had to be rejected on formal grounds . A copy of that decision was served on the applicant on DATE .", "On DATE the applicant appealed to ORG , submitting that the court of first instance had manifestly confused his CARDINAL complaints : the complaint of CARDINAL DATE against the attachment of his shares ordered by way of security and that of DATE against the actions taken by the bailiff ( i.e. those taken with a view to selling the attached shares ) on the basis of the final writ of execution in the subsequent enforcement proceedings . Later , a copy of the applicant ’s appeal was served on the creditor , which lodged a reply to the appeal on CARDINAL DATE .", "On DATE ORG , sitting in camera , quashed the contested decision and remitted the case to ORG . The appellate court acknowledged that the lower court had failed to note that the applicant had filed CARDINAL complaints , complaints which concerned CARDINAL evidently separate actions taken by the bailiff .", "On DATE ORG , relying on the principle of res iudicata , refused to examine the complaint in so far as it amounted to the objection to the attachment order of DATE . It dismissed the remainder of the complaint , finding that the arguments raised by the applicant , in particular those concerning the enforcement of the order for payment while the civil dispute over the same claim was pending , had to be rejected . It found that the bailiff ’s actions had been correct and lawful as he had acted under the valid writ of execution and the means of enforcement applied by him had a legal basis .", "On DATE , on the applicant ’s appeal , ORG upheld the first - instance decision .", "Pursuant to LAW , an order for payment , if issued on the basis of a bill of exchange , is enforceable notwithstanding that a defendant has appealed against it , and that proceedings relating to the final determination of the claim arising from the endorsement of the bill are still pending .", "A district court is competent to issue an order for payment ; however , on an appeal by a defendant , the case may subsequently be referred to a regional court if , in view of the value of the claim , that court is competent to deal with the case in ordinary civil proceedings .", "Under LAW seq . of LAW a debtor may lodge a complaint against any action taken by a bailiff in enforcement proceedings . He may , in particular , seek a ruling as to whether the bailiff ’s actions were correct , i.e. taken in accordance with a writ of execution , and lawful , i.e. whether the means of enforcement applied in a given case were provided by law . Such a complaint is examined by a district court under the provisions of Volume II of LAW relating to enforcement proceedings .", "Under LAW seq . of LAW the court may stay civil proceedings either ex officio or at a party ’s request .", "LAW ) provides :", "“ CARDINAL . The court shall ex officio stay the proceedings :", "( CARDINAL ) if the determination of the case depends on the outcome of other pending civil proceedings ; ”", "LAW provides , in so far as relevant :", "“ CARDINAL . The court shall ex officio resume the proceedings if the reason for staying them no longer exists , in particular if :", "...", "( CARDINAL ) a final decision has been given in the proceedings on whose outcome the determination of the case depends , however , if circumstances so require , the court may resume the proceedings before [ such a final decision is given ] . ”" ]

[ "6" ]

[ "6-1" ]

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[ "NORP The applicant , Mr PERSON , is a NORP citizen of NORP ethnic origin , who was born in DATE and lives in PERSON . He is represented before the ORG by Mr T. Sabljar , a lawyer practising in GPE .", "ORG ( “ the Government ” ) are represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant , who was serving in ORG at the time , was involved in a quarrel in the GPE military barracks in GPE with CARDINAL other recruits , Mr GPE and Mr GPE The quarrel was witnessed by a number of other soldiers . At some point during the quarrel the applicant said to GPE and GPE :", "“ I fuck your baptised mother ! ”", "It would appear that shortly afterwards corporal PERSON summoned the applicant through a duty officer to report to him concerning the incident . As the applicant refused to do so , corporal PERSON went to look for him and , after having found him , asked why he had not reported to him as instructed . The applicant replied :", "“ This is not my ORG , I am not its national , I do n’t recognise [ respect ] you , your rank or ORG ! ”", "The applicant repeated this statement in the presence of other officers during a subsequent conversation with the battalion commander , first lieutenant ORG Asked whether he intended to offend someone ’s religion and ethnic origin he replied :", "“ Yes ! I fuck your baptised mother ! I fuck your PERSON mother ! You all originated from NORP ! ”", "On DATE the GPE State Attorney ’s ORG ( GPE državno odvjetništvo u PERSON ) indicted the applicant before ORG ( PERSON ) , accusing him of the criminal offence of tarnishing the reputation of GPE , defined in LAW .", "At a hearing held on DATE the applicant admitted making the above statements , expressed remorse and stated that he considered himself a national of GPE , that he recognised it as his ORG , and therefore that he also recognised its ORG .", "On DATE , ORG delivered a judgment whereby it found the applicant guilty as charged and sentenced him to CARDINAL months’ imprisonment . The relevant part of that judgment reads as follows :", "“ The [ value ] protected by [ proscribing ] this criminal offence is the reputation of GPE [ and ] its dignity , symbolised in the objects [ listed in the definition of the offence ] . The acts described [ therein ] , that is , exposure to ridicule , contempt and severe disdain , indicate that the law [ LAW ] requires grave denigration , malice , hatred and demonstrative disrespect for those values and symbols , such that they would lose their dignity in the eyes of citizens and the world .", "...", "The [ court ] finds it proven ... that the accused committed the criminal offence defined in LAW because he publicly exposed GPE and the NORP people to contempt and severe disdain by saying publicly , ... , in the presence of a large number of people that ... this State ( GPE ) was not his ORG , that he did not recognise it , that he was not its national , that he did not recognise ORG – which is , parenthetically , the foundation of the constitutional integrity and territorial existence of any legally organised state such as GPE – that he did not recognise the legitimacy of his superior officer in ORG ... and his rank , which [ statements ] were accompanied by [ further statements ] which offend religious and national affiliation , such as those in which he said that he fucks their baptised mothers , PERSON mothers and that they all ( NORP , NORP people ) originated from NORP . Those [ statements ] indicate severe denigration , malice , hatred and demonstrative disrespect for the values and symbols [ listed in the definition of the offence ] , whereby those values and symbols of GPE , by being treated in such a way in front of citizens ( members of ORG ) , lost their dignity .", "[ When deciding on a penalty , the court takes into account ] the fact that the accused admitted committing the offence , the fact that he [ does not have a criminal record ] , his young age and correct conduct before the court , whereas , as an aggravating circumstance , it takes into account the manner in which the offence was committed , that is , a high level of perseverance and contempt in making the offending statements .", "Taking into account all the above circumstances ... [ the court ] sentences the accused to CARDINAL months’ imprisonment , considering that the purpose of the punishment may , given the type and gravity of the criminal offence , be achieved only by a prison sentence . This prison sentence will , in the opinion of [ this court ] , primarily achieve the purpose of individual prevention , so that the accused will not commit this or a similar offence [ in the future ] . [ It will also meet ] the purpose of general prevention by deterring others from committing this or similar offences . ”", "The applicant appealed . He argued that his statements could have been qualified as the criminal offence of insult against recruits GPE and GPE and/or a disciplinary offence of disobedience to his superior officers , rather than the criminal offence of tarnishing the reputation of GPE . Furthermore , his conviction for that criminal offence interfered with his freedom of expression because he had been entitled to express his opinion that NORP had originated from NORP who had converted to NORP .", "On DATE ORG ( PERSON ) upheld the first - instance judgment in part and reversed it in part . It upheld the lower court ’s finding that the applicant was guilty of the offence in question . However , it overturned the sentence imposed and replaced it with a suspended sentence of CARDINAL months’ imprisonment with a DATE probation period . The relevant part of the judgment reads as follows :", "“ The argument of the accused that ... the operative part of the contested judgment is incomprehensible and self - contradictory because the facts [ of the case ] do not correspond to the legal definition of the criminal offence [ for which he has been convicted ] is unfounded . In explaining this argument , the accused ... claims that cursing GPE and GPE ’s baptised mothers constitutes the criminal offence of insult defined in LAW , that by stating that he did not recognise ORG , ORG and its officers [ he had only ] exposed himself to ridicule and contempt and not GPE , its ORG or its officers , and that by saying that all NORP had originated from NORP he [ was merely expressing ] CARDINAL possible theory on the ethnogenesis of NORP , which [ he ] has the right to [ do ] on the basis of LAW , which , in [ its ] LAW , guarantees the freedom of thought and freedom of expression .", "Contrary to the foregoing , nothing in the appeal of the accused suggests that the operative part of the contested judgment is incomprehensible or contradictory , as the appellant argues ...", "...", "The first - instance court ... did not give sufficient weight to mitigating circumstances , that is , to the fact that the accused [ does not have a criminal record ] , to his young age and correct conduct before the court , which was also demonstrated by his admission that he committed the ... offence and ... clearly expressed remorse for doing so , which suggests that the criminal offence perpetrated by the accused is a result of the impudence of youngsters . ORG ... therefore considers that in this particular case the purpose of the punishment may be achieved without imposing a prison sentence . For these reasons , the appeal of the accused has to be allowed in part [ as regards ] the penalty [ imposed ] and the first - instance judgment [ must accordingly be ] reversed ... ”", "NORP The applicant subsequently lodged a constitutional complaint alleging , inter alia , a violation of his freedom of expression , guaranteed by LAW .", "On DATE ORG ( Ustavni sud PERSON ) declared the applicant ’s complaint inadmissible . It found that even though the applicant relied on the relevant Articles of the LAW in his constitutional complaint , he had not substantiated his complaint by any constitutional - law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts . Therefore , ORG had been unable to examine the merits of his constitutional complaint . ORG decision was served on the applicant ’s representative on CARDINAL DATE .", "The relevant parts of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) ) provide as follows :", "“ ( CARDINAL ) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others , the legal order , public morals or health .", "( CARDINAL ) Every restriction of rights and freedoms should be proportionate to the nature of the necessity for the restriction in each individual case . ”", "“ ( CARDINAL ) Freedom of thought and expression shall be guaranteed .", "( CARDINAL ) Freedom of expression shall include in particular freedom of the press and other media , freedom of speech and public expression , and free establishment of all media institutions .", "( CARDINAL ) Censorship shall be forbidden . Journalists shall have the right to freedom of reporting and access to information .", "( CARDINAL ) The right to correction shall be guaranteed to anyone whose rights guaranteed by the LAW or a statute were breached by public information . ”", "Article CARDINAL of LAW ( PERSON , ORG no . CARDINAL with subsequent amendments ) reads as follows :", "“ Anyone who publicly exposes GPE , its flag , coat of arms or [ national ] anthem , the NORP people , or ... national ... minorities living in GPE to ridicule , contempt or severe disdain , shall be punished by imprisonment from DATE . ”" ]

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[ "The applicants are PERSON , an NORP citizen born in DATE , and PERSON , a GPE national born in DATE , husband and wife , and their children , PERSON , PERSON , PERSON and PERSON , GPE citizens born in DATE respectively . They were all resident in GPE .", "NORP In DATE the applicants became tenants of a house owned by ORG at CARDINAL FAC . The property had been vacant for DATE and the previous tenant had been PERSON or PERSON GPE .", "Meanwhile a series of armed robberies was carried out by a number of armed males : on DATE , DATE , and CARDINAL DATE . On DATE , the police arrested a certain GPE , later convicted for the robbery . They also arrested a man who arrived during the arrest . He gave his name as PERSON but subsequent investigation revealed that he was PERSON , son of PERSON GPE . He was not charged and was released . The police were tasked with investigating , and arresting , any further members of the gang and recovering the money from the robberies . The information which came into their possession indicated that ORG had often given CARDINAL FAC as his address , that saliva taken from a scarf in a car abandoned after a robbery matched that of ORG and that PERSON was still on the voters’ register as residing at that address .", "On DATE Detective Constable PERSON went before a Justice of the Peace and applied on oath for a warrant to search CARDINAL FAC for cash stolen during the robberies . He swore on oath that he had reasonable cause to believe that such stolen cash was in the possession of the occupier of the property . A search warrant was issued permitting a search of the LOC for the cash .", "On DATE , at TIME , the police officers gathered at police headquarters . It was intended to search CARDINAL properties . ORG and CARDINAL other officers were detailed to go to CARDINAL FAC . They were briefed that PERSON was linked to the robberies and given a photograph of him . They knew that the robberies had involved the use of firearms . They were instructed to obtain forcible entry at TIME to coincide with the other searches .", "NORP The police team used a metal ram to make a hole in the door . They experienced some difficulty as a previous tenant had reinforced the door .", "The noise of the battering ram awoke and frightened the applicants . The first applicant came down the stairs and was told by the police who they were and to open the door . The first applicant complied and the sergeant entered and showed his warrant card and explained that he was looking for PERSON . A cursory examination of the house took place to verify that no one save the applicants was present . The sergeant apologised to the first and second applicants and arranged for repairs to be made to the front door . The police left at TIME", "The applicants brought proceedings against the Chief Constable of Merseyside Police for the tort of maliciously procuring a search warrant , unlawful entry and false imprisonment . They alleged that they had been caused terror , distress and psychiatric harm . Medical reports indicated that the applicants were suffering from varying degrees of post traumatic stress disorder .", "On DATE the ORG Judge rejected the ORG claims . He made a number of findings of fact or inferences :", "– that the police made enquiries prior to the search with utility companies and ORG about CARDINAL FAC and that the rough police notes of these enquiries had been destroyed or mislaid from which he drew the adverse inference that such checks revealed that PERSON was no longer living there but that the applicants were ;", "– that the police considered covert surveillance of the property but decided that this was not advisable as there were sophisticated criminals living in the area who were skilled at spotting covert police operations ;", "– that ORG had reasonable grounds , following his briefing , for believing that a person wanted for robbery was to be found on the LOC and that he had not been informed that the applicants were now living there .", "The judge found on the facts that the police , who were investigating serious and violent offences , had not acted with reckless indifference to the lawfulness of their acts , which element was necessary for the tort of maliciously procuring a search warrant . He held that the entry was made subject to a lawful search warrant and also under the powers of LAW of ORG , which allowed entry without warrant where intending to arrest a person for an arrestable offence . He found that the method of forcible entry was justified as the police had foremost in their minds the potential danger from the use of firearms by the suspect robber and in particular that the sergeant had no cause to suspect that innocent people were the only ones on the LOC . He found that once on the LOC there was no indication that the police had physically detained the applicants or ordered them to remain in CARDINAL place . He noted that the sergeant had speedily realised the mistake , apologised and shown compassion for the applicants’ plight , in particular by not lengthening the ordeal .", "He concluded :", "“ ... It will be difficult for the claimants to accept that their innocent occupation of their property was devastated by the events , albeit of TIME , which occurred on DATE . Any system of justice must balance competing interests and this is a classic case of competing interests being balanced . On the one hand , the need to bring to justice violent criminals , on the other the need to try and preserve the sanctity and integrity of a law - abiding family ’s home ... but in every case of competing interests , the scales will have to come down on CARDINAL side or the other . In my judgment the scales come down in favour of the defendants and all claims are dismissed . ”", "The applicants appealed , alleging , inter alia , that the judge had failed to consider properly whether the police had reasonable and probable cause to apply for a warrant to search for stolen cash at CARDINAL FAC .", "On DATE ORG dismissed the applicants’ appeal . While Lord Justice PERSON found that if proper enquiries had been made and the results properly reported there would have been no reasonable or probable cause to apply for a search warrant , he held that the requirement of malice was not made out as there was no evidence of any improper motive ( incompetence or negligence did not suffice ) . He further held that the entry , being made under a warrant which was on the face of it lawful , was itself lawful and that while those responsible for sending PERSON and his team to the address had been mistaken that did not deprive them of legal protection . Lord Justice Ward commented that the shoddy detective work did not justify a finding in the police ’s favour and that the case caused him concern . However , notwithstanding his anxious consideration and sympathy for the family , he stated :", "“ That an NORP ’s home is said to be his castle reveals an important public interest , but there is another public interest in the detection of crime and the bringing to justice of those who commit it . These interests are in conflict in a case like this and on the law as it stood when these events occurred , which is before the coming into force of LAW DATE , which may be said to have elevated the right to respect for one ’s home , a finding of malice on the part of the police is the proper balancing safeguard .", "Upon careful reflection , I agree with my ORG that it is inevitable that malice will not be proved in this case . ”", "Counsel advised as follows on the prospects of obtaining leave to appeal to ORG :", "“ CARDINAL . Essentially , on the issue of malicious procurement of a search warrant and in trespass , the court has thought that prior to the introduction of LAW DATE , proof of malice is a necessary component of such a challenge and that the evidence was not there to prove it . It seems to me that this conclusion will not be displaced by ORG . I also think , on the authorities relating to LAW DATE , that there is no question of ORG suggesting that the courts below should have done anything differently in their approach to the case .", "In my view , therefore , the prospects of seeking leave to appeal from ORG are poor and I do not advise that such leave be sought . ”", "Section CARDINAL of the Police and Criminal Evidence Act DATE provides for entry and search without a search warrant :", "“ ( CARDINAL ) Subject to the following provisions of this section ... , a constable may enter and search any LOC for the purpose–", "...", "( b ) of arresting a person for an arrestable offence ;", "... ”", "Police can also apply to the GPE court for a warrant . The grant of a warrant is subject to the safeguards in LAW . LAW provides , inter alia , that the constable must state the ground on which he makes the application and the enactment under which the warrant would be issued ; specify the premises to be entered and searched ; and identify in so far as practicable the articles or persons sought . Applications are made ex parte and supported by an information in writing . The constable must answer on oath any question put to him by the Justice of the FAC or judge . There is no statutory requirement for the court issuing the warrant to make findings or give reasons for issuing the warrant ." ]

[ "13", "8" ]

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[ "The applicant , PERSON , was born in DATE and lives in GPE . She was represented before the ORG by Mr PERSON Ekimdzhiev and Ms K. GPE , lawyers practising in GPE .", "The applicant and her CARDINAL sisters inherited their mother ’s estate after her death in DATE . In DATE , following the adoption of LAW ( see paragraph CARDINAL below ) , the applicant sought , on behalf of all heirs , restitution of a plot of land measuring QUANTITY .", "In a decision of DATE the GPE agricultural land commission found that the land , which had in the meantime been included in the urban territory of GPE , had been built upon and could not be subject to restitution . As no appeal was lodged against that decision , it became final shortly afterwards .", "Nevertheless , in DATE the land commission advised the applicant to seek from the municipality and submit additional documents , whereupon it would re - examine the possibility for partial restitution “ in actual boundaries ” and , if appropriate , modify its decision of DATE . After some delays , which in their submissions to the ORG the parties imputed to each other , the applicant submitted the additional documents in DATE . However , in a letter dated DATE she was informed that the decision of DATE could no longer be modified as the twoyear statutory time - limit during which it had been possible to do so had expired .", "The applicant brought an action seeking nullification of the decision of DATE . On DATE ORG dismissed the action . The applicant did not appeal against that judgment .", "The parties have not informed ORG relevant developments afterwards . At the time of her latest communication to the ORG in DATE the applicant had not yet received the compensation in lieu of restitution she was entitled to under domestic law .", "The first applicant , PERSON , a NORP national who was born in DATE , passed away on DATE . She was inherited by the second and third applicants , PERSON and Mr PERSON , NORP nationals who were born in DATE and DATE respectively and who stated that they wished to continue the application in her stead . On DATE Mr PERSON passed away too . On DATE his heirs , PERSON and PERSON Atanasova Taneva , informed the ORG that they wished to continue the application in his stead . The second applicant , PERSON , as well as Mr PERSON ’s heirs , live in PERSON .", "In DATE and DATE the applicants requested the restoration of their title to agricultural land formerly owned by an ancestor of theirs . In CARDINAL decisions dated DATE and CARDINAL DATE the PERSON agricultural land commission found that the applicants should receive compensation in lieu of restitution for QUANTITY of land in the area around PERSON and the village of PERSON .", "NORP In CARDINAL further decisions dated DATE and DATE the land commission determined the value of the compensation that the applicants were to receive .", "NORP However , following appeals lodged by the applicants , by judgments dated DATE and DATE ORG found the last CARDINAL decisions to be null and void on the ground that the land commission had committed material breaches of the relevant procedural rules .", "On DATE the applicants filed those judgments with the land commission and demanded that it adopt new decisions concerning their compensation .", "On DATE and DATE ORG ( former land commission ) adopted new decisions concerning the applicants’ compensation . However , on an appeal by the applicants , by judgments dated DATE and DATE ORG found these decisions null and void .", "On DATE ORG allotted municipally - owned land to the second and third applicants in compensation for their plots in LOC . The second applicant , PERSON , lodged an appeal , arguing that the land was not of good quality . In a judgment of DATE ORG quashed the impugned decision and remitted the case for fresh consideration , finding that the decision had been based on the previous decisions of DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) , which had already been found to be null and void .", "In a letter dated DATE ORG ( now called ORG ) stated that it had not adopted any new decision concerning the applicants’ restitution claims “ because [ it ] had not received a court decision [ ... ] of DATE ” .", "In its submissions on the case of DATE the Government admitted that no compensation had yet been provided to the applicants and their heirs .", "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the village of GPE . He was represented before the Court by PERSON , a lawyer practicing in GPE .", "The applicant ’s grandfather , who passed away in DATE , owned agricultural land , which was expropriated DATE . The applicant is entitled to CARDINAL of his grandfather ’s inheritance .", "NORP In DATE the applicant and the remaining heirs requested the restitution of CARDINAL plots of land in the village of NORP totalling QUANTITY .", "In a decision of DATE the LOC agricultural land commission found that the claimants were entitled to compensation in the form of other land or compensation bonds .", "In another decision of CARDINAL DATE ORG ( the former agricultural land commission ) allotted to the heirs of the applicant ’s grandfather a plot of QUANTITY as partial compensation for the CARDINAL plots . At the time of the applicant ’s latest communication to the ORG in DATE he had not yet received compensation for the remaining land .", "On an unspecified date the heirs of the applicant ’s grandfather requested the restitution of other land in the village of GPE .", "Apparently , the LOC land commission refused restitution and the heirs of the applicant ’s grandfather appealed to a court .", "In a final judgment of CARDINAL DATE ORG held that the heirs of the applicant ’s grandfather were entitled to the restitution through a “ land redistribution plan ” of several plots of land totalling QUANTITY of land . On DATE the judgment of DATE was amended to include QUANTITY of land .", "On unspecified dates the applicant and the remaining heirs of his grandfather were allotted land totalling QUANTITY . At the time of the applicant ’s latest communication to the ORG in DATE he and the remaining heirs had not yet been allotted the remainder of their land , measuring QUANTITY , or compensation in lieu thereof .", "LAW ( ORG за собствеността и ползването на земеделските земи ) was enacted in DATE . Its provisions concerning the restitution of agricultural land , the possibility of compensation in lieu of restitution , and the relevant procedures have been summarised in the ORG ’s judgments in the cases of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE and CARDINAL , DATE ) and Vasilev and ORG ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) ." ]

[ "P1" ]

[ "P1-1" ]

[ "P1-1-1" ]

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[ "On DATE PERSON ( the first applicant ) joined ORG to serve a DATE engagement ( which could be extended ) as an enrolled nurse . She subsequently obtained the rank of senior aircraft woman . DATE she was recommended for promotion . A promotion was dependent on her becoming a staff nurse and in DATE she was accepted for the relevant conversion course . Her final exams were to take place in DATE .", "On DATE the applicant found a message on her answering machine from an unidentified female caller . The caller stated that she had informed the air force authorities of the applicant ’s homosexuality . On DATE the applicant did not report , as required , for duty . On DATE a woman telephoned the air force ORG ( “ the service police ” ) stating , inter alia , that the applicant was homosexual and was sexually harassing the caller .", "On DATE the applicant reported for duty . She was called to a pre - disciplinary interview because of her absence without leave . In explaining why she did not report for duty , she referred to the anonymous telephone message and admitted that she was homosexual . She also confirmed that she had a previous and current homosexual relationship . Both relationships were with civilians and the current relationship had begun DATE previously . The assistance of the service police was requested , a unit investigation report was opened and an investigator from the service police was appointed .", "The applicant was interviewed on DATE by that investigator and another officer ( female ) from the service police . The interview lasted TIME . She was cautioned that she did not have to say anything but that anything she did say could be given in evidence . The applicant later confirmed that her solicitor had advised her not to say anything but she agreed that she would answer simple questions but not the “ nitty gritty ” . She was told that she might be asked questions which could embarrass her and that if she felt embarrassed she should say so . It was also explained that the purpose of the questions was to verify that her admission was not an attempt to obtain an early discharge from the service .", "The applicant confirmed that , while she had had “ thoughts ” about her sexual orientation for DATE , she had her first lesbian relationship during DATE in the air force . She was asked how she came to realise that she was lesbian , the names of her previous partners ( she refused to give this information ) and whether her previous partners were in the service ( this question was put a number of times ) . She was questioned about how she had met her current partner and the extent of her relationship with that partner but she would not respond at first , at which stage her interviewer queried how else he was to substantiate her homosexuality . The applicant then confirmed that she and her partner had a full sexual relationship .", "She was also asked whether she and her partner had a sexual relationship with their foster daughter ( DATE ) . The applicant indicated that she knew the consequences of her homosexuality being discovered and , while she considered herself just as capable of doing the job as another , she had come to terms with what was going to happen to her . The interviewers also wanted to know whether she had taken legal advice , who was her solicitor , what advice he had already given her and what action she proposed to take after the interview . She was also asked whether she had thought about HIV , whether she was being “ careful ” , what she did in her spare time and whether she was into “ girlie games ” like hockey and netball . The applicant agreed that her partner , who was waiting outside during the interview , could be interviewed for “ corroboration ” purposes .", "The report prepared by the interviewers dated DATE described the subsequent interview of the applicant ’s partner . The latter confirmed that she and the applicant had been involved in a full sexual relationship for DATE but she declined to elaborate further .", "NORP The investigation report was sent to the applicant ’s commanding officer who , on DATE , recommended the applicant ’s administrative discharge . On DATE the applicant received a certificate of discharge from the armed forces . An internal air force document dated DATE described the applicant ’s overall general assessment for trade proficiency and personal qualities as very good and her overall conduct assessments as exemplary .", "On DATE Mr PERSON ( the second applicant ) joined ORG at the rank of aircraftman serving as a trainee administrative clerk . By DATE he had achieved the rank of sergeant and worked as a personnel administrator , at which stage he was posted to GPE at ORG ( LOC ) – “ BDILS(NA ) ” . He served as chief clerk and led the BDILS(NA ) support staff team . In DATE the applicant , who was married with CARDINAL children , told his wife that he was homosexual .", "The applicant ’s general assessment covering DATE to DATE gave him CARDINAL out of a maximum of MONEY for trade proficiency , supervisory ability and personal qualities . His ability to work well with all rank levels , with NORP and NORP peers and with his senior officer contacts was noted , his commanding officer concluding that the applicant was highly recommended for promotion ( a special recommendation being noted as well within his reach ) and that he was particularly suited for “ PS [ personal assistant]/SDL [ special duties list]/Diplomatic duties ” .", "Following disclosures to the wife of the head of the BDILS(NA ) by their nanny , the head of the BDILS(NA ) reported that it was suspected that the applicant was homosexual . A unit investigation report was opened and a service police officer nominated as investigator .", "On DATE the applicant ’s security clearance was replaced with a lower security clearance . On CARDINAL DATE he was relieved of his duties by the head of the BDILS(NA ) and was informed that he was being returned to the GPE pending investigation of a problem with his security clearance . On DATE the applicant was brought to his home to pack his belongings and was required to leave GPE for GPE . He was then required to remain at the relevant air force base in GPE .", "On DATE the head of the BDILS(NA ) advised CARDINAL service police investigators , who had by then arrived in GPE , that his own wife , their nanny , the applicant ’s wife and another ( female ) employee of the BDILS(NA ) , together with the latter ’s husband , should be interviewed .", "The nanny detailed in a statement how , through her own involvement in the homosexual community , she had come to suspect that the applicant was homosexual . The wife of the head of the BDILS(NA ) revealed in interview confidences made to her by the applicant ’s wife about the applicant ’s marriage difficulties and sex life and informed investigators about a cycling holiday taken by the applicant with a male colleague . It was decided by the investigators that her statement would serve no useful purpose . The applicant ’s colleague and the latter ’s husband also spoke of the applicant ’s marriage difficulties , the sleeping arrangements of the applicant and his wife and the applicant ’s cycling holiday with a male colleague . These persons were also asked about the possibility of the applicant having had an extra - marital relationship and of being involved in the homosexual community . The investigators later reported that these friends were clearly loyal to the applicant and not to be believed .", "The applicant ’s wife was then interviewed . The case progress report dated CARDINAL DATE describes the interview in detail . It was explained to the applicant ’s wife that the interview related to the applicant ’s security clearance and that her husband had been transferred to GPE at short notice in accordance with standard procedure . She agreed to talk to the investigators and , further to questioning , outlined in some detail their financial position , the course of and the current state of their marriage , their sexual habits and the applicant ’s relationship with his CARDINAL children . She confirmed that her husband ’s sexual tendencies were normal and indicated that her husband had gone on his own on the cycling holiday in question .", "On CARDINAL DATE the applicant ’s lower security clearance was suspended .", "On DATE the applicant was required to attend an interview with the same CARDINAL investigators who had returned from GPE . It began at TIME and was conducted under caution with an observer ( also from the air force ) present at the applicant ’s request . The applicant was informed that an allegation had been made regarding his sexual orientation ( the terms “ queen ” and “ out and out bender ” were used ) and it was made clear that the investigators had been to GPE and had spoken to a number of people , CARDINAL or CARDINAL of whom thought he was gay .", "The applicant denied he was homosexual . He was asked numerous questions about his work , his relationship with the head of the BDILS(NA ) , his cycling holiday and about his female colleague . He was told that his wife had been interviewed in detail and he was informed from time to time by the interviewers if his answers matched those of his wife . He was asked to tell the interviewers about the break - up of his marriage , whether he had extra - marital affairs , about his and his wife ’s sex life including their having protected sex and about their financial situation . He was also questioned on the cycling holiday , about a male colleague and the latter ’s sexual orientation . They asked the applicant who he was calling since he had returned to GPE and how he was telephoning . He was told that he would be asked to supply his electronic diary which contained names , addresses and telephone numbers and was told that the entries would be verified for homosexual contacts . They informed the applicant that they had a warrant if he did not agree to a search of his accommodation . The applicant agreed to the search . The applicant also requested time to think and to take legal advice . The interview was adjourned at TIME", "The applicant then took advice from a solicitor and his accommodation was searched . The interview recommenced at TIME with the applicant ’s solicitor and an observer present . Despite being pressed with numerous questions , the applicant answered “ no comment ” to most of the questions posed . Given the applicant ’s responses , his lawyer was asked what advice had been given to the applicant . The applicant ’s digital diary was taken from him . He was asked whether he realised the security implications of the investigation and that his career was on the line if the allegations against him were proved . CARDINAL of the investigators then asked him :", "“ … if you wish to change your mind and want to speak to me , while I ’m still here , before I go back to GPE ; because I ’m going back to GPE . Because I ’m going to see the Colonel DATE , that is the one in GPE , who is then going to see the General and we ’re going to get permission to speak to the NORP … and I shall stay out there , PERSON , until I have spoken to all NORP that you know . Expense is not a problem . ORG is not a problem … ”", "The detailed evidence given by his wife to the investigators was put to the applicant , including information about his relationship with his son , his daughter and his mother - in - law , about matters relating to the family home of which the applicant was not aware and about his having protected sex with his wife . The interviewer returned again to the subject of the applicant having previously grown cold towards his wife but now declaring his love for her . The applicant continued to respond “ no comment ” . It was explained to the applicant ’s solicitor that the service attitude in relation to investigations involving acts of alleged homosexuality did not warrant the provision of legal advice and that the applicant ’s solicitor was only delaying matters . The investigators also mentioned that it was a security matter which they would not detail further since his solicitor did not have security clearance , but that the applicant should not be surprised if some counter - intelligence people came to talk to him and that there would be no legal advice for that .", "The applicant requested time to speak to his lawyer and the interview was interrupted at TIME The applicant then spoke to his lawyer and asked to think about matters TIME .", "The interview recommenced at TIME on DATE with the same investigators and an observer , but the applicant did not require a solicitor . The applicant admitted his homosexuality almost immediately and confirmed that the reason he denied it at first was that he was not clear about the position as regards the retention of certain accumulated benefits on discharge and he was concerned about his family ’s financial position in that eventuality . However , he had since discovered that his discharge would be administrative and that he would get his terminal benefits , so he could be honest .", "The applicant was questioned further about a person called “ PERSON , whether his wife knew he was homosexual , whether a male colleague was homosexual and when he had “ come out ” . He was asked whether he was a practising homosexual , but he declined to give the name of his current partner , at which stage it was explained to him that the service had to verify his admission of homosexuality to avoid fraudulent attempts at early discharge . He was then questioned about his first homosexual relationship ( he confirmed that it began in DATE ) , his homosexual partners ( past and present ) , who they were , where they worked , how old they were , how the applicant met them and about the nature of his relationship with them , including the type of sex they had .", "During this interview , the personal items taken from the applicant were produced and the applicant was questioned about , inter alia , the contents of his digital diary , a photograph , a torn envelope and a letter from the applicant to his current partner . He was questioned further about when he first realised he was homosexual , who knew about his sexual orientation , his relationship with his wife ( including their sexual relationship ) , what his wife thought about his homosexuality , his HIV status and again about the nature of his sexual relationships with his homosexual partners . The interview terminated at TIME", "The investigators prepared a report on DATE . In his certificate of qualifications and reference on discharge dated DATE , the applicant was described as a loyal serviceman and a conscientious and hard worker who could be relied upon to achieve the highest standards . It was also noted that he had displayed sound personal qualities and integrity throughout his service and had enjoyed the respect of his superiors , peers and subordinates alike . The applicant was administratively discharged with effect from DATE .", "Along with Mr PERSON and PERSON ( see paragraph CARDINAL above ) , the applicants obtained leave to apply for judicial review of the decisions to discharge them from the armed forces . The applicants argued that the policy of ORG against homosexuals in the armed forces was “ irrational ” , that it was in breach of the LAW and that it was contrary to LAW . ORG maintained that the policy was necessary mainly to maintain morale and unit effectiveness , in view of the loco parentis role of the services as regards minor recruits and in light of the requirement of communal living in the armed forces .", "On DATE ORG dismissed the application for judicial review , Lord Justice PERSON giving the main judgment of the court . He noted that the cases illustrated the hardships resulting from the absolute policy against homosexuals in the armed forces and that all CARDINAL of the applicants had exemplary service records , some with reports written in glowing terms . Moreover , he found that in none of the cases before him was it suggested that the applicants’ sexual orientation had in any way affected their ability to carry out their work or had any ill - effect on discipline . There was no reason to doubt that , but for their discharge on the sole ground of sexual orientation , they would have continued to perform their service duties entirely efficiently and with the continued support of their colleagues . All were devastated by their discharge .", "PERSON reviewed the background to the “ age - old ” policy , the relevance of ORG report of DATE , the position in other armed forces around the world , the arguments of ORG ( noting that the security argument was no longer of substantial concern to the government ) together with the applicants’ arguments against the policy . He considered that the balance of argument clearly lay with the applicants , describing the applicants’ submissions in favour of a conduct - based code as “ powerful ” . In his view , the tide of history was against ORG . He further observed that it was improbable , whatever ORG would say , that the policy could survive for much longer and added , “ I doubt whether most of those present in court throughout the proceedings now believe otherwise . ”", "NORP However , having considered arguments as to the test to be applied in the context of these judicial review proceedings , PERSON concluded that the conventional ORG principles , adapted to a human rights context , should be applied .", "Accordingly , where fundamental human rights were being restricted , the Minister of Defence needed to show that there was an important competing interest to justify the restriction . The primary decision was for him and the secondary judgment of the court amounted to asking whether a reasonable Minister , on the material before him , could have reasonably made that primary judgment . He later clarified that it was only if the purported justification “ outrageously defies logic or accepted moral standards ” that the court could strike down the Minister ’s decision . He noted that within the limited scope of that review , the court had to be scrupulous to ensure that no recognised ground of challenge was in truth available to an applicant before rejecting the application . When the most fundamental human rights are threatened , the court would not , for example , be inclined to overlook some minor flaw in the decision - making process , or to adopt a particularly benevolent view of the Minister ’s evidence , or to exercise its discretion to withhold relief . However , he emphasised that , even where the most fundamental human rights were being restricted , “ the threshold of unreasonableness is not lowered ” .", "It was clear that the Secretary of ORG had cited an important competing public interest . But the central question was whether it was reasonable for the Secretary of ORG to take the view that allowing homosexuals into the forces would imperil that interest . He pointed out that , although he might have considered the Minister wrong ,", "“ … [ the courts ] owe a duty ... to remain within their constitutional bounds and not trespass beyond them . Only if it were plain beyond sensible argument that no conceivable damage could be done to the armed services as a fighting unit would it be appropriate for this court now to remove the issue entirely from the hands of both the military and of the government . If the Convention … were part of our law and we were accordingly entitled to ask whether the policy answers a pressing social need and whether the restriction on human rights involved can be shown proportionate to the benefits then clearly the primary judgment … would be for us and not others : the constitutional balance would shift . But that is not the position . In exercising merely a secondary judgment , this court is bound to act with some reticence . Our approach must reflect , not overlook , where responsibility ultimately lies for the defence of the realm and recognise too that ORG is exercising a continuing supervision over this area of prerogative power . ”", "Accordingly , while the Minister ’s suggested justification for the ban may have seemed “ unconvincing ” , the Minister ’s stand could not properly be said to be unlawful . It followed that the applications had to be rejected “ albeit with hesitation and regret ” . A brief analysis of the Convention ’s case - law led the judge to comment that he strongly suspected that , as far as GPE obligations were concerned , DATE of the policy were numbered .", "Simon Brown LJ also found that the Equal Treatment Directive was not applicable to discrimination on grounds of sexual orientation and that the domestic courts could not rule on Convention matters . He also observed that GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and the GPE permitted homosexuals to serve in their armed forces and that the evidence indicated that the only countries operating a blanket ban were GPE and GPE ( and , possibly , GPE and GPE ) .", "In DATE a consultation paper was circulated by ORG to “ management ” levels in the armed forces relating to ORG policy against homosexuals in those forces . The covering letter circulating this paper pointed out that the “ Minister for ORG has decided that evidence is to be gathered within ORG in support of the current policy on homosexuality ” . It was indicated that the case was likely to progress to the NORP courts and that the applicants in the judicial review proceedings had argued that ORG position was “ bereft of factual evidence ” but that this was not surprising since evidence was difficult to amass given that homosexuals were not permitted to serve . Since “ this should not be allowed to weaken the arguments for maintaining the policy ” , the addressees of the letter were invited to comment on the consultation paper and “ to provide any additional evidence in support of the current policy by DATE ” . The consultation paper attached referred , inter alia , to CARDINAL incidents which were considered damaging to unit cohesion . The first involved a homosexual who had had a relationship with a sergeant ’s mess waiter and the other involved an NORP on secondment whose behaviour was described as “ so disruptive ” that his attachment was terminated .", "On DATE ORG dismissed the ORG appeal . The Master of the Rolls , Sir PERSON , delivered the main judgment ( with which the CARDINAL other judges of ORG agreed ) .", "As to the court ’s approach to the issue of “ irrationality ” , he considered that the following submission was an accurate distillation of the relevant jurisprudence on the subject :", "“ the court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision - maker . But in judging whether the decision - maker has exceeded this margin of appreciation the human rights context is important . The more substantial the interference with human rights , the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above . ”", "He went on to quote from , inter alia , the judgment of FAC in NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL Appeal Cases CARDINAL , where it was pointed out that :", "“ the primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of ORG to whom ORG has entrusted the discretion . But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of ORG , on the material before him , could reasonably make that primary judgment . ”", "Moreover , he considered that the greater the policy content of the decision , and the more remote the subject matter of a decision from ordinary judicial experience , the more hesitant the court had to be in holding a decision to be irrational .", "Prior to applying this test of irrationality , the Master of the Rolls noted that the case concerned innate qualities of a very personal kind , that the decisions of which the applicants complained had had a profound effect on their careers and prospects and that the applicants’ rights as human beings were very much in issue . While the domestic court was not the primary decision - maker and while it was not the role of the courts to regulate the conditions of service in the armed forces , “ it has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power . While the court must properly defer to the expertise of responsible decision - makers , it must not shrink from its fundamental duty to ‘ do right to all manner of people’ … ” .", "He then reviewed , by reference to the test of irrationality outlined above , the submissions of the parties in favour of and against the policy , commenting that the applicants’ arguments were “ of very considerable cogency ” which called to be considered in depth with particular reference to past experience in GPE , to the developing experience of other countries and to the potential effectiveness of a detailed prescriptive code in place of the present blanket ban . However , he concluded that the policy could not be considered “ irrational ” at the time the applicants were discharged from the armed forces , finding that the threshold of irrationality was “ a high one ” and that it had not been crossed in this case .", "On the Convention , the Master of the Rolls noted as follows :", "“ It is , inevitably , common ground that GPE obligation , binding in international law , to respect and ensure compliance with [ LAW ] is not one that is enforceable by domestic courts . The relevance of the LAW in the present context is as background to the complaint of irrationality . The fact that a decision - maker failed to take account of LAW when exercising an administrative discretion is not of itself a ground for impugning the exercise of that discretion . ”", "He observed that to dismiss a person from his or her employment on the grounds of a private sexual preference , and to interrogate him or her about private sexual behaviour , would not appear to show respect for that person ’s private and family life and that there might be room for argument as to whether the policy answered a “ pressing social need ” and , in particular , was proportionate to the legitimate aim pursued . However , he held that these were not questions to which answers could be properly or usefully proffered by ORG but rather were questions for ORG , to which court the applicants might have to pursue their claim . He further accepted that ORG did not apply to complaints in relation to sexual orientation .", "PERSON of ORG agreed with the judgment of the Master of the Rolls and , in particular , with the latter ’s approach to the irrationality test and with his view on the inability of the court to resolve Convention issues . He questioned the utility of a debate as to the likely fate of the “ longstanding ” policy of ORG before ORG with which the primary adjudicating role on the Convention lay . ORG did not entertain “ hypothetical questions ” . In PERSON view , the only relevance of the ORG was as “ background to the complaint of irrationality ” , which point had been already made by the Master of the Rolls . It was important to highlight this point since ORG had not given the domestic courts primary jurisdiction over human rights issues contained in the ORG and because the evidence and submissions before ORG related to that court ’s secondary jurisdiction and not to its primary jurisdiction .", "PERSON of ORG agreed with both preceding judgments and , in particular , with the views expressed on the rationality test to be applied and on its application in the particular case . The applicants’ arguments that their rights under LAW had been breached were “ persuasive ” but the evidence and arguments that would ultimately determine that issue were not before ORG . He also found that the ORG challenge to the arguments in support of the policy was “ completely persuasive ” and added that what impressed him most in relation to the merits was the complete absence of illustration and substantiation by specific examples , not only in the Secretary of ORG ’s evidence filed in ORG , but also in the case presented to ORG in DATE . The policy was , in his view , “ ripe for review and for consideration of its replacement by a strict conduct code ” . However , the applicants’ attack on the Secretary of ORG ’s rationality fell “ a long way short of success ” .", "On DATE ORG of ORG refused leave to appeal to ORG .", "At or around the time the applicants lodged their applications for leave to take judicial review proceedings , they also instituted proceedings before ORG alleging discrimination contrary to LAW DATE . The latter proceedings were stayed pending the outcome of the judicial review proceedings .", "By letter dated CARDINAL DATE the applicants confirmed to ORG that they had requested the withdrawal of ORG proceedings given the outcome of the judicial review proceedings and other intervening jurisprudence of the domestic courts and of the ECJ .", "By virtue of section CARDINAL(CARDINAL ) of LAW , homosexual acts in private between CARDINAL consenting adults ( at the time meaning DATE or over ) ceased to be criminal offences . However , such acts continued to constitute offences under the ORG and ORG Acts DATE and LAW DATE ( Section CARDINAL(CARDINAL ) of LAW ) . Section CARDINAL(CARDINAL ) of LAW was repealed by ORG which LAW also reduced the age of consent to DATE ) . However , section CARDINAL ) of the DATE Act provided that nothing in that section prevented a homosexual act ( with or without other acts or circumstances ) from constituting a ground for discharging a member of the armed forces .", "On DATE the ECJ decided that transsexuals were protected from discrimination on grounds of their transsexuality under ORG law ( PERSON and ORG [ DATE ] ORG CARDINAL ) .", "On DATE ORG referred to the ECJ pursuant to LAW the question of the applicability of LAW to differences of treatment based on sexual orientation ( NORP v. Secretary of ORG , ex parte Perkins , DATE ) . PERSON had been discharged from ORG on grounds of his homosexuality .", "On DATE the ECJ found that the Equal Pay Directive CARDINAL/CARDINAL/EEC did not apply to discrimination on grounds of sexual orientation ( Grant v. ORG [ DATE ] ORG CARDINAL ) .", "Consequently , on DATE the ECJ enquired of ORG in the GPE case whether it wished to maintain the Article CARDINAL reference . After a hearing between the parties , ORG decided to withdraw the question from the ECJ ( NORP v. Secretary of ORG , ex parte Perkins , DATE ) . Leave to appeal was refused .", "As a consequence of the changes made by ORG , updated Armed Forces’ Policy and Guidelines on Homosexuality ( “ the LAW ) were distributed to the respective service directorates of personnel in DATE . The Guidelines provided , inter alia , as follows :", "“ Homosexuality , whether male or female , is considered incompatible with service in the armed forces . This is not only because of the close physical conditions in which personnel often have to live and work , but also because homosexual behaviour can cause offence , polarise relationships , induce ill - discipline and , as a consequence , damage morale and unit effectiveness . If individuals admit to being homosexual whilst serving and their Commanding Officer judges that this admission is well - founded they will be required to leave the services ...", "The armed forces’ policy on homosexuality is made clear to all those considering enlistment . If a potential recruit admits to being homosexual , he / she will not be enlisted . Even if a potential recruit admits to being homosexual but states that he / she does not at present nor in the future intend to engage in homosexual activity , he / she will not be enlisted ...", "In dealing with cases of suspected homosexuality , a Commanding Officer must make a balanced judgment taking into account all the relevant factors . ... In most circumstances , however , the interests of the individual and the armed forces will be best served by formal investigation of the allegations or suspicion . Depending on the circumstances , the Commanding Officer will either conduct an internal inquiry , using his own staff , or he will seek assistance from ORG . When conducting an internal inquiry he will normally discuss the matter with his welfare support staff . Homosexuality is not a medical matter , but there may be circumstances in which the Commanding Officer should seek the advice of ORG on the individual concerned and may then , if the individual agrees , refer him / her to the ORG ...", "A written warning in respect of an individual ’s conduct or behaviour may be given in circumstances where there is some evidence of homosexuality but insufficient ... to apply for administrative discharge ... . If the Commanding Officer is satisfied on a high standard of proof of an individual ’s homosexuality , administrative action to terminate service ... is to be initiated ... ”", "CARDINAL of the purposes of the Guidelines was the reduction of the involvement of the service police whose investigatory methods , based on criminal procedures , had been strongly resented and widely publicised in the past ( confirmed at paragraph CARDINAL of the Homosexual Policy Assessment Team ’s report of DATE which is summarised at paragraphs DATE below . However , paragraph CARDINAL of this report indicated that investigation into homosexuality is part of “ normal service police duties ” . )", "The affidavit of Air Chief Marshal Sir PERSON , ORG , Vice Chief of ORG , ORG dated DATE , which was submitted to ORG in the case of NORP v. Secretary of ORG , ex parte Perkins ( DATE ) , read , in so far as relevant , as follows :", "“ The policy of ORG is that the special nature of homosexual life precludes the acceptance of homosexuals and homosexuality in the armed forces . The primary concern of the armed forces is the maintenance of an operationally effective and efficient force and the consequent need for strict maintenance of discipline . [ ORG ] believes that the presence of homosexual personnel has the potential to undermine this .", "The conditions of military life , both on operations and within the service environment , are very different from those experienced in civilian life . … The [ ORG ] believes that these conditions , and the need for absolute trust and confidence between personnel of all ranks , must dictate its policy towards homosexuality in the armed forces . It is not a question of a moral judgement , nor is there any suggestion that homosexuals are any less courageous than heterosexual personnel ; the policy derives from a practical assessment of the implications of homosexuality for fighting power . ”", "Following the decision in the case of NORP v. ORG , ex parte Smith and Others CARDINAL Weekly Law Reports CARDINAL , ORG ( “ HPAT ” ) was established by ORG in order to undertake an internal assessment of the armed forces’ policy on homosexuality . The ORG was composed of ORG civil servants and representatives of the CARDINAL services . The ORG ’s assessment was to form the basis of the ORG ’s evidence to the next ORG ( as confirmed in the affidavit of ORG Marshal Sir PERSON referred to at paragraph CARDINAL above ) . The ORG was to consult ORG , the armed forces’ personnel of all ranks , service and civilian staff responsible for carrying out the policy together with members of the legal adviser ’s staff . It was also to examine the policies of other nations ( Annex D to the ORG report ) .", "The report of the ORG was published in DATE and ran to CARDINAL pages , together with voluminous annexes . The starting - point of the assessment was an assumption that homosexual men and women were in themselves no less physically capable , brave , dependable and skilled than heterosexuals . It was considered that any problems to be identified would lie in the difficulties which integration of declared homosexuals would pose to the military system which was largely staffed by heterosexuals . The ORG considered that the best predictors of the “ reality and severity ” of the problems of the integration of homosexuals would be the service personnel themselves ( paragraph CARDINAL of the report ) .", "There were CARDINAL main areas of investigation ( paragraph CARDINAL of the report ) :", "( a ) The ORG consulted with policy - makers in ORG . The latter emphasised the uniqueness of the military environment and the distinctly NORP approach to service life and the ORG found little disagreement with this general perspective from the service people it interviewed ( paragraph CARDINAL ) ;", "( b ) A signal was sent to all members of the services , including the reserve forces , requesting any written views on the issues . By DATE the ORG had received CARDINAL letters . CARDINAL of these letters were against any change in the policy , CARDINAL of which were multiply signed . CARDINAL of those letters were anonymous ( paragraphs CARDINAL ) ;", "( c ) The ORG attitude survey consisted of a questionnaire administered to a total of CARDINAL service personnel chosen as representative of the services . The questionnaires were administered in examination - type conditions and were to be completed anonymously . The results indicated that there was “ overwhelming support across the services ” for the policy excluding homosexuals from the armed forces . Service personnel viewed homosexuality as clearly more acceptable in civilian than in service life ( paragraphs CARDINAL and ORG ) ;", "( d ) During the ORG ’s visit to CARDINAL military bases in DATE in order to administer the above questionnaire , individual one - to - CARDINAL interviews were conducted with personnel who had completed the attitude questionnaire . CARDINAL interviewees randomly selected from certain ranks and occupational areas were selected from each of the CARDINAL units visited . Given the small number of interviewees , the responses were analysed qualitatively rather than quantitatively ( Annex G ) ;", "( e ) A number of single - service focus group discussions were held with randomly selected personnel from representative ranks and functions ( ORG refers to CARDINAL such discussions whereas paragraph CARDINAL of the report refers to CARDINAL ) . The purpose of the group discussions was to examine the breadth and depth of military views and to provide insights that would complement the survey results . The ORG commented that the nature of the discussions showed little reticence in honestly and fully putting forward views ; there was an “ overwhelming view that homosexuality was not ‘ normal’ or ‘ natural’ whereas women and ethnic minorities were ‘ normal’ ” . The vast majority of participants believed that the present ban on homosexuals should remain ( paragraphs CARDINAL - CARDINAL and ORG ) ;", "( f ) CARDINAL sub - team of the ORG went to GPE , GPE and GPE and the other visited GPE , GPE and the GPE . The ORG interviewed an eminent NORP military psychologist since the NORP military would not accept the ORG visit ( paragraphs CARDINAL and ORG ) . It is also apparent that the ORG spoke to representatives of the police , the fire service and the merchant navy ( paragraphs CARDINAL - CARDINAL ) ;", "( g ) ORG - service regional focus discussion groups were also held to examine the breadth and depth of the personnel ’s views . The groups were drawn from the CARDINAL services and from different units . CARDINAL such discussion groups were held and overall the results were the same as those from the single - service focus groups ( paragraphs CARDINAL - CARDINAL and ORG ) ;", "( h ) ORG single - service attitude surveys were also completed by a randomly selected sample of personnel stratified by rank , age and gender . The surveys were distributed to CARDINAL ( PERCENT ) of ORG and ORG personnel , to CARDINAL ( PERCENT ) of the ORG personnel and to CARDINAL ( PERCENT ) of the ORG personnel . On CARDINAL of the surveys were returned ( paragraphs CARDINAL and ORG ) .", "The ORG report defined “ fighting power ” ( often used interchangeably with combat effectiveness , operational efficiency or operational effectiveness ) as the “ ability to fight ” which is in turn made up of CARDINAL components . These are the “ conceptual ” and “ physical ” components together with the “ moral component ” , the latter being defined as “ the ability to get people to fight including morale , comradeship , motivation , leadership and management ” .", "The focus throughout the assessment was upon the anticipated effects on fighting power and this was found to be the “ key problem ” in integrating homosexuals into the armed forces . It was considered well - established that the presence of known or strongly suspected homosexuals in the armed forces would produce certain behavioural and emotional responses and problems which would affect morale and , in turn , significantly and negatively affect the fighting power of the armed forces .", "These anticipated problems included controlling homosexual behaviour and heterosexual animosity , assaults on homosexuals , bullying and harassment of homosexuals , ostracism and avoidance , “ cliquishness ” and pairing , leadership and decision - making problems including allegations of favouritism , discrimination and ineffectiveness ( but excluding the question of homosexual officers taking tactical decisions swayed by sexual preference ) , sub - cultural friction , privacy / decency issues , increased dislike and suspicions ( polarised relationships ) , and resentment over imposed change especially if controls on heterosexual expression also had to be tightened ( see Section F.II of the report ) .", "The ORG also assessed other matters it described as “ subsidiary ” ( Section G and paragraph CARDINAL of the report ) . It found that , while cost implications of changing the policy were not quantifiable , it was not considered that separate accommodation for homosexuals would be warranted or wise and , accordingly , major expenditures on accommodation were considered unlikely ( paragraphs CARDINAL - CARDINAL ) . Wasted training as regards discharged homosexuals was not considered to be a significant argument against maintaining the policy ( paragraphs CARDINAL - CARDINAL ) . Should the wider social and legal position change in relation to civilian homosexual couples , then entitlements for homosexual partners would have to be accepted ( paragraph CARDINAL ) . Large amounts of money or time were unlikely to be devoted to homosexual awareness training , given that it was unlikely to be effective in changing attitudes . It was remarked that , if required , tolerance training would probably be best addressed as “ part of an integrated programme for equal opportunities training in the military ” ( paragraph CARDINAL ) . There were strong indications that recruitment and retention rates would go down if there was a change in policy ( paragraphs CARDINAL - CARDINAL ) .", "Concerns expressed about the fulfilment of the forces’ loco parentis responsibilities for young recruits were found not to stand up to close examination ( paragraph CARDINAL ) .", "Medical and security concerns were considered separately ( Sections H and I , respectively , and paragraph CARDINAL of the report ) . While it was noted that medical concerns of personnel ( in relation to , inter alia , Aids ) were disproportionate to the clinical risks involved , it was considered that these concerns would probably need to be met with education packages and compulsory Aids testing . Otherwise , real acceptance and integration of homosexuals would be seriously prejudiced by emotional reactions and resentments and by concerns about the threat of Aids . The security issues ( including the possibility of blackmail of those suspected of being homosexual ) raised in defence of the policy were found not to stand up to close examination .", "The ORG observed that there were a wide variety of official positions and legal arrangements evolving from local legal and political circumstances and ranging from a formal prohibition of all homosexual activity ( GPE ) , to administrative arrangements falling short of real equality ( GPE and GPE ) , to a deliberate policy to create an armed force friendly to homosexuals ( the GPE ) . According to the ORG , those countries which had no legal ban on homosexuals were more tolerant , had written constitutions and therefore a greater tradition of respect for human rights . The report continued :", "“ But nowhere did ORG learn that there were significant numbers of open homosexuals serving in ORG . Whatever the degree of official toleration or encouragement , informal pressures or threats within the military social system appeared to prevent the vast majority of homosexuals from choosing to exercise their varying legal rights to open expression of their active sexual identity in a professional setting . … It goes without saying that the continuing reticence of military homosexuals in these armed forces means that there has been little practical experience of protecting them against ostracism , harassment or physical attack .", "Since this common pattern of a near absence of openly homosexual personnel occurs irrespective of the formal legal frameworks , it is reasonable to assume that it is the informal functioning of actual military systems which is largely incompatible with homosexual self - expression . This is entirely consistent with the pattern of NORP service personnel ’s attitudes confirmed by the ORG . ”", "In DATE there were over CARDINAL NORP service personnel ( PERCENT approximately of the NORP armed forces ) deployed overseas on operations , more than any other ORG country in LOC ( paragraph CARDINAL ) .", "The ORG concluded , nevertheless , that the policy had not presented significant problems when working with the armed forces of allied nations . The ORG remarked that NORP service personnel had shown a “ robust indifference ” to arrangements in foreign forces and no concern over what degree of acceptance closely integrated allies give to homosexuals . This is because the average service person considers that those others “ are not NORP , have different standards , and are thus only to be expected to do things differently ” and because personnel from different nations are accommodated apart . It was also due to the fact that homosexuals in foreign forces , where they were not formally banned , were not open about their sexual orientation . Consequently , the chances were small of the few open homosexuals happening to be in a situation where their sexual orientation would become a problem with NORP service personnel ( paragraph CARDINAL ) .", "Important differences were considered by the ORG to exist between the armed forces and civilian disciplined services in GPE including the police , the fire brigade and the merchant navy which did not operate the same policy against homosexuals . It considered that :", "“ None of these occupations involves the same unremittingly demanding and long - term working environment as ORG , or requires the same emphasis on building rapidly interchangeable , but fiercely committed and self - supporting teams , capable of retaining their cohesion after DATE of stress , casualties and discomfort … ” ( paragraph CARDINAL )", "Alternative options were considered by the ORG including a code of conduct applicable to all , a policy based on the individual qualities of homosexual personnel , lifting the ban and relying on service personnel reticence , the “ do n’t ask , do n’t tell ” solution offered by the GPE and a “ no open homosexuality ” code . It concluded that no policy alternative could be identified which avoided risks for fighting power with the same certainty as the present policy and which , in consequence , would not be strongly opposed by the service population ( paragraphs CARDINAL ) .", "The ORG found that :", "“ the key problem remains and its intractability has indeed been re - confirmed . The evidence for an anticipated loss in fighting power has been set out in section F and forms the centrepiece of this assessment . The various steps in the argument and the overall conclusion have been shown not only by the ORG authorities but by the great majority of Service personnel in all ranks . ”", "Current service attitudes were considered unlikely to change in the near future . While clearly hardship and invasion of privacy were involved , the risk to fighting power demonstrated why the policy was , nevertheless , justified . It considered that it was not possible to draw any meaningful comparison between the integration of homosexuals and of women and ethnic minorities into the armed forces since homosexuality raised problems of a type and intensity that gender and race did not .", "The ORG considered that , in the longer term , evolving social attitudes towards homosexuality might reduce the risks to fighting power inherent in change but that their assessment could “ only deal with present attitudes and risks ” . It went on :", "“ … certainly , if service people believed that they could work and live alongside homosexuals without loss of cohesion , far fewer of the anticipated problems would emerge . But the ORG must deal with the world as it is . Service attitudes , in as far as they differ from those of the general population , emerge from the unique conditions of military life , and represent the current social and psychological realities . They indicate military risk from a policy change …", "… after collecting the most exhaustive evidence available , it is also evident that in the GPE homosexuality remains in practice incompatible with service life if the armed services , in their present form , are to be maintained at their full potential fighting power . ... Furthermore , the justification for the present policy has been overwhelmingly endorsed by a demonstrated consensus of the profession best able to judge it . It must follow that a major change to the ORG ’s current GPE - service Guidelines on homosexuality should be contemplated only for clearly stated non - defence reasons , and with a full acknowledgement of the impact on Service effectiveness and service people ’s feelings . ”", "The Defence Council ’s “ Code of Practice on Race Relations ” issued in DATE declared the armed forces to be equal opportunity employers . It stated that no form of racial discrimination , harassment or abuse would be tolerated , that allegations would be investigated and , if proved , disciplinary action would be taken . It provided for a complaints procedure in relation to discrimination or harassment and it warned against the victimisation of service personnel who made use of their right of complaint and redress .", "NORP In DATE the army published an Equal Opportunities Directive dealing with racial and sexual harassment and bullying . The policy document contained , as a preamble , a statement of the Adjutant- General which reads as follows :", "“ The reality of conflict requires high levels of teamwork in which individual soldiers can rely absolutely on their comrades and their leaders . There can , therefore , be no place in the ORG for harassment , bullying and discrimination which will affect morale and break down the trust and cohesion of the group .", "It is the duty of every soldier to ensure that the ORG is kept free of such behaviour which would affect cohesion and efficiency . ORG policy is clear : all soldiers must be treated equally on the basis of their ability to perform their duty .", "I look to each one of you to uphold this policy and to ensure that we retain our acknowledged reputation as a highly professional ORG . ”", "The Directive provided definitions of racial and sexual harassment , indicated that the army wanted to prevent all forms of offensive and unfair behaviour in these respects and pointed out that it was the duty of each soldier not to behave in a way that could be offensive to others or to allow others to behave in that way . It also defined bullying and indicated that , although the army fosters an aggressive spirit in soldiers who will have to go to war , controlled aggression , self - sufficiency and strong leadership must not be confused with thoughtless and meaningless use of intimidation and violence which characterise bullying . Bullying undermines morale and creates fear and stress both in the individual and the group being bullied and in the organisation . The army was noted to be a close - knit community where team work , cohesion and trust are paramount . Thus , high standards of personal conduct and respect for others were demanded from all .", "The Directive endorsed the use of military law by commanders . Supplementary leaflets promoting the Directive were issued to every individual soldier . In addition , specific equal opportunities posts were created in personnel centres and a substantial training programme in LAW DATE was initiated .", "Every DATE PERSON Forces’ Bill goes through ORG and a ORG conducts a review in connection with that bill .", "NORP The report of ORG dated DATE noted , under the heading “ Homosexuality ” :", "“ That the present policy causes very real distress and the loss to the services of some men and women of undoubted competence and good character is beyond dispute . Society outside the armed forces is now much more tolerant of differences in sexual orientation than it was , and this may also possibly be true of the armed forces . Nevertheless , there is considerable force to the [ ORG ] argument that the presence of people known to be homosexual can cause tension in a group of people required to live and work sometimes under great stress and physically DATE , and thus damage its cohesion and fighting effectiveness . It may be that this will change particularly with the integration of women into hitherto all - male units . We are not yet persuaded that the time has come to require the armed forces to accept homosexuals or homosexual activity . ”", "The DATE ORG report ( produced after that committee ’s review of LAW ) referred to evidence taken from members of ORG and from homosexual support groups and to the ORG report . Once again , the committee did not recommend any change in the government ’s policy . It noted that , since its last report , a total of CARDINAL officers and CARDINAL persons of other rank had been discharged or dismissed on grounds of homosexuality . The committee was satisfied that no reliable lessons could as yet be drawn from the experience of other countries . It acknowledged the strength of the human rights arguments put forward , but noted that there had to be a balance struck between individual rights and the needs of the whole . It was persuaded by the ORG summary of the strength of opposition throughout the armed services to any relaxation of the policy . It accepted that the presence of openly homosexual servicemen and women would have a significant adverse impact on morale and , ultimately , on operational effectiveness . The matter was then debated in ORG and members , by CARDINAL votes to CARDINAL , rejected any change to the existing policy .", "DATE . Prior to DATE , applicants to the armed forces were informed about the armed forces’ policy as regards homosexuals in the armed forces by means of a leaflet entitled “ Your Rights and Responsibilities ” . To avoid any misunderstanding and so that each recruit to each of the armed services received identical information , on DATE the armed forces introduced a Service Statement to be read and signed before enlistment . Paragraph CARDINAL of that statement is headed “ Homosexuality ” and states that homosexuality is not considered compatible with service life and “ can lead to administrative discharge ” ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in the city of GPE . ORG ( “ the Government ” ) were represented by their Agents , PERSON PERSON and Mr PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant instituted proceedings in the Kyivskyi District Court of Donetsk ( hereinafter “ the ORG ” ) against his neighbours PERSON B. and Mr NORP seeking compensation for pecuniary and non - pecuniary damage . The applicant alleged that his flat had been flooded on a number of occasions due to the GPE negligence .", "On DATE ORG found in part for the applicant .", "On DATE ORG ( hereinafter “ the ORG ” ) quashed the decision of the first instance court and remitted the case for a fresh consideration . ORG", "On DATE ORG found in part for the applicant .", "On DATE ORG quashed the decision of the first instance court and remitted the case for a fresh consideration . ORG held that the first instance court had failed to take into account the instructions contained in its decision of DATE .", "On DATE the proceedings were resumed before ORG . Following the applicants request , the court ordered a forensic technical examination in the case .", "On DATE the hearings were resumed . The applicant lodged an additional claim , which he modified on DATE and CARDINAL DATE .", "On DATE ORG found in part for the applicant .", "On DATE ORG quashed the decision of the first instance court and remitted the case for a fresh consideration . ORG held that the first instance court had failed to determine whether Mr NORP had been liable for the damage caused to the applicant ’s flat , and to examine the grounds of the applicant ’s claim for compensation for non - pecuniary damage .", "On DATE ORG found in part for the applicant .", "On DATE the ORG upheld the decision of the first instance court .", "On DATE the panel of CARDINAL judges of ORG rejected the applicant ’s request for leave to appeal in cassation finding no appearance of any procedural or substantive omissions in the applicant ’s case ." ]

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[ "The applicants , PERSON , born in DATE , PERSON , born in DATE , PERSON , born in DATE , Mr PERSON , born in DATE , PERSON , born in DATE , and Mr PERSON , born in DATE , are NORP nationals and live in PERSON and GPE respectively . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE . Another applicant , PERSON , born in DATE , died on DATE . The second applicant became her legal successor . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the first , third , fourth , fifth , sixth and seventh applicants and CARDINAL other persons lodged an action for damages with the GPE - venkov ORG ( okresní soud ) against ORG ( ORG stavby , s.p . ) , a ORG owned company , requesting the court to order the defendant to cease operating a stone quarry and to pay them damages .", "On DATE ORG , following CARDINAL successive inheritance proceedings , admitted the second applicant , as approved heir , to the proceedings . On DATE the court decided that the fourth applicant was the legal successor of another original claimant who had meanwhile died .", "On DATE ORG discontinued the proceedings . On DATE the applicants appealed against this decision . It appears that the proceedings are still pending before the appellate court ." ]

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[ "A list of the applicants is set out in the appendix .", "CARDINAL .", "NORP The applicant , a NORP - Cypriot resident in GPE , entered into a contract to buy land in GPE from a NORP - NORP woman also resident in GPE . When the owner changed her mind about the agreement , the applicant brought proceedings to enforce the sale ; the owner brought a counter - claim to have the agreement declared null and void . The applicant was successful at first instance . By decision of DATE , ORG in its appellate jurisdiction reversed the lower court , declaring the agreement null and void and referring to the provisions of Law CARDINAL/CARDINAL which required the consent of the Custodian to transactions in NORP - Cypriot properties .", "The applicant invoked LAW No . CARDINAL and LAW as well as LAW and DATE .", "CARDINAL applicants , NORP - Cypriots , entered into an agreement to buy land in GPE from a person who had inherited it from his father , a NORP - Cypriot . By letter of DATE , the Custodian refused permission for the sale classifying the property as falling under LAW .", "The applicants invoked LAW No . CARDINAL .", "The second and third applicants , administrators of property of a deceased NORP - Cypriot , agreed to sell CARDINAL plots of land to the first applicant , company registered in GPE : ORG refused to accept the transfer on DATE . No court proceedings were taken as the applicants explained that such sales were declared illegal by ORG applying Law CARDINAL/CARDINAL .", "The applicants invoked LAW No . CARDINAL and LAW .", "The relevant laws , including LAW as amended in DATE , are set out in GPE and Others v. GPE ( no . DATE et al , § § CARDINAL , decision of DATE ) .", "NORP In its judgment of DATE in civil appeal no . CARDINAL/CARDINAL ( PERSON or ORG v. PERSON through his appointee by power of attorney PERSON ) , ORG held that , following the enactment of PERSON CARDINAL/CARDINAL , immovable property belonging to NORP who , from DATE , did not reside in the Government - controlled areas , came under the possession and administration of the Custodian and no legal act / transaction could be lawfully concluded / entered into in relation to the property without going through the Custodian or without his permission . This being so , all court proceedings concerning such property had to be brought against the Custodian and not against the NORP - Cypriot owner ( Section CARDINAL ( b ) of ORG ) . The court found therefore that the contract of sale and transfer entered into by the claimants concerning the property under custodianship was in breach of the provisions of LAW and was therefore illegal . The court also found that the contract was contrary to public policy as the contract interfered with the arrangements made by the ORG following the NORP invasion in order to protect NORP - Cypriot property and deal with the needs of CARDINAL of refugees . The court accordingly set aside the first - instance decision enforcing the sale contract and dismissed the action . It issued an order annulling the contract and the order of transfer that had been issued for the purposes of specific performance ." ]

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[ "The applicant , F , is a NORP national , who was born in DATE and is currently in prison in GPE . He is represented before the ORG by Mr PERSON , a solicitor practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant arrived in GPE ( “ GPE ” ) with a short - term visitor ’s visa issued by ORG in GPE . He did not claim asylum and was given leave to enter for DATE , stating that he was looking at colleges with a view to studying LANGUAGE .", "In DATE he was charged and convicted of theft and sentenced to CARDINAL days’ imprisonment . In DATE he was convicted of dishonest handling . Since he did not pay the fine , in DATE he was again arrested and committed to prison until DATE .", "In DATE the applicant began a relationship with Ms R , a NORP citizen . She had a baby in DATE .", "In DATE a deportation order was served at the applicant ’s last - known address . He had made no application to extend his leave to remain and was liable to deportation for overstaying . A further deportation order was signed in DATE and served on the applicant in DATE , when he was arrested . Ms R was now pregnant with their second child .", "On DATE ORG for ORG made detailed submissions to ORG on the applicant ’s behalf , requesting that he be granted leave to remain on the basis of his relationship with PERSON", "The applicant was interviewed by an immigration official on DATE . He claimed that his older brother had been executed and that he had been arrested in consequence and had fled to the GPE in fear of further ill - persecution . He appeared , however , unsure whether his brother had been a student or what he had studied . He claimed that his younger brother had avoided military service by jumping from a building and injuring himself . He also stated that he had no political affiliations at all in GPE and that , far from disagreeing with the regime in GPE , he had no quarrel with the PERSON regime . ORG official found the applicant ’s account of his relationship with Ms R to be “ fraught with discrepancies ” .", "In the course of a further interview on DATE the applicant alleged that , while the PERSON regime had confiscated some of his father ’s property and the applicant disliked it , he had never been involved in politics in GPE , belonged to any anti - government group or taken part in any demonstration . He again referred to his younger brother ’s avoidance of military service , his older brother ’s execution for anti - government activities , his own subsequent arrest and ill - treatment , and his release and flight from GPE . He had lied on entry to the GPE , saying he was married , whereas he had divorced in DATE . He confirmed at the end of the interview that he had never received threats from the NORP authorities . The report of the interview states that the applicant could offer no convincing reason why , if fear was the reason he left GPE , he had not applied for asylum in the GPE earlier . However , the applicant added that his long absence from the country and avoidance of military service would increase the risk of his having a “ bad time ” if returned .", "Ms R was also interviewed in DATE .", "On DATE the deportation order was revoked . ORG indicated in its letter of that date that the applicant “ did not appear to be more exposed to risk than any other NORP national as he appears to lack either the motivation or capacity to represent opposition to the regime . ” However , given his long standing relationship with Ms R , he was given exceptional leave to remain until DATE , when his position would be reconsidered . On DATE Ms R had their second child . Both children were placed for adoption on DATE . On DATE the applicant and PERSON married . No further request for an extension of leave to remain was received at ORG , although the applicant claims that Ms R had said that she would post his request .", "In DATE a full adoption order was granted in respect of the CARDINAL children .", "In DATE the police attempted to find the applicant . In DATE police enquiries revealed that Ms R and he were separated . In DATE the applicant was arrested on grounds of overstaying . In DATE he was convicted of overstaying and fined . ORG upheld his conviction but the applicant was not recommended for deportation .", "In DATE his solicitors made a late application for indefinite leave to remain on the basis of his marriage . While he and his wife were requested to attend on DATE for interview with immigration officials , the applicant attended ( with representation ) but Ms R did not attend . The applicant explained that they were living separately and that Ms R had serious alcohol problems but that he was hopeful of a reconciliation .", "On DATE the Secretary of ORG refused the application , as there was no evidence that the marriage subsisted , and issued a deportation order . The applicant had overstayed and had not made any application for an extension . He had been in GPE for DATE , most of the time without any legal authority . His alleged fears of returning to GPE had already been examined and dismissed and there were no compassionate reasons militating against deportation .", "The applicant appealed against this decision , arguing that he merited asylum . He was interviewed by an immigration officer on CARDINAL DATE and made general submissions which were largely the same as those made on CARDINAL DATE . He confirmed that he had never been politically active , but stated that a magazine published in DATE in LOC had indicated that he was wanted by the NORP authorities . He implied that his younger brother ’s injuries were not self - inflicted ( as previously maintained ) but had been inflicted by the NORP authorities . He still hoped to reconcile with his wife , although they were not in regular contact .", "On DATE the Secretary of ORG rejected the appeal : it was considered that the applicant had not demonstrated a well - founded fear of persecution and that there were no compassionate grounds warranting the grant of leave to remain .", "The applicant appealed to the Special Adjudicator ( “ SA ” ) . He gave evidence about his older brother ’s execution , the loss of his father ’s wealth to PERSON , and his own departure from GPE in fear . He said that he had not contacted ORG when he arrived as he had not known about political asylum . He also referred to the magazine where his name allegedly appeared as someone wanted by the PERSON regime . Although the hearing was adjourned for DATE to allow the magazine to be produced , the applicant could not produce it .", "On DATE the ORG dismissed his appeal . He found that the DATE deportation order had not been revoked because of the grant of asylum ( as the applicant had claimed ) but instead because of the applicant ’s relationship with PERSON He considered the various different versions of events presented by the applicant over DATE and found him generally to be lacking in credibility . Moreover , apart from his unproven and tenuous connection with his brother ’s political activities , the NORP authorities would have no reason to target the applicant . It could not be accepted that all NORP outside GPE would be pursued by the regime on their return . No compassionate circumstances appeared to exist .", "On DATE leave to appeal to ORG ( “ ORG ” ) was granted . The applicant has not submitted the ORG decision , although later correspondence from the Secretary of ORG indicates that the ORG refused his appeal on DATE . However , the Secretary of ORG re - considered following further representations on the applicant ’s behalf , and on DATE exercised his discretion to grant indefinite leave to remain on the basis of the applicant ’s marriage .", "On DATE the applicant was convicted of rape and assault occasioning actual bodily harm on an elderly neighbour . In finding that there were grave and aggravating features to the case , the trial judge sentenced him to CARDINAL years’ imprisonment . No deportation order was made . His sentence was reduced to DATE on appeal .", "On DATE the Secretary of ORG , finding that the applicant ’s continued presence in the GPE was not conducive to the public good , decided to deport him and to issue removal directions .", "The applicant appealed against the deportation order to the ORG on the basis of his good character ( he stated that “ since my arrival I have been of good character and adhered to the laws of the land ” ) , his responsibility to his children , his professional affairs in the GPE , the previous grant of leave to remain and his pending appeal against sentence . He challenged the removal directions on the basis that he had a fear of persecution : he had fled from GPE as he had been politically involved , he had been allowed to enter the GPE to seek asylum , he was still campaigning for asylum , he was still regarded as a subversive in GPE and his time in LOC would be badly regarded .", "On DATE his appeal to the ORG was rejected . He was found to be “ totally lacking in credibility ” and it was not believed that he had “ the slightest interest in politics in GPE or here ” . It was found that the CARDINAL brothers with whom the applicant remained in contact worked for ORG and that his older brother had been executed for fraud rather than any political activity . It was further noted that the applicant had a large family in GPE and that he had been convicted of a horrific offence in the GPE for which he had not shown the slightest remorse . It was true that the NORP regime was unpredictable and that any NORP having spent TIME in LOC was likely to come under some scrutiny . However , on balance , deportation was the right course .", "A deportation order was made on DATE . At the expiry of the applicant ’s prison sentence , fresh removal directions were set by the Secretary of ORG . The applicant ’s representatives appealed , invoking Articles CARDINAL , DATE and CARDINAL of the Convention .", "On DATE the Secretary of ORG rejected the application . He considered the applicant ’s record in the GPE to have been “ quite appalling , showing complete contempt for both immigration and criminal law ” . The applicant had formed remarkably few ties with the GPE and his claim to asylum had been considered and rejected on a number of occasions by the Secretary of ORG , the ORG and the ORG . There were no substantial grounds to believe that the applicant would be ill - treated contrary to LAW . On DATE the Secretary of ORG confirmed his decision to deport . The applicant appealed to the ORG on DATE .", "Following a hearing on DATE , by a decision dated CARDINAL DATE , the ORG rejected the appeal . The applicant ’s credibility had previously been found lacking , a finding confirmed by his answers to questions before the ORG . In particular , the ORG found it significant that the applicant relied before him on the suggestion that , if returned to GPE , he would tell the NORP authorities that he had left because he was an opponent of the regime - the SA observed that “ this suggestion beggars belief in view of the previous evidence ” . There was no evidence to suggest that the NORP authorities were aware or would become aware of the applicant ’s criminal record or that he would be at risk of double jeopardy , other sanctions or treatment in breach of LAW . There was no evidence that he would be prejudiced if the authorities discovered that he was a failed asylum seeker and there was no evidence that ill - treatment would result from any discovery that he had failed to complete his military service . Even if ORG and DATE had extra - territorial effect , his brief detention on return would not breach LAW there was no evidence to suggest that he faced criminal , political or other sanctions in GPE .", "The applicant applied for leave to appeal solely on the basis of the Bulletin of ORG ( “ CIPU ” ) dated DATE ( see the “ Domestic Law and Practice ” section below ) . Leave to appeal was granted on DATE . The ORG also had before it CARDINAL letters from ORG ( Near East and GPE department ) dated DATE and DATE , which provided an update on the position concerning the return of failed asylum seekers to GPE ( see below ) .", "On DATE the ORG dismissed the appeal . Although the history of the matter was “ a truly shocking one , as much for the sloth and lack of resolution displayed by ORG in the past as for [ the applicant ’s ] own downright wickedness ” , the ORG noted that it had to decide whether the applicant ’s return to GPE brought with it a real risk . The ORG found as follows :", "“ We have to say that there is nothing whatsoever in this case , apart from the existence of the [ CIPU bulletin ] , to suggest that [ the applicant ] would face any real risk of persecution or ill - treatment on return . The policy itself is not a blanket one , and allows for consideration of individual cases by a senior caseworker , which has been done here , resulting in the unusually coherent refusal letters of DATE and DATE . There is nothing to suggest that , if the loathsome crime the [ applicant ] committed here became known to the NORP authorities , he would face any form of double jeopardy for it there . Nor is there anything to suggest he would be regarded by them as any kind of political opponent : if he declared himself as such , as he had threatened , there is nothing to show that he would face any real risk of being taken seriously . The adjudicator was clearly entitled to reach the view he did , and we should have done the same ourselves . ”", "On DATE the ORG refused leave to appeal to ORG . His renewed leave application ( under LAW and in relation to the CIPU Bulletin only ) to a single judge of that ORG was rejected on DATE .", "His application to the full ORG was dismissed after a hearing on DATE , ORG finding as follows :", "“ What [ the applicant ’s representative ] says about the present applicant is that if the applicant is interrogated by the [ NORP ] security authorities , as the CIPU bulletin says he will be , there is , if not a likelihood , at least a risk that they will elicit from him the fact DATE he sought and was refused asylum in this country . This seems to me to be a possibility so remote as not to constitute an appreciable risk at all . The history of the applicant in this country is littered with good reasons for his removal , any CARDINAL of which will intelligibly explain his enforced reappearance in GPE DATE after his first arrival in this country . The immediate cause of his removal , and indeed the only active cause of his removal because of the extraordinary good fortune which he has previously enjoyed , is his deportation for the commission of a crime for which he has served a long punitive term . There is no reason why any other documentation should accompany him and every reason why the notice of deportation can accompany him and provide a perfectly intelligible explanation of his removal . If he wishes he can also draw attention to the fact that , but for the commission of that crime , he would have continued to be the beneficiary of indefinite leave to remain , of which there is also , no doubt , documentary evidence in his or his lawyer ’s hands .", "In those circumstances , there is nothing in the documentation to suggest that as a deported criminal the applicant faces any special risk of maltreatment . ... ”", "This document was entitled “ Enforced Removal of Failed Asylum Seekers ” and , in so far as relevant , read as follows :", "“ Summary", "In DATE ORG made representations to us in the specific case of a failed NORP asylum seeker where we had enforced his removal to GPE . It was said that this individual was arrested and imprisoned on return to GPE . A temporary hold was placed on further removals whilst we made further enquiries . ORG also produced a report DATE in which they said that , in addition to being detained , several returned asylum seekers have been subjected to serious human rights violations , including torture .", "On the basis of the information from ORG , ORG urged caution in returning failed asylum seekers to GPE . They also point to an incident in DATE concerning CARDINAL NORP nationals , who were extradited from GPE to GPE , CARDINAL of whom were killed on arrival at GPE airport .", "ORG advised that : any NORP returning to that country after an absence of DATE or more are subject to an interrogation by the NORP security authorities . Failed asylum seekers are routinely imprisoned by administrative ( as opposed to judicial ) order for ‘ having shown disloyalty to the ORG .", "In the light of this information we do not believe that we can at present safely enforce removals of failed asylum seekers to GPE . Any representation made under LAW against the removal to GPE of a refused asylum applicant , and based on information currently available in the public domain is likely to succeed . ORG has said that they do not expect a significant change in the human rights situation in GPE within DATE .", "New Policy", "As a consequence of the above it has been decided that a limited exceptional leave policy for failed asylum seekers from GPE will be introduced as follows :", "a. refused NORP asylum seekers to be granted DATE [ exceptional leave to remain ] .", "b. senior case workers to submit , to the Minister , advice on individual cases involving applicants who have been convicted of a serious crime and those subject to a recommendation to deport by the courts .", "c. there will also be close , ongoing monitoring of the situation , to facilitate a review of this policy in DATE or sooner if new information becomes available on the safety of return . ”", "This document , in so far as relevant , provides as follows :", "“ CARDINAL . Scope of Document", "This bulletin provides caseworkers with guidance on dealing with NORP asylum claims in the light of the announcement made by the Home Secretary on DATE regarding , inter alia , the use of Exceptional Leave to Remain in connection with unsuccessful asylum applications . This bulletin is publicly disclosable .", "Change in ORG [ Exceptional Leave to Remain ] policy", "In the past country specific ORG policies have been introduced where the general humanitarian situation would normally preclude removal . What this has meant in practice is that where asylum is refused , ORG has been granted routinely ( subject to security / criminal considerations ) without the particular circumstances of the individual ’s case being examined . The ORG Secretary has announced an end to these country specific ORG policies and that in future all cases will be decided on an entirely individual basis .", "GPE has been the subject of a country specific ORG policy that was introduced in DATE based on concerns about the safety of returning failed asylum seekers . In the light of the Home Secretary ’s announcement , that policy has now ended .", "If the circumstances of an individual case justify it , exceptional leave to remain should be granted . In cases where asylum has been refused , and exceptional leave has not been granted , appropriate enforcement action will be considered .", "The latest available country of origin information on GPE is contained in GPE Bulletin CARDINAL/CARDINAL issued on DATE . CIPU are in the process of preparing updated country of origin information and this will be issued shortly . In the meantime caseworkers and presenting officers will wish to have the CARDINAL documents attached to this Bulletin :", "Annex A : a letter from ORG dated DATE which addresses the issue of the treatment of returnees to GPE", "Annex B : a report of a ORG fact - finding mission to GPE conducted in DATE . ”", "This further bulletin indicated its purpose to be as follows :", "“ This Bulletin should be read in conjunction with the CIPU Bulletin of DATE , which provides caseworkers with guidance on dealing with NORP asylum claims . The guidance below updates the current casework directions on the return of failed asylum seekers to GPE . It replaces the previous directions set out in the CIPU Bulletin of DATE , which is now superseded by this bulletin and by the CIPU Bulletin of DATE .", "It explained the background to the CIPU Bulletin of DATE :", "“ In DATE ORG made representations to us in the case of a failed NORP asylum seeker where we had enforced his removal to GPE . It was said that this individual was arrested and imprisoned on return to GPE . A temporary hold was placed on further removals whilst we made further enquiries . ORG also produced a report DATE in which they said that , in addition to being detained , several returned asylum seekers have been subjected to serious human rights violations , including torture . The Foreign and ORG office advised at that time that any NORP returning to that country after an absence of DATE or more are subject to an interrogation by the NORP authorities .", "On the basis of the information from ORG , ORG urged caution in returning failed asylum seekers to GPE . They also pointed to an incident in DATE concerning CARDINAL NORP nationals , who were extradited from GPE to GPE , CARDINAL of whom were killed on arrival at GPE airport .", "In the light of this information we took the view that we could not safely enforce removals of failed asylum seekers to GPE . A limited exceptional leave [ to remain ] policy was instigated at that time . That has been superseded by the instructions in the CIPU Bulletin of DATE ”", "The bulletin went on to outline the current position to be as follows :", "“ The suspension of removals of failed asylum seekers to GPE is still in force . However it appears from the most recent advice from ORG and ORG issued by ORG authorities ( both attached to the CIPU Bulletin of DATE ) that the situation has moved on . We are trying to obtain further views and information and will issue these as soon as possible . ”", "The summary of this bulletin , headed “ Country Report by ORG ” , provided as follows :", "“ This bulletin circulates a country report on GPE by the NORP immigration authorities .", "The attached report at ORG translation ) has been prepared by ORG and published on the website of ORG of the GPE .", "The following is a summary of the report :", "NORP law prohibits opposition to the present regime . The human rights situation leaves much to be desired .", "ORG The NORP authorities ban international and local human rights organisations . The ORG office in GPE does not carry out any duties in respect of returning NORP asylum seekers . The NORP authorities have a co - operative attitude towards ORG . ORG has raised a number of human rights concerns about the treatment of NORP , including returned rejected asylum seekers .", "ORG opposition to the present regime has often been religiously inspired and has occurred above all in PERSON ( north - east GPE )", "ORG groups abroad ( mostly located in GPE and the GPE ) do not seem to form a united front .", "In the past opponents of the regime have been executed , including by public hanging . There is no recent information about the enforcement of the death penalty . The last officially known execution took place in DATE . CARDINAL leaders of the banned ORG arrested in DATE were sentenced to death in DATE , but the sentences were not carried out .", "Following the lifting of sanctions against GPE in DATE and the resumption of air flights the return of rejected asylum seekers is more practically possible .", "In DATE a number of incidents occurred where rejected asylum seekers returned from various countries received adverse treatment from the authorities . In DATE CARDINAL members of a group of CARDINAL deported from GPE were killed on arrival at GPE airport .", "There are strict controls on people leaving GPE .", "NORP who have been abroad for longer periods ( not specified ) are liable to be questioned by the NORP authorities on return . This applies to all NORP , not just rejected asylum seekers .", "Rejected asylum seekers are likely to be held for DATE on return . Rejected asylum seekers who are returned under escort are certain of arrest , temporary detention and interview . It may also happen that rejected asylum seekers are just interviewed briefly . As far as is known this practice has no repercussions . Cases are known of removed rejected asylum seekers who since their forced return have resumed living in GPE unhindered .", "There is an essential difference between the treatment of people suspected of opposition activities in or outside GPE and people who are not suspected of these . Suspicion of opposition activities is enough for longer detention and sentencing . Association with an opponent of the government is sufficient excuse to detain and interview . If a rejected asylum seeker is detained on return to GPE maltreatment or torture can not be ruled out .", "ORG Other countries policies The GPE ( CARDINAL ) , GPE ( CARDINAL ) and GPE ( CARDINAL ) had most asylum applications in DATE . CARDINAL rejected asylum seekers were removed from GPE in DATE , DATE and CARDINAL in DATE . The NORP authorities examine each case carefully and do not return people originating from eastern GPE . DATE CARDINAL rejected asylum seekers were removed from GPE . Subject to credibility most applications in GPE are approved . Of the other countries surveyed none had specific policies on GPE . The numbers of cases were very small . In DATE the GPE expelled CARDINAL NORP , CARDINAL of whom were rejected asylum seekers and CARDINAL non - asylum .", "ORG In DATE ORG took the attitude that care should be used in returning rejected asylum seekers to GPE . Asked about its present standpoint , ORG said it was engaged in working out its stance . ”", "This bulletin , headed “ Removal of Failed Asylum Seekers to GPE ” , stated as follows :", "“ This bulletin sets out the revised policy about return of rejected asylum seekers to GPE .", "CHANGE OF POLICY ON RETURN OF REJECTED ASYLUM SEEKERS", "In the light of advice from ORG , and information from other NORP countries who have produced country reports and carried out some enforced returns to GPE in DATE returns , it is believed that there is no longer a justification for the country policy first issued in the ( now defunct ) CIPU Bulletin of DATE .", "Asylum applications from NORP nationals should be carefully considered in the light of the country information recently issued to caseworkers . This includes standard reference , human rights and other relevant reports .", "The following documents should be particularly noted :", "CIPU Bulletin dated DATE . This bulletin notified the decision to end the country specific Exceptional Leave policy in respect of unsuccessful NORP asylum seekers . It also circulated advice from the Foreign and GPE office ( Letter dated DATE ) and a report of a ORG fact - finding mission to GPE conducted in DATE .", "CIPU Bulletin dated DATE circulating a country report of DATE by ORG official report on GPE / return", "Other previous CIPU Bulletins including those of DATE and CARDINAL DATE are superseded by this Bulletin . ”", "Early in DATE the ORG issued a further bulletin on GPE , which was confined to listing source material ( and providing electronic links to such material ) for caseworkers to consult when considering asylum applications . There was no accompanying Country Report offering commentary on the source material , opinion or policy , since Country Reports are currently compiled only for the top CARDINAL asylum - producing countries , of which GPE is not one .", "This letter was from LOC and ORG ( “ ORG ” ) of the ORG to the ORG and read as follows :", "“ CARDINAL . You requested an assessment of the current situation in GPE and the authorities’ likely attitude towards NORP nationals deported from GPE . I received a preliminary reply to this question in DATE , the burden of which was that the people concerned would not face serious difficulties in GPE , provided they had not been involved in anti - regime activities . This reply was by no means definitive .", "[ The GPE Ambassador ] had the opportunity to raise this issue with a senior member of ORG . He read to him the standard list of assurances that ORG seeks in such cases from the receiving country . He also explained CARDINAL cases in outline . The NORP official said that the CARDINAL names were not ones he recognised as having any political significance . He said that they seemed to be economic migrants who had committed crimes , and not people of any significance to the NORP security authorities . On that basis , they would not face difficulties ; indeed , they might not even be questioned .", "These comments are consistent with the information GPE has obtained from their Legal Adviser . It is impossible to be MONEY confident of the assurances we need , given the presence in GPE of numerous security agencies . Once a NORP is returned following deportation , we lose any ability to protect them . Travel documents might well highlight them for special attention by ORG . Moreover , there may be something in their record that turns up when they research the names of deportees .", "That apart , [ the GPE Ambassador in ] GPE has confidence in his contact ’s judgement . On balance , therefore , he believes it should be possible to recommend to ORG that serious ill - treatment is unlikely and that the men , in these cases , could be returned without a breach of LAW . ”", "CARDINAL of the individuals referred to in the second paragraph of that letter was the applicant in the case of A v. the Secretary of ORG for ORG ( cited below ) .", "The ORG of the ORG provided , by way of this letter to the ORG , a further assessment of the position of returnees . The letter is almost identical to that of DATE except that it added a preliminary sentence to the second paragraph which reads :", "“ The NORP authorities appear to take a slightly more relaxed view than they have done previously . ”", "It also excluded the reference to the CARDINAL specific cases to which the letter of DATE had referred and its last sentence was more general than that of DATE :", "“ On balance , therefore , he believes it should be possible to return certain categories of migrant without a breach of LAW . ”", "This letter was written by the ORG in response to queries from the solicitors for a NORP asylum seeker ( the applicant in the case of A v. the Secretary of ORG for ORG , see below ) , referred to the sources of the information in the ORG ’s letter of DATE . A general enquiry had been made by the ORG to the Deputy Head of Mission in GPE who replied , having consulted the Honorary Legal Advisor to the Embassy in GPE , that deportees would be questioned on return to ascertain whether :", "“ ( i ) they had acted against ORG while overseas by being a member of an opposition grouping or other such political activity and ( ii ) as to why they were arrested in the GPE . On the whole this would just be routine questioning and if there were no political context they would be quickly released . It was the [ Honorary Legal Adviser ’s ] considered opinion that a deportee would not face problems on their [ sic ] return if they had not been involved in political activities– even if they had claimed political asylum , as long as the individual were able to explain the reason behind any claim was based on economic or other [ ie . non - political ] grounds . The [ Deputy Head of Mission ] added that the embassy was aware of NORP asylum seekers who were at large in GPE . ”", "A second but more specific enquiry had also been made of the Ambassador in GPE . The person to whom the Ambassador had spoken was described as a “ very senior member ” of ORG , but it was said that it would be contrary to the public interest and diplomatic relations to identify that person in the relevant ORG ( “ ORG ” ) proceedings . The discussion had taken place in GPE . The reason for the Ambassador ’s confidence in that NORP official was that the Ambassador , a highly experienced diplomat , had had numerous dealings with him and trusted his judgment . Both of the individuals whose circumstances were outlined to this official had served prison sentences and had been recommended for deportation . The list of assurances which had been sought by the Ambassador included assurances that no - one should be detained unless there was due cause , or harassed or subjected to ill - treatment by the authorities or ill - treated in detention . If detained , they should have a hearing which would be fair and public , before independent and impartial judiciary in a civilian court . Arrangements would be made for access by ORG and independent medical personnel during any term of imprisonment .", "Prompted by a sharp increase in NORP nationals seeking asylum in GPE , ORG conducted a fact - finding trip to GPE DATE and DATE . Its findings were contained in its report dated DATE .", "As to the NORP intelligence services , the report noted :", "“ To ensure both the country ’s and PERSON ’s security , GPE has a highly active intelligence service that operates both in and outside the country . GPE ’s intelligence service comprises several individually independent agencies , which also monitor each other . It is claimed that many NORP constantly feel that they may be under surveillance , which causes a certain amount of fear and caution . The intelligence services’ procedures are not known , but probably take a wide variety of forms , e.g. physical surveillance , compulsory reporting for the various officials , monitoring through communication technology , mass media monitoring etc . It is well known that civil servants are constantly shifted within the administrations and executive departments where they work , to prevent strong , opposing alliances from forming that could threaten the regime . According to experts , this reshuffling of staff strongly contributes to bureaucracy and administrative inefficiency .", "Evidence strongly suggests a recent restructuring of the intelligence NORP methods . They now seem to be less generalised , instead focusing more directly on clearly defined opposition groups and individuals . This change may be a result of the regime wishing to project a more open and less repressive image , or possibly feeling less under threat at present . ”", "As to controls on those arriving in GPE :", "“ Fairly strict checks are also performed on individual travellers arriving in GPE . The control routines do not appear to be related to the duration and purpose of the visit abroad ( at least not at present ) . We were told that a blacklist is kept . Although it is difficult for outsiders to judge whether this is true , the possibility can not be ruled out . ”", "As to the deportation of NORP and their return :", "“ The NORP authorities can issue documents to facilitate onward travel or return to GPE . For instance , it is known that NORP authorities on GPE provide NORP with at least provisional travel documents to facilitate their journey . It is not known whether the NORP authorities have special criteria for travel documents in order for NORP to be allowed to enter or return to their native country . It is less likely that the possibility of deportation depends on the possession of certain documents . If a NORP returns without any documents whatsoever , it is natural that the NORP authorities should want to question him to find out the reason for this , and especially to ascertain whether he is actually a NORP citizen . ...", "When return or deportation is necessary in a particular case , the NORP should preferably be given the opportunity to contact the NORP authorities to gain the necessary documents for re - entry to GPE . Failing this , deportation without documents should also be an option .", "There is strong evidence that almost all NORP have passports and other documents , and voluntarily show them ‘ in a tight GPE ( this has been noted both by ORG and in certain other countries in several cases where deportation was necessary ) . In the case of deportation , escorting deportees all the way to NORP territory should be avoided as far as possible , and the NORP should thus normally make the final part of the journey alone . ”", "In its conclusions , the report noted :", "“ There has been a noticeable liberalisation and softening of NORP society in DATE , and this trend is still in progress . Possible contributing factors include GPE ’s strong desire to resolve the GPE issue and the related sanction policies , and the events of DATE in GPE .", "It has become significantly easier for NORP to travel abroad . It is now much easier to obtain passports , and exit permits are no longer required . Many ORG countries appear to have very generous visa policies with regard to NORP .", "The NORP authorities’ attitude and procedures do not appear to be linked to the duration or purpose of the stay abroad .", "The control procedures on entry/ exit for individual travellers remain strict .", "An application for asylum abroad will not , in itself , put a NORP at risk on returning to GPE .", "GPE has a sophisticated and active intelligence service , both inside and outside the country .", "The government is vigilant towards opposition against the regime , and particularly towards NORP fundamentalism . The intelligence services are increasingly favouring an individual rather than a general approach to political security issues .", "Political opposition and NORP fundamentalism appear not to exist in GPE , or are at least marginalised . There are several minor opposition groups outside GPE , particularly in the GPE and GPE . However , this opposition is divided , and does not currently appear to pose a threat to the regime . ... ”", "As to the forced repatriation of NORP and their treatment on return , the report stated as follows :", "“ CARDINAL NORP nationals - men , women and children - who had been detained in GPE without charge or trial for DATE following the DATE bombing of the Saudi Arabian National Guard training centre in GPE were forcibly returned to GPE in DATE or DATE ( see GPE entry ) . They were arrested following their arrival in GPE and their whereabouts at DATE were not known . ...", "A NORP family ... were forcibly returned to GPE by GPE in DATE allegedly because of ... opposition activities ... . The family had been granted refugee status in the GPE in DATE and travelled to GPE in DATE for the pilgrimage . [ Some members ] were released in GPE but [ CARDINAL family member ] continued to be held , reportedly without charge or trial , at DATE . ”", "As to the forced return of NORP nationals to GPE , the report noted :", "“ Forcible return of refugees", "Following the suspension of sanctions against GPE in DATE , refugees and asylum - seekers were at increasing risk of being forcibly returned to GPE . Some of those forcibly returned were detained and there were reports that some had been the victims of serious human rights violations , including torture .", "In DATE , CARDINAL NORP nationals suspected of being NORP sympathisers were forcibly returned to GPE by the NORP authorities .", "In DATE , CARDINAL NORP suspected of being NORP sympathisers were forcibly returned from GPE . [ CARDINAL of their ] applications for asylum were still under consideration when they were deported , while the other CARDINAL men were reportedly residing and working legally in GPE . Their whereabouts following their return to GPE were unknown . ”", "There was no specific mention of forced returns of NORP nationals or of the treatment on return of failed asylum seekers .", "In response to the present applicant ’s solicitor ’s query , ORG stated :", "“ Thank you for your query about ORG current position on the return of failed asylum seekers to GPE .", "ORG continues to be extremely concerned about the fate of rejected asylum seekers who have been returned to GPE following the establishment of air links .", "ORG has followed up cases of forcible return to GPE since DATE . In all cases followed by ORG we either learned that the returned asylum seeker had been detained upon return and remains in detention or we were not able to receive any information . In several cases ORG has received confirmed information that the forcibly returned persons were subjected to serious human rights violations including torture .", "In DATE , ORG expressed its concern about the decision by the NORP authorities to return CARDINAL NORP nationals to GPE . The people concerned had been detained in GPE on suspicion of being sympathisers of NORP groups . In DATE it was widely reported that CARDINAL of the men had been killed after their return . ORG I requested information from the NORP authorities concerning the alleged killings and detention , but received no response .", "In the case of the asylum seeker PERSON , who was rejected in the GPE and forcibly returned in DATE , ORG has obtained information that he was detained following his return to GPE . ORG has expressed concern about his safety in communications to [ ORG ] ( in GPE ) and to the NORP authorities DATE and has requested to be informed about any findings concerning his whereabouts . We have , to date , received no such information .", "It continues to be true that follow up of the situation of forcibly returned persons in GPE is very difficult . There are no independent human rights organisations existent in GPE , who could monitor cases of returnees . A climate of fear in GPE continues to prevent victims of human rights violations or their relatives from communicating information to the outside world , as they would be at risk of retaliation by the authorities .", "In DATE CARDINAL political prisoners , including CARDINAL prisoners of conscience detained since DATE , were released . What can be considered as a positive step needs to be considered with caution : their release was long overdue , and the general situation remains dramatic . According to ORG information , CARDINAL of other political prisoners reportedly remain in prison .", "In DATE , families of CARDINAL of prisoners were informed by the authorities that their relatives died in prison , but were not told the date or cause of death . Several cases of ‘ disappearance’ have still not been clarified . In DATE , CARDINAL possible prisoners of conscience were sentenced to death . Reports of torture continued to be received : no investigations are known to have been carried out . Legislation remains in force criminalising non - violent political activities and providing for unfair trials .", "ORG is concern that information about the history of cases of asylum seekers and overstayers in the GPE is readily available to the NORP authorities . In the eyes of ORG , making a refugee claim is an act of opposition , and any government opponent is at risk of being brutally punished . ”", "The most recent ORG on human rights’ practices in GPE was published on DATE . The report observes , in the introductory paragraphs , that :", "“ The country maintained an extensive security apparatus , consisting of several elite military units , including PERSON ’s personal bodyguards , local ORG , ORG , and ‘ ORG . The result was a multilayered , pervasive surveillance system that monitored and controlled the activities of individuals . The various security forces committed numerous serious human rights abuses . ...", "The Government ’s human rights record remained poor , and it continued to commit numerous , serious abuses . ORG did not have the right to change their government . PERSON used summary judicial proceedings to suppress domestic opposition . Security forces tortured prisoners during interrogations and as punishment . Prison conditions were poor . Security forces arbitrarily arrested and detained persons , and many prisoners were held incommunicado . Many political detainees were held for DATE without charge or trial . The Government controlled the judiciary , and citizens did not have the right to a fair public trial or to be represented by legal counsel . The Government infringed on ORG privacy rights , and citizens did not have the right to be secure in their homes or persons , or to own private property . The Government restricted freedom of speech , press , assembly , association , and religion . The Government imposed some limits on freedom of movement . The Government prohibited the establishment of independent human rights organizations and of free trade unions . ... ”", "Under the heading “ Exile ” the report stated :", "“ The Government did not impose forced exile as a form of punishment , and it continued to encourage citizen dissidents abroad to return , promising to ensure their safety . It was unclear whether such promises were honored . During DATE , the Government continued to repatriate family members of suspected citizens who were members of the terrorist group PERSON . Students studying abroad have been interrogated upon their return ” .", "The case concerned the proposed deportation to GPE of a NORP national and alleged supporter of the NORP movement PERSON GPE Al’Libya from ORG following the refusal of ORG ’s asylum application by the NORP authorities . ORG concluded :", "“ ORG has pointed out that none of the CARDINAL arrests to which the complainant was subjected , were related to his political activities . It also submits that the complainant would not have been able to have his passport stamped on his departure from GPE if he had been exposed to persecution at that time and that the ORG medical report provides no objective indication that he was subjected to gross outrages . Furthermore , the events that motivated the author ’s departure date far back in time and his family has not been sought or harassed on account of the complainant since his brother ’s release in DATE . ORG considers , on the basis of the information provided , that the political activities that the complainant claims to have carried out , are not of such a nature as to conclude that he runs a real risk of being tortured upon his return . Indeed , he does not seem to be particularly exposed to persecution by the NORP authorities . ORG has stated that NORP citizens who return to GPE DATE after their legal or illegal departure are frequently detained and questioned , but then released after TIME .", "On the basis of the above considerations , the ORG considers that the complainant has not proved his claim that there are substantial grounds to support his claim that he would risk torture if returned to GPE . ”", "The applicant in that case was a NORP national convicted of a serious sexual offence in GPE . He was granted asylum in DATE but was subsequently convicted of another serious sexual offence , following which he was served with a deportation order . The Secretary of ORG had formed the view that the conditions prevailing at the time in GPE allowed his removal . The ORG rejected A ’s appeal , finding that although asylum had been granted because it was feared that the NORP authorities would impute opposition to the regime from the appellant ’s failure to return earlier :", "“ However , there is no reason to suppose now that that is how the NORP authorities would see him . He would return as someone deported for having committed a serious crime , which would account for the fact of his return . He would have a ready and truthful account of why he had stayed in GPE DATE he was married on CARDINAL occasions to NORP citizens , the first marriage being in DATE before the call to return ; he had had CARDINAL children ; he had also served a substantial period in custody .", "This would put him in a better position vis - à - vis the NORP authorities than those who simply returned as failed asylum seekers because it would provide truthful reasons for his absence and his return . ”", "Moreover , it was correct to give “ very substantial weight ” to the assurances made in the above - mentioned ORG letter , given the high level of the Ambassador ’s contact and the Ambassador ’s judgement and experience in dealing with him . The ORG ’s decision continued :", "“ We also concluded that the background evidence permitted and supported the conclusion that , in this particular instance , [ A ] could be safely returned .", "The ORG letter of DATE referred to people seeking visas who had not returned immediately in DATE , most of whom did not appear to have had long term problems ; although this was his experience , there had been no monitoring and no numbers were provided . ORG refers to students generally being interrogated on return , but takes it no further than that and recognises the limitations on its sources .", "Returning failed asylum seekers became in effect refugees because they were interrogated , and imprisoned for showing disloyalty as shown by the DATE ] CIPU Bulletin and [ another domestic case ] . That general proposition is not removed by ORG . There is some but unspecific evidence to the contrary from the NORP mission . But there is another factor of importance . As we have said , [ A ] would not return as a failed , or indeed , successful asylum seeker ; he would return with a truthful story as to his marriages and imprisonment . Further , there is more specific guidance as to how failed asylum seekers or deportees might be treated in the letter of DATE from the ORG ... : a claim of asylum would not lead to problems if it could be explained as being based for economic or other non - political reasons . If the NORP discovered or assumed that such a claim had been made , in the absence of actions against ORG , detention for any length of time was unlikely . Asylum seekers at large in GPE were known to ORG .", "All this has to be set in the context of background evidence showing the continued detention of prisoners of conscience and the killing of some returned NORP asylum seekers . But the general picture is of a softening of political and social conditions , a notable drop in the number of political prisoners and an increased focus by the security agencies on specific opposition groups . [ A ] is not a member of any NORP group , which groups appear to be particularly targeted , nor is he a member of any opposition group . This is not to say that there is no risk ; it is rather that the specific assessment made for this Appellant is supported and not contradicted by the changing tone of the more recent background evidence . ”", "It is not known if A requested leave to apply for judicial review of this decision ." ]

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[ "The applicant is an NORP national , born in DATE and currently residing in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The facts of the present case , as submitted by the applicant , may be summarised as follows .", "A.", "On DATE the police arrested red - handed CARDINAL persons who were carrying out a robbery at a bank in GPE . A third accomplice had escaped .", "On DATE ORG attached to ORG requested that the applicant be remanded in custody on grounds that there was a serious indication of his guilt , the applicant having been identified on the basis of a video filmed during the robbery and recognised by QUANTITY police officers and by some others witnesses . Moreover , there was a significant risk that he would commit other similar offences , tamper with evidence , interfere with witnesses or abscond .", "On DATE the Judge for Preliminary Investigations of Terni issued a warrant of arrest against the applicant .", "The applicant was arrested and remanded in custody on DATE .", "On DATE the applicant requested the Judge for Preliminary Investigations to revoke the decision to detain him on remand , arguing that there was no serious indication of guilt . The evidence submitted by the applicant included declarations from CARDINAL of his colleagues stating that on DATE of the robbery he was at work , transporting goods on behalf of his employer , together with invoices and tacograph print - outs .", "On DATE the Judge for Preliminary Investigations rejected the application . Having found out that the tacograph of the truck was not functioning properly and the invoices had not been signed by the applicant , the Judge considered that the evidence submitted by the latter was not sufficient to eliminate the serious suspicion against him . Moreover , custody was the only way of preventing the risk of tampering with evidence or absconding .", "On DATE the applicant lodged an appeal with ORG against the decision of the Judge for Preliminary Investigations . The outcome of these proceedings is not known .", "On DATE , the CARDINAL persons charged together with the applicant made a statement to the effect that the applicant was innocent and implicated another person .", "On DATE the Judge of ORG revoked the remand in custody and the applicant was accordingly released , since further investigations had led to the implication of another suspect .", "On DATE , following the guilty plea of the latter , the Judge of Preliminary Investigations dismissed the charge against the applicant .", "On DATE the applicant filed a criminal complaint against the police officers who had recognised him “ beyond any doubt ” as the third person participating in the robbery and against ORG and the Judge of Preliminary Investigations who had remanded him in custody .", "B. Relevant domestic law and practice", "Articles CARDINAL and CARDINAL of the Code of Criminal Procedure set out the conditions of applicability of preventive measures , namely the existence of serious indications of guilt ( “ gravi indizi di colpevolezza ” ) in respect of a crime punishable with life imprisonment or detention for DATE .", "LAW sets out the grounds for preventive measures namely : prevention of interference with the course of justice ( LAW ) , danger of flight ( CARDINAL ) and prevention of crime ( CARDINAL.c )", "Under LAW of LAW , a person who has been detained in remand during a criminal prosecution is entitled to compensation if prosecution is discontinued or the accused is acquitted .", "Under LAW , a person whose detention on remand has been found , in a final decision , to have been ordered or maintained in breach of ORG CARDINAL or CARDINAL of the Code of Criminal Procedure is entitled to compensation . In a judgement of DATE , no . DATE , ORG sitting in Plenary held that , when an applicant is released while his appeal against the decision to put him in detention on remand is still pending , he still has an interest to pursue the appeal in order to obtain a final determination that his detention on remand was unlawful , and this for the purpose of obtaining compensation in pursuance of LAW ." ]

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[ "The applicant was born in DATE and lives in PERSON . The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the Modra municipality sued the applicant before the Bratislava - vidiek ORG . The plaintiff sought to have a contract of lease terminated in respect of a flat which had been earlier allocated to the applicant .", "DATE and DATE ORG scheduled CARDINAL hearings . The applicant did not appear . On CARDINAL occasions he informed the court that he was ill and on another two occasions he stated that his duties prevented him from attending the court hearings .", "On DATE a different judge was assigned to deal with the case . A hearing was held on DATE at which the applicant failed to appear . ORG therefore imposed a fine on the applicant as well as on a witness who had also failed to appear .", "At a hearing held on DATE the applicant appealed against the decision on a fine and he also challenged the ORG judge dealing with the case . The file was transmitted to ORG . On DATE the latter quashed the decision on the fine and refused to exclude ORG judge from dealing with the case .", "The file was returned to ORG on DATE . A hearing was scheduled for DATE . The court had difficulties in serving the summons on the applicant . On DATE the applicant requested that the hearing be adjourned as he was ill .", "On DATE the case was again adjourned due to the absence of the applicant . The court requested a doctor to submit information on the applicant ’s health . Both the applicant and the plaintiff ’s lawyer informed ORG that they could not attend a hearing scheduled for CARDINAL DATE .", "On DATE ORG decided to jointly deal with the above case and an action of DATE seeking termination of the applicant ’s contract of lease on a different ground .", "On DATE the applicant requested that a hearing scheduled for DATE be adjourned as he was ill .", "On DATE the ORG heard the parties .", "In the context of a reform of the judiciary the case was transferred to GPE ORG . The new judge received the file in DATE . In DATE she scheduled a hearing for DATE . On DATE the applicant informed the court that he was ill . The case was adjourned as both the applicant and the plaintiff had failed to appear .", "On DATE the applicant made a counter - claim .", "On DATE ORG heard the applicant . On DATE the applicant requested that a witness should be heard . Subsequently the case was transferred to a different judge .", "A hearing was held on DATE .", "On DATE and on DATE the case was adjourned due to the applicant ’s absence .", "On DATE the Bratislava III ORG dismissed the action . The decision became final on DATE .", "By a judicial decision which became final in DATE the applicant ’s former wife was ordered to pay a sum of money to the applicant .", "On DATE , on the applicant ’s request of DATE , the Bratislava - vidiek ORG started enforcement proceedings in which the sum due was to be obtained by means of selling the defendant ’s car .", "On DATE the defendant appealed . She alleged that she no longer owned the car in question . On CARDINAL DATE the appellate court upheld ORG decision on enforcement of the judgment in question . On CARDINAL DATE the new owner of the car requested that it should be excluded from the enforcement . In DATE the police withheld the documents relating to the car at the court ’s request .", "On DATE the court heard the persons concerned . The defendant submitted a sales contract concerning the car in question and informed the court that she had started paying the debt to the applicant . Subsequently the case was transferred to a different judge . On DATE the judge requested that the parties should submit further information and documents . The applicant was asked to specify , inter alia , the outstanding sum which the defendant owed him .", "On DATE the applicant informed the court that he did not agree to the instalments which the defendant had proposed to pay to him . On DATE ORG asked the applicant to submit further information including the sum which the defendant had already paid to him .", "On DATE a different judge was assigned to deal with the case . On DATE the case was transferred to another judge .", "DATE and DATE the file was submitted for examination to a judge dealing in a different set of proceedings with the applicant ’s claim for compensation against his former wife . On DATE the applicant requested that additional evidence should be taken .", "On DATE the case was taken over by GPE ORG as the Bratislava - vidiek ORG had ceased to exist .", "On DATE the President of GPE Court admitted , in reply to the applicant ’s complaint , that there had been undue delays in the proceedings . The letter stated that the judge dealing with the case had left the judiciary and that the vacant post had not yet been filled .", "On DATE the applicant informed ORG that the defendant had paid a part of the debt and specified the relevant sum . The court therefore discontinued the enforcement proceedings in respect of that sum .", "On DATE the Bratislava III ORG found that the claim for enforcement was inadmissible as the defendant had sold the car in question on CARDINAL DATE . The sum due could not , therefore , be enforced as claimed by the applicant .", "On DATE the Bratislava III ORG formally discontinued the enforcement proceedings which had been brought on CARDINAL DATE ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant married ORG In DATE ORG gave birth to their daughter , D.Z.", "In DATE , following a conflict between the spouses , the applicant moved out of their place of residence .", "On DATE the applicant requested ORG ( Sąd Rejonowy ) to regulate contact with his child .", "On DATE the ORG allowed the application and regulated contact with the applicant 's daughter . In particular , the court granted him the right to visit his daughter on given days of DATE and to spend DATE with her in DATE without the presence of the child 's mother .", "On DATE the applicant requested ORG to seize his daughter 's passport . He reasoned his request by a reasonable fear that ORG , who had many contacts in NORP countries , could try to take their daughter to GPE . It is unclear from the case file whether the request was granted .", "NORP On DATE , following an appeal by ORG , ORG ( PERSON ) upheld the decision of ORG of DATE .", "The court 's order was not enforced and therefore , on DATE , the applicant requested the court to impose a fine on his former wife .", "NORP In DATE the applicant 's former wife and their daughter moved from GPE to GPE , so the case file had to be transmitted to the court with jurisdiction there . The relevant decision was taken on DATE . However , the transfer did not take place until DATE .", "On an unspecified date ORG filed for divorce . The issue of the applicant 's visiting rights was therefore examined by the divorce court .", "On DATE the ORG gave a decision regulating the applicant 's contact with his daughter . In particular , the court granted him the right to visit his daughter every DATE TIME and TIME at a location other than the flat in which she lived with her mother . The applicant was also allowed to collect his daughter from kindergarten . The contact was to take place in the presence of a court officer ( kurator sądowy ) .", "The decision of DATE was not complied with by the applicant 's former wife , who prevented the applicant from exercising his visiting rights .", "DATE and DATE the applicant saw his daughter on CARDINAL occasions . A further CARDINAL meetings were cancelled for various reasons : CARDINAL for the daughter 's failure to appear , CARDINAL at ORG 's request , CARDINAL for the applicant 's failure to appear and CARDINAL for the guardian 's failure to appear .", "On DATE , relying on LAW , the applicant requested the court to impose a fine on ORG", "The applicant 's request was not examined by the court .", "In DATE the applicant 's former wife moved from GPE to GPE , so ORG transmitted the case file concerning the application for a fine to be imposed on ORG to ORG .", "On DATE the ORG gave a decision and gave ORG DATE to comply with the court order . At the same time the court conditionally imposed on her a fine of MONEY ( ORG ) in the event of default .", "ORG continued to prevent the applicant from exercising his visiting rights .", "On DATE the applicant again requested the court to impose a fine on his former wife .", "In the meantime , on DATE , ORG gave a new decision regulating the applicant 's visiting rights . The decision was similar to the previous one , but the court additionally obliged ORG to prepare the child to be picked up by his father on given dates ( przygotowania dziecka i wydania w terminie wyznaczonym ) .", "On DATE ORG granted a divorce . It also indicated the manner in which the parental authority should be exercised . The court made a residence order under which the child was to live with her mother , but the applicant was granted visiting rights , in particular the right to visit his child on given days of DATE , without the presence of the mother and the right to spend DATE , DATE and DATE with his daughter . The court also ordered that all decisions crucial for the child 's upbringing were to be taken by both parents .", "The judgment was not challenged by ORG", "ORG still did not comply with the court order . She prevented the applicant from collecting his daughter from kindergarten ( by instructing the staff not to let the applicant collect the child ) and organised the child 's holidays in such a way that she was abroad with her mother or grandparents for the whole DATE .", "On DATE the ORG imposed on ORG a fine of PLN CARDINAL for her failure to comply with the court 's order as regards the applicant 's visiting rights . The court also gave ORG DATE to make it possible for the applicant to exercise his visiting rights and held that , should she fail to comply with this order , another fine of FAC CARDINAL would be imposed on her .", "On an unspecified date ORG appealed against this decision and , on DATE the decision was upheld by ORG .", "NORP However , these decisions were once more not enforced .", "On DATE the applicant again requested the court to impose a fine on his former wife .", "On DATE the ORG again ordered ORG to pay the fine of PLN CARDINAL and gave her DATE to allow the applicant to exercise his visiting rights . The court also held that , should she fail to comply with its order , a further fine of ORG CARDINAL,CARDINAL would be imposed on her .", "On DATE , following an appeal by ORG , ORG upheld that decision .", "The court 's orders still remained unenforced .", "On DATE the applicant again requested the court to impose a fine on ORG", "On DATE the court fined ORG PLN CARDINAL .", "On DATE M.N. appealed against that decision . It is unclear from the case file whether the decision of DATE was upheld by the second - instance court .", "On DATE the ORG again regulated the applicant 's visiting rights and ordered that the contacts would take place in the ORG ( ORG ) in the presence of a psychologist , on DATE , TIME", "On an unspecified date in DATE the applicant requested the court to change the rules governing his contact with his daughter .", "On DATE the ORG gave a decision and regulated the applicant 's visiting rights , ordering that contact should take place on DATE between TIME and CARDINAL p.m. , outside the applicant 's daughter 's place of residence . The court also ordered ORG not to disrupt this contact .", "Both parties appealed against that decision .", "On DATE ORG extended the applicant 's contact with his daughter by ordering that it should take place TIME specified in ORG decision . The court dismissed ORG 's appeal .", "On DATE the ORG gave a decision and ordered ORG to fulfil an obligation imposed on her in ORG decision of DATE and ORG decision of DATE under pain of a fine in the amount of ORG CARDINAL .", "The applicant made several attempts to contact his daughter but , according to his submissions , the doors of the apartment where she lives were locked .", "On DATE the applicant requested ORG for assistance in establishing the current address and place of residence of his daughter .", "ORG submitted to the court a medical certificate indicating that she would not be able to appear before the court in person until DATE .", "According to the applicant , he is deprived of any contact with his daughter .", "DATE . On an unspecified date ORG tried to have criminal proceedings instituted against the applicant . She accused him of having sexually abused their daughter . According to an expert 's opinion the testimony of GPE had been influenced by a third party . The proceedings against the applicant were discontinued .", "The relevant domestic law concerning the enforcement of a parent 's visiting rights is set out in the ORG 's judgment in the case of P.P. v. GPE , no . CARDINAL/CARDINAL , § CARDINAL - CARDINAL , DATE .", "According to ORG resolution , if a parent who has been obliged by a court decision to respect the other parents ' contact rights refuses to comply with it , contact decisions are liable to enforcement proceedings . The provisions of LAW on enforcement of non - pecuniary obligations are applicable to enforcement of court decisions on parental rights or contact rights ( resolution of ORG of DATE , III CZP CARDINAL/CARDINAL , OSNCP CARDINAL DATE ) .", "“ CARDINAL . If the debtor is obliged to take measures which can not be taken by any other person , the court in whose district the enforcement proceedings were instituted , on a motion of a creditor and after hearing the parties , shall fix the time - limit within which the debtor shall comply with his obligation , on pain of a fine ( ... ) .", "If the debtor fails to comply with this obligation , further time - limits may be fixed and further fines may be imposed by a court . ”", "If the court obliges a parent exercising custody rights to ensure access to a child to the other parent , LAW is applicable to the enforcement of this obligation .", "Article CARDINAL of the Code of Civil Procedure provides as follows :", "“ In CARDINAL decision the court may impose a fine not exceeding MONEY ( ORG ) unless the fine had been already imposed CARDINAL times and this had proved ineffective . The total amount of fines in the same case may not exceed LAW ( ... ) . ”", "Article CARDINAL of the Code of Civil Procedure in its relevant part provides as follows :", "“ The court , while imposing a fine , shall at the same time impose an arrest in case the fine is not paid . DATE of arrest shall be equivalent to CARDINAL of fine . The total duration of arrest in the same case shall not exceed DATE . ”", "On DATE ORG , in reply to a legal question asked by ORG , adopted a resolution ( III CZP CARDINAL/CARDINAL ) which read as follows :", "“ Decisions regulating contact between parents and a child , ordering the parent who has the custody of the child to put the child in the disposal of the other parent and ordering the other parent to return the child ( to accompany the child back ) , are enforced in the proceedings regulated in DATE and subsequent of LAW ”", "Article CARDINAL of the DATE ORG ( ORG ) provides that if a person who is ordered to return a child does not comply with the court 's order , the court will instruct the guardian to forcibly remove the persons concerned ( przymusowe odebranie osoby ) .", "Under Article CARDINAL ,", "“ Upon a request of a court - appointed guardian , the police are obliged to help him or her to carry out the forcible removal of [ a minor ] . ”", "Article CARDINAL § CARDINAL provides as follows :", "“ If forcible removal of [ a minor ] is hindered because that person is in hiding or because other action is taken with the aim of stopping the enforcement of the order , the court - appointed guardian shall inform a prosecutor . ”", "Pursuant to DATE ,", "“ § CARDINAL The court - appointed guardian , in carrying out the removal of [ a minor ] , shall be especially careful and shall do everything to ensure that the well - being of the child is not damaged and that [ he or she ] does not sustain physical or moral harm . If necessary , the guardian shall request the assistance of the social services or another institution tasked with this function .", "§ CARDINAL If the well - being of [ a minor ] would be placed at risk as a result of the removal , the guardian shall stop the enforcement of the order until the risk is over , unless by stopping the enforcement , the person would be placed at greater risk . ”" ]

[ "8" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE ORG ( hereinafter “ the ORG ” or “ the Service ” ) informed a prosecutor that on DATE an officer at the ORG , PERSON , acting together with the applicant , who had been driving the car , and GPE , had committed a crime of fraud by simulating a car accident and later claiming payment from an insurance company .", "DATE the prosecutor asked the ORG to open a pre - trial investigation on suspicion of fraud , in accordance with LAW hereinafter “ the ORG ” ) ( see Relevant Domestic Law below ) .", "DATE the ORG opened the pre - trial investigation on the basis of LAW ORG .", "On DATE , at TIME , CARDINAL men , who introduced themselves as officers of the Service , went to the applicant ’s workplace , the “ LOC ” restaurant , in GPE city centre . From then on , the applicant ’s and the Government ’s versions of events differ .", "The applicant stated that the CARDINAL officers had asked her to accompany them and threatened to use restraining measures should she not comply . She had not been allowed to contact anyone by telephone , except for her supervisor . She had then been taken to the ORG car and driven to the GPE headquarters of the ORG . On arrival her handbag had been searched , her mobile telephone had been taken away and the officers had read her text messages . The officers had not returned the telephone to the applicant until DATE . Immediately after the search , the officers had started interrogating the applicant about the circumstances of the car accident of DATE . She had been threatened with loss of reputation , placement in a detention facility , conviction and loss of career opportunities , unless she gave them information necessary for the insurance fraud investigation . The officers had refused the applicant ’s request for a lawyer . They had also dismissed her request that a record be made of her questioning , saying that it was for them to decide “ what to write down and what not to ” . Likewise , the officers refused to explain to the applicant what her procedural status was at that moment .", "The Government did not dispute that the ORG officers had gone to the applicant ’s workplace at TIME on DATE . However , the Government submitted that no force or threats had been used against the applicant ; she had merely been invited to accompany the officers for questioning .", "According to the report of the applicant ’s provisional arrest , she was arrested at TIME . Even though the arrest took place while the applicant was at the FAC headquarters of the ORG , the arrest report specifies that she had been arrested “ at GPE international airport ” on suspicion of fraud . The report stated that it had been necessary to arrest the applicant because she might flee from the investigators or prosecutor , or commit further offences .", "The officers also made a record of the personal search of the applicant , which stated that the search had been conducted CARDINAL TIME on DATE .", "DATE the applicant was taken to a police detention facility ; her sister had been informed of her arrest .", "NORP The same day at TIME the ORG arrested GPE and questioned him , as a suspect , about the circumstances surrounding the car accident and the suspected insurance fraud .", "On DATE from CARDINAL to QUANTITY the ORG tried to question PERSON , as a suspect , about the car accident and insurance fraud , but PERSON refused to give any evidence .", "After further questioning as a suspect on DATE , PERSON testified that the car had been driven by the applicant , but denied any involvement in the insurance fraud .", "As it transpires from the report of the applicant ’s interrogation , on CARDINAL DATE from TIME , the ORG investigator questioned the applicant about the insurance fraud . At that time her procedural status was that of a suspect ; her lawyer was present at the questioning . The applicant refused to testify .", "DATE at TIME the ORG investigator decided to release the applicant , because “ there were no reasons to keep her under arrest ” . He noted that the applicant “ had been arrested on DATE on the basis of LAW .", "On DATE the applicant ’s lawyer complained to ORG that DATE his client had been arrested by the ORG officers in breach of LAW ORG . He also maintained that she “ had been questioned before being granted the status of a suspect ( nepareiškus PERSON įtarimo ) and forced to testify ” . The lawyer contended that the pre - trial investigation had not been within the ORG ’s competence and jurisdiction , as it was related to insurance fraud .", "On DATE ORG replied that the pre - trial investigation had been opened in accordance with the domestic law . The reply did not say that the decision could be appealed against .", "On DATE the applicant wrote to the ORG , ORG of ORG , the Attorney General and the Director of the ORG . She stated that on CARDINAL May at TIME , CARDINAL officers of the ORG had gone to her workplace at the “ LOC ” restaurant in GPE . She had been forced to leave with them , and had been taken to the ORG ’s GPE headquarters and questioned about the car accident . The applicant reiterated that the ORG officers had refused to record her questioning , had not explained her rights to her , and had not allowed her to make telephone calls . No one had answered her question whether she could leave ; nor had they explained what her procedural status was at that time . She had been threatened with conviction , placement in a detention facility , and the end of her career unless she agreed to confirm the ORG ’s account of the car accident . Relying on LAW , the applicant argued that her right to liberty had been breached . She maintained that the ORG officers had acted in an arbitrary fashion .", "By a decision of DATE , ORG found no flaws or abuse of powers in the actions of the ORG officers and refused to open a pre - trial investigation into their actions . The prosecutor noted that the applicant had been arrested on DATE at “ QUANTITY CARDINAL ” , as stated in the provisional arrest report . The following day she had been served with notice of suspicion of the crime of fraud and had been questioned as a suspect from TIME Therefore the applicant ’s allegation that she had been questioned without a record being drawn up was false . Lastly , the prosecutor held that it was only because of “ a technical mistake ” that the report of the applicant ’s arrest had specified her place of arrest as FAC .", "The decision stipulated that it could be appealed against to an investigating judge . The applicant did not appeal against the decision .", "On DATE and DATE , the applicant lodged complaints with ORG .", "On DATE the ORG found the applicant ’s complaint valid . He noted that under LAW of the ORG investigating officers had the possibility to call a person for questioning orally , without notifying him about it in writing . This could be done , for example , by a telephone call or via family members of the person invited . He stressed that the provision simply referred to the “ transfer of a message ( informacijos perdavimas ) ” that a person ought to come for questioning . However , in the applicant ’s case , on DATE at CARDINAL , the ORG officers had not merely conveyed a message to her , but had in fact taken her in [ by force , atvesdino ] or even arrested her . On this point the ORG also referred to the written reply by the Head of ORG to the effect that the officers who went to the applicant ’s workplace had demanded ( buvo pareikalauta ) that she go with them so that she could not contact the other suspects and thereby obstruct the investigation .", "In the same written reply to the ORG , the Head of ORG also said that once the applicant had been taken to their headquarters , she had told the officers that she knew nothing about the car accident ; accordingly , she had not been questioned as a witness . For the ORG , however , the ORG officers’ actions when trying to find out whether the applicant knew anything about the crime they were investigating had been nothing less than questioning . Such questioning had to be recorded in writing , in accordance with LAW ORG . Given that no record of questioning had been drawn up until TIME , the ORG considered that , until that time , the applicant had been held at the ORG headquarters without a reason , and thus unlawfully .", "The ORG further noted that CARDINAL TIME the applicant had been arrested on suspicion of having committed fraud and on the ground that she might attempt to abscond from the investigation . No sufficiently strong evidence had been submitted to him to justify the applicant ’s arrest . Furthermore , the prosecutor in charge of the investigation had not subsequently asked a court to sanction the applicant ’s detention . Lastly , for the ORG , there was no reasonable explanation as to why the fraud relating to the car accident should have been investigated by the ORG officers .", "Whilst conceding that it was not within his competence to assess the validity of the actions taken during the pre - trial investigation , on the basis of above considerations the ORG concluded that the conduct of the ORG investigators had had the sole aim of exerting psychological pressure on the applicant .", "The ORG also considered that the actions of the ORG officers had given rise to a suspicion that they had committed a crime . As a result , he notified ORG about the matter . The Minister of the ORG was also to be informed about the episode so that such incidents could be avoided in future .", "In their reply of DATE to a complaint lodged by the applicant on DATE , the ORG noted that the applicant ’s allegations about abuse of power by its officers when arresting her had already been dismissed by the prosecution . The officers who had taken part in the applicant ’s arrest and their superiors had nevertheless been urged to take into consideration the ORG ’s conclusions and to ensure that similar incidents were not repeated in future .", "By a decision of CARDINAL DATE , criminal proceedings against PERSON for insurance fraud were discontinued because of his death . For the same reason , proceedings against PERSON in respect of other charges pending against him ( for forgery of an official document and smuggling people over the State border ) were also terminated .", "By a ruling of CARDINAL DATE , the pre - trial investigation into the charges of fraud by the applicant was discontinued . The prosecutor noted that the applicant had been notified that she was suspected of the crime on CARDINAL DATE . However , she had refused to testify on those charges . Neither GPE nor ORG had confirmed the applicant ’s involvement in the crime . As the applicant and PERSON had been friends , it could be only assumed that she had known about the fraud . Yet , this mere assumption was not sufficient evidence to prove her guilt .", "On DATE the Vilnius City ORG found that ORG had committed fraud by simulating a car accident on DATE . However , the court relieved GPE of criminal liability as he had fully acknowledged his guilt and settled with the insurance company .", "The applicant instituted civil proceedings for the damage sustained as a result of her allegedly unlawful arrest and questioning . She argued that the ORG officers had exceeded their powers , because it was not within their competence to investigate crimes concerning road accidents . The applicant maintained that by being arrested at her workplace she had been humiliated in front of her colleagues and her reputation had been tarnished . Her arrest had been made public in the newspapers and on television . Her family and friends had learned about it , which had affected her relationship with them . The applicant maintained that on DATE she had been interrogated at the ORG headquarters and forced to incriminate herself . No lawyer had been present , her rights had not been explained to her and she had not been allowed to make a telephone call . She complained that her rights under LAW had been violated and claimed CARDINAL NORP litai ( LTL ) for pecuniary damage , LTL CARDINAL,CARDINAL for non - pecuniary damage and LTL CARDINAL,CARDINAL for litigation costs .", "At ORG hearing on DATE , the applicant ’s employer , the manager of the ORG restaurant , testified that on CARDINAL May he had received a telephone call from her . The applicant had explained that she had been arrested because of a car accident . He said that there were “ such stereotypes in society that after someone has been arrested , others regard them with considerable suspicion ” . CARDINAL waitresses who had been working with the applicant the day “ when the applicant was arrested ” testified that “ the applicant was taken away quickly ” , the officers “ showed identification of some kind ” and “ demanded that the applicant went with them ” , CARDINAL waitress had seen “ how the officers took the applicant with them ” . The applicant ’s colleagues also testified that the events had surprised them , and , although for DATE they had remained without a supervisor , “ there was no panic among the colleagues , but they asked each other what had happened . Everyone was interested to know what had happened ” . The applicant ’s lawyer maintained that his client had been taken from her workplace by force . He also argued that such actions in front of the applicant ’s colleagues had stained her reputation . The applicant had left her job DATE .", "On DATE ORG dismissed the applicant ’s claims . It found that the applicant had been suspected of having committed fraud and arrested for fear that she would flee from justice or commit new crimes . The ORG officers had jurisdiction in the applicant ’s case on the basis of the prosecutor ’s decision of CARDINAL DATE . The court also referred to the ORG ’s judgment in GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINAL-IV ) to the effect that the fact that the applicant ’s case had not gone to trial at a later stage did not mean that her arrest during the criminal investigation had been unlawful as such . The prosecutor ’s decision to discontinue the pre - trial investigation in respect of the applicant did not mean that the investigative measures had been unlawful , since the pre - trial investigation had been discontinued because of lack of evidence .", "The first - instance court noted that reports of the applicant ’s arrest and questioning as a suspect had been made “ after the applicant ’s arrest ” , although the court did not specify the exact time when the arrest had taken place . Moreover , as the applicant had conceded at the hearing , “ on DATE of her arrest ” she had been allowed to have a lawyer . Lastly , the court noted that the applicant ’s claims about her arbitrary arrest and questioning had been dismissed by the prosecutor and the ORG on CARDINAL DATE and DATE respectively .", "The applicant appealed , reiterating her complaint about abuse of powers by the ORG . In the applicant ’s view , it was not logical to have her arrested DATE after the car accident . The reason given to justify her arrest and detention – that she might hide from the investigators – had been even more preposterous given that there had been no evidence that she intended to flee . She invoked LAW .", "At ORG hearing of CARDINAL DATE the applicant ’s lawyer argued that his client had been arrested at her workplace and detained for DATE , partly in the ORG ’s GPE headquarters . She had been pressured to give evidence against PERSON The ORG officers had acted outside their jurisdiction .", "The representatives of the ORG , which was the defendant in the civil proceedings for damages , maintained that the ORG did have jurisdiction to investigate the crime of insurance fraud . The applicant had been arrested “ on CARDINAL May ” and charged with fraud “ on CARDINAL May ” . Above all , they stressed that the applicant had been merely “ invited ” to accompany the ORG officers when they had arrived at her workplace . No incidents took place at the “ LOC ” restaurant and the applicant had accompanied the officers calmly .", "By a ruling of CARDINAL DATE ORG concurred with the lower court ’s conclusion that the prosecutor ’s decision to discontinue criminal proceedings in respect of the applicant did not mean that her arrest had been unlawful as such . Moreover , the proceedings against the applicant had been discontinued because of lack of evidence and not for reasons of rehabilitation . The appellate court noted that the applicant ’s complaints that the ORG officers had abused their powers had been dismissed by the prosecutor . That being so , the court nevertheless emphasised that it had competence to hear the applicant ’s civil claim for damages , even though she had not appealed against the prosecutor ’s decision to drop the criminal charges against the officers . On this point it referred to ORG ruling in civil case no . CARDINALK-CARDINAL - CARDINAL/CARDINAL ( see paragraph CARDINAL below ) .", "ORG also held that “ on DATE the applicant had been arrested at QUANTITY ” According to the court , the applicant had not been arrested at her workplace ; the officers had merely “ invited ” her to go with them for questioning , in accordance with LAW of LAW . There was no evidence in the case file that by inviting the applicant for questioning in the manner regulated by the above provision , the ORG officers had breached the law . For the court , “ the fact that before arresting her , notifying her of the charges and questioning her as a suspect [ all at TIME ] , the officers had discussed with her the circumstances relating to a pre - trial investigation , without making a record of that conversation , did not disclose any unlawfulness , because a conversation [ between the applicant and the officers ] and questioning were CARDINAL separate notions ” . Accordingly , the appellate court dismissed the applicant ’s civil claim , which she had based on LAW and LAW .", "The applicant lodged CARDINAL appeals on points of law , which , on DATE and CARDINAL and DATE , ORG refused to examine as raising only questions of fact and thus giving no grounds for cassation .", "Article CARDINAL of the LAW of GPE provides that the freedom of a human being is inviolable . No one may be arbitrarily detained or arrested . No one may be deprived of his freedom , except on grounds and according to procedures established by law . A person detained in flagrante delicto must be brought before a court within TIME for the purpose of obtaining a decision , in the presence of the detainee , on the validity of the detention . If the court does not decide that the detainee should be arrested , he or she will be released immediately .", "NORP In an opinion of CARDINAL DATE , ORG held that LAW was in compliance with LAW .", "DATE LAW provides that a person suspected of committing a crime will be guaranteed , from the moment of his or her detention or first questioning , the right to defend himself and the right to a lawyer .", "Article CARDINAL of the Criminal Code provides for criminal liability for fraud . The offence is punishable by community service , a fine , restriction of liberty , arrest , or imprisonment for a term of DATE . A pre - trial investigation of the crime of fraud may be started only on the basis of a complaint by a victim or by a prosecutor ’s order ( LAW ) .", "The Code of Criminal Procedure provides that a witness is any person who has knowledge about circumstances relevant to a criminal case ( Article CARDINAL ) . A witness has the right to have an audio or video recording made of his testimony . He has the right to read the record of his testimony , make corrections and write his own testimony ( LAW and CARDINAL ) . Anyone called as a witness must testify before the pre - trial investigation officer , failing which he may be fined or arrested ( Articles DATE and CARDINAL ) .", "A prosecutor or an investigator may provisionally arrest a person caught in flagrante delicto . Provisional arrest is also possible if there is a reasonable assumption that the person may obstruct the course of justice by influencing other suspects or commit further offences . Provisional arrest may last up to TIME without the authorisation of a judge ( ORG and CARDINAL ) .", "The Code of Criminal Procedure also provides that any investigative measure , such as the questioning of a witness or suspect , must be recorded . The measure may be documented by audio or video recording or by other means . The record must be drawn up while the investigative measure is being taken ( tyrimo veiksmo metu ) or immediately thereafter . The record must state the place and time of the measure and the persons present . The investigating officer and all those present must sign the record . If the person in respect of whom the measure was taken refuses to sign the record , this must also be noted in the record ( LAW ) .", "Concerning the way in which a person may be called for questioning , LAW reads as follows :", "“ CARDINAL . A person shall be called for questioning by summons . The summons shall indicate : the person to be summoned and for what purpose , the place and to whom he is being summoned , the date and time when he has to appear , and the consequences of failure to appear , as provided for in LAW .", "A person may also be summoned for questioning by telephone or in any other way . In such cases , coercive procedural measures provided for in LAW may not be taken for failure to appear . ”", "The Code then defines the rules for questioning witnesses and suspects . Article CARDINAL of the LAW provides that before questioning a witness , an investigator must explain his rights to him under LAW and CARDINAL of the LAW , as well as liability for false testimony . The witness confirms that he has understood by signing the record . The investigator then asks the witness to tell everything he knows about the case . Lastly , the witness ’s testimony is recorded in accordance with LAW ( see above ) .", "Before questioning a suspect , an investigator must tell him what crime he is suspected of and explain his rights to him ( LAW . The suspect is then asked whether he confesses and is offered the opportunity to testify about the circumstances of the crime . As in the case of witnesses , his questioning is recorded in accordance with the requirements of LAW .", "The PERSON on ORG provides that when exercising the pre - trial investigation functions assigned to it , the ORG operates in the entire territory of ORG LAW ) . Upon receiving information that a crime may have taken place , a prosecutor decides which pre - trial investigation institution is competent to carry out a particular investigation , and assigns the case to it . Afterwards , the designated institution may take all the investigative measures provided for by LAW ( Articles CARDINAL and CARDINAL of that Code ) .", "As regards civil liability for damages , Article CARDINAL § CARDINAL of the Civil Code provides that damage caused as a result of unlawful arrest as a measure of oppression , from unlawful detention , or the application of unlawful procedural measures of enforcement , will be compensated fully by the ORG , irrespective of whether the officials involved in the preliminary investigation or prosecution were at fault . Article CARDINAL § CARDINAL stipulates that in addition to compensation for pecuniary damage , the aggrieved person is entitled to compensation for non - pecuniary damage .", "On DATE ORG ruled that LAW was a directly applicable legal norm . A court of civil jurisdiction could rely on it irrespective of whether the procedural measures which had allegedly caused damage to the plaintiff had been challenged in other [ criminal ] proceedings . Furthermore , even if in criminal proceedings it had been established that the measures taken by the pre - trial investigators had been lawful , a civil court was free to find that those measures had caused damage to the claimant if all the circumstances examined in the civil proceedings so proved ( ruling in civil case no . CARDINALK-CARDINAL - CARDINAL/CARDINAL ) .", "Concerning civil liability and redress , ORG , in a decision of CARDINAL DATE in civil case no . ORG - CARDINAL , held as follows :", "“ When deciding the question of redress within the meaning of LAW , ... the parties must prove all the circumstances by which they justify their claims , except where the claims are based on circumstances that [ do not have to be proven ] . These circumstances are listed in LAW . ORG has held that facts established by the decisions of the pre - trial investigation institutions ( prosecutors ) , contrary to those established by a court judgment or decision , are not binding ( prejudiciniai ) within the meaning of Article CARDINAL § § CARDINAL and CARDINAL of the Code of Civil Procedure ... Therefore , according to the statutory regulations and the case - law of the courts , the court deciding questions concerning the redress provided for by LAW , where the claim for redress has been lodged regarding a remand measure unlawfully imposed by a pre - trial investigation officer , may justify its findings with any factual data , on the basis of which it shall establish the circumstances substantiating the claims of the parties and other circumstances relevant for the resolution of the case ... ”" ]

[ "5" ]

[ "5-1" ]

[]

[ "5" ]

[ "5-5" ]

[]

[ "The applicant was born in DATE and is currently in GPE .", "On DATE the applicant arrived in GPE and DATE he requested ORG ( Migrationsverket ) to grant him asylum and a residence permit in GPE .", "The Board held a first interview with the applicant on DATE during which he stated that he was NORP ' NORP and came from a city in the south of GPE where his wife and CARDINAL minor sons remained . A smuggler had arranged for his travel to GPE and he had travelled all the way hidden in a lorry . He claimed that he had criticised the NORP government on several occasions and , the last time he had participated in a student demonstration to show his sympathy , he had been arrested . He had spent DATE in GPE prison and then been transferred to a prison in his home town where he had spent DATE . He had never been formally tried in court but DATE there had been a sort of religious trial where he had been put before a priest who had decided on his continued imprisonment . While imprisoned , he had been subjected to torture and still suffered from headaches because of it . He knew others who had participated in the demonstration and who were still imprisoned without trial .", "A complete asylum investigation was conducted by ORG on DATE where the applicant maintained his initial statements and essentially added the following . In DATE he had quit his job and returned to his village to work as a farmer . He had discussed with other villagers about the lack of human rights and freedom in GPE . TIME ORG ( a “ people 's militia ” , loyal to the Supreme Leader ) had come and destroyed his fields with a tractor . When he had tried to report the incident to the police , they had advised him not to , since it would lead nowhere . He had also expressed his opinion of the government when he had watched television in public places . ORG had later destroyed his car , thrown stones at his house and sent messages that he should stop his activities and “ information evenings ” . He had received the threats through a relative of his wife who worked for the regime . The threats had commenced in DATE but had become more serious after he had participated in his first demonstration in DATE . It had been a student demonstration and he had escaped when the police intervened . On DATE he had participated in his second student demonstration where he had been arrested because police had closed off all escape routes and had been filming the protesters as evidence . Many others had also been arrested . During the demonstration they had shouted slogans against the president and the government and demanded the release of student prisoners . In GPE prison he had been tortured . He had been stabbed twice in the thigh , boiling water had been poured over his chest and his captors had hit him with their fists . However , on DATE , he had been transferred to the prison in his home town . He had been planning to escape for DATE by being very co - operative with the prison guards so that he had earned their trust . The “ religious trials ” had taken place at a court outside the prison and the applicant had spoken with CARDINAL of his friends , who had visited him in prison to help him . On DATE he had been taken to the court and his friends had been there . He had worn his normal clothes under his prison outfit and he had not had any handcuffs as the guards trusted him . He had told the guard that he had to go to the bathroom , where he had taken off his prison outfit . In the meantime one of his friends had gone to start the car and another friend had spoken to the guard to distract his attention from the applicant . The applicant had then walked straight out of the court , got into the car and they had driven off . It had been a revolution court and there had been a lot of people . He had then remained hidden at a friend 's home for DATE while his friend had found a smuggler to help him out of the country . While he had been in hiding , his wife had been taken to the police twice for questioning about his whereabouts . His father had also been questioned . The applicant underlined that he was not , and never had been , a member of a political party or any organisation and that he had never been formally convicted of any crime . He was convinced that he would be executed if returned to GPE since he had escaped from prison and because he would be accused of having co - operated with those who are against ORG .", "The applicant further stated that he continuously suffered from headaches and sleeplessness and had problems with his legs . He submitted a medical certificate , dated DATE and issued by PERSON , a physician at a local health care centre . The certificate stated that the applicant had scars around both ankles , scars on the outside of both kneecaps and CARDINAL lateral scars on his left thigh . He also had a reddish area stretching from his neck down to his chest and when he yawned there was a loud clicking sound from the left side of his jaw . In the physician 's opinion , these injuries could very well originate from the torture to which the applicant claimed that he had been subjected in GPE , namely , that he had been chained around his ankles and suspended upside down for TIME , that boiling water had been thrown at his chest , that he had received blows to his head , jaw , abdomen and legs , and that he had been stabbed twice in the left thigh with a bayonet .", "On DATE ORG rejected the request . It first noted that the applicant had not claimed to have been a member either of an organisation or of a political party or to have had a leading role in the organisation of demonstrations . Moreover , the proceedings before the revolutionary courts were in general not open to the public . The ORG found that the applicant had not substantiated his story in any way and that he had thus failed to show that he had been , or would be , of interest to the NORP authorities . It therefore considered that the applicant would not attract special attention from the NORP authorities if he were to be returned to his home country . As concerned the ill - treatment and torture of which the applicant claimed to have been the victim , the ORG found that the medical certificate did not prove that he had been tortured even if the injuries documented could very well originate from the torture described . In its view , there was no reason to believe that the applicant would be subjected to ill - treatment or torture upon return to GPE . Thus , it concluded that the applicant could neither be granted asylum in GPE nor a residence permit based on humanitarian grounds .", "The applicant appealed to ORG ( Utlänningsnämnden ) , maintaining his claims and adding that CARDINAL of the inhabitants in his home town knew him since he used to be a football player . Moreover , he had been CARDINAL of CARDINAL organisers of the demonstration held in DATE . They had written the banners and decided which slogans to use . The other organisers , who were students and previously imprisoned critics of the regime , had also been punished . Following his escape , his wife had been taken in for questioning about his whereabouts on CARDINAL occasions and had been kept in detention on QUANTITY occasions . His father had been questioned on QUANTITY occasions and their home had also been searched on QUANTITY occasions . The applicant further claimed that he had been kept in an isolation cell for DATE of his detention . Furthermore , the public had access to hearings before the revolutionary courts and it had been relatively easy for him to escape since his friends had distracted the guards and he had thus been able to leave the building . Lastly , submitting CARDINAL medical certificates , the applicant invoked his deteriorating health as he suffered , inter alia , from depression and panic attacks .", "In DATE the applicant was informed that the case would be transferred to ORG ( Migrationsdomstolen ) for further proceedings , following the entry into force of a new LAW ( see below under LAW ) .", "On DATE ORG held an oral hearing . In response to his lawyer 's questions the applicant stated , inter alia , that he had participated in demonstrations critical against the regime since DATE and that , in DATE or CARDINAL , he had started to notice that his criticism was not appreciated . He had participated in yearly demonstrations , such as on women 's day and on labour day . Mostly he had participated in meetings on various LOC . A relative of his wife had been an official at the intelligence agency and thus he had been assured that nothing would happen to him . He had been CARDINAL of CARDINAL participants in the demonstration in DATE and he had played no special role , but it had been monitored by the authorities . He had been arrested and accused of being against ORG and the regime . In connection with a visit by his wife to PERSON prison while he was there , she had been detained for DATE and questioned about him . However , no other relatives had been summoned or questioned by the authorities . He had escaped when his friends had come to the revolutionary court for his hearing and had pretended to have a fight with each other so that he could go to the toilets to change . It had then taken him TIME to leave the building since there were no exit controls . In response to questions by ORG , the applicant claimed that he had organised demonstrations and that he had been CARDINAL of the leaders at the demonstration in DATE . He had been arrested because he had been in the front row and had shouted slogans .", "In a judgment of DATE , ORG , by CARDINAL votes to one , rejected the appeal . It first noted that the applicant appeared to have expanded his grounds for asylum by claiming that he had not just participated in demonstrations but had actually been involved in organising them . However , since he had not been a member of a party or an organisation which was critical of the regime , the court found it unlikely that he would be of any interest to the authorities in his home country if he returned . It further considered that the applicant 's account of how he had escaped from the revolutionary court was not credible , having regard , inter alia , to international sources which stated that insights into the functioning of the revolutionary courts were very limited . The court also noted that he had remained in GPE for DATE following his escape before leaving the country . Moreover , it found that the applicant had failed to show that he had been tortured in ORG and that his health problems were not of such a serious nature that he could be granted leave to remain on humanitarian grounds .", "CARDINAL of the CARDINAL lay judges dissented as he considered that the applicant had given a credible account of events and should be granted asylum as a refugee in GPE .", "On DATE the applicant appealed to ORG ( Migrationsöverdomstolen ) , maintaining his claims and stating that he was only telling the truth . He was also of the opinion that ORG had failed to take into account the medical certificate testifying to his torture injuries . He further requested some extra time in order to submit certain documents that his family had sent to him from GPE . The court granted an extension of the time - limit and , on DATE , the applicant submitted , among other things , CARDINAL summonses , CARDINAL to his wife and CARDINAL to his father , to appear before the revolutionary court in his home town on DATE to answer questions concerning the applicant and his escape from prison .", "On DATE ORG refused leave to appeal .", "The applicant was called to a meeting with ORG on DATE .", "On DATE , following a request by the applicant , the President of the ORG to which the case had been allocated decided , under LAW , to indicate to ORG that it was desirable in the interest of the parties and the proper conduct of the proceedings before the ORG not to deport the applicant to GPE until further notice .", "Following the request by the ORG , on DATE ORG stayed the enforcement of the deportation order until further notice .", "Upon request by ORG , the applicant submitted a forensic medical report dated DATE and issued by PERSON , specialist in forensic medicine at the Crisis and Trauma Centre at FAC . The report was drawn up on the basis of the protocols from the interviews with the applicant before ORG , the medical certificate by PERSON , a letter from the applicant 's representative dated DATE and the applicant 's own story as told to PERSON during his examination on DATE . The report contained photos of the scars together with a written protocol of all the scars and the medical record from the examination as well as Dr PERSON 's opinion .", "NORP The report noted that the applicant had claimed that he had been tortured in prison in DATE and that the torture had consisted of beating with fists , kicks , being hit on his kneecaps with rifle butts , having a bayonet stuck twice in his thigh , as well as being flogged , suspended upside down for prolonged period of times and having hot water poured over him . He further stated that , as a result of the torture , he suffered from chronic headaches , reduced feeling in his right thigh , reduced mobility of his jaw , reduced eye sight , an ulcer , pain in his knees when walking and medical problems with his thyroid gland and diabetes . Dr GPE examined the applicant and found numerous scars on his body .", "In Dr PERSON 's opinion , the injuries invoked by the applicant could very well have occurred in DATE as claimed and the scars observed on his body had the appearance and localisation which corresponded well with his statements of how they had appeared . For example , the scars on his kneecaps could well correspond to blows with rifle butts , the marks on the front of his shins from having been kicked with boots , the marks on his left ankle could have appeared as a consequence of having been suspended upside down by his ankles and the pigmentation on his neck corresponded well with a burn injury . In conclusion , PERSON noted that , in cases like this , alternative causes for the origins of the scars could not be completely excluded but that experience showed that self - inflicted injuries and injuries resulting from accidents normally had a different distribution to those showed by the applicant . The findings in the present case favoured the conclusion that the injuries had been inflicted on the applicant completely or to a large extent by other persons and in the manner claimed by him . Thus , the findings strongly indicated that the applicant had been tortured .", "The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) which replaced , on DATE , the old LAW ( Utlänningslagen , DATE ) . Both the old Aliens Act and the DATE Act define the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .", "Chapter CARDINAL , LAW , of the DATE Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) .", "As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .", "Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .", "NORP Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) . Hence , upon entry into force on DATE of the DATE Act , ORG ceased to exist .", "On DATE ORG of ORG PACE ) adopted a resolution on the situation in GPE in which it urged the NORP authorities to refrain from using force and violence against peaceful demonstrators and to release the CARDINAL demonstrators arrested since the elections on DATE as well as the CARDINAL politicians , members of their families and journalists detained . At its subsequent session in GPE , on DATE , ORG of the PACE , adopted a declaration in which it considered the violent reactions of the NORP authorities to peaceful protests to be a serious breach of NORP citizens ' human rights . It also called upon governments of other countries not to expel NORP citizens to GPE .", "In a report ( A/CARDINAL/CARDINAL ) of ORG Secretary - General on The situation of human rights in GPE , dated DATE , and presented to ORG at its CARDINALth session , it was noted that DATE had seen an increase in human rights violations targeting women , university students , teachers , workers and other activist groups , particularly in the aftermath of the elections in DATE . Hence , during DATE and DATE , several independent ORG experts as well as the Secretary - General had voiced grave concerns about the use of excessive police force , arbitrary arrests , killings , ill - treatment of detainees and the use of torture to obtain confessions . Moreover , a variety of cases suggested a widespread lack of due process , access to lawyers and the failure to respect the rights of detainees , including allegations that individuals had been placed in detention without charge and had been kept “ incommunicado ” . It was noted that no visits by any special procedure mandate holders had taken place since DATE .", "In its ORG DATE , ORG noted that respect for basic human rights in GPE continued to deteriorate and that the government showed no tolerance for peaceful protests or gatherings , routinely detaining participants and subjecting them to torture . The ORG and ORG continued to be responsible for many serious human rights violations . ORG , in its ORG DATE , made the same findings , also noting that demonstrations frequently led to mass arrests and unfair trials . Some were also detained without trial for long periods beyond control of the judiciary and were reported to have been tortured and denied access to lawyers and their families . ORG has repeatedly observed that trials before the revolutionary courts are not public . For instance , on CARDINAL August DATE , in its article “ Over CARDINAL NORP face grossly unfair trials ” , ORG noted that CARDINAL persons had gone on trial in GPE accused of organising widespread civil protests . The trial was held before ORG in GPE and it was closed to the public and even to the defendants ' lawyers .", "According to Sections CARDINAL.CARDINAL and CARDINAL of ORG on GPE , dated DATE , the pressure for democratic reform in GPE changed dramatically after the student protests at ORG in DATE . DATE on DATE event , students have gathered at ORG and other major campuses throughout the country and the date has been a flashpoint for violence and tension ( Section CARDINAL.CARDINAL ) . Thus , in DATE , CARDINAL of NORP took to the streets and CARDINAL people were arrested all over the country before and after the protests . Although many of them had since been released , there were still scores of students behind bars . Some of these had been in prison since they were arrested as a result of similar disturbances in DATE , DATE and DATE .", "Section CARDINAL of the U.K. Report further noted that in “ Evaluation of the DATE Country of ORG on GPE ” by PERSON PERSON GPE and Dr PERSON of ORG at ORG , dated DATE , it appeared that , if an NORP arrived in the country without a passport or any valid travel documents , they would be arrested and taken to a special court at FAC in GPE where the background of the individual , the date of their departure from the country , the reason for their illegal departure , their connection with any organisations or groups and any other circumstances would be assessed . This procedure also applied to people who were deported back to GPE , not in the possession of a passport containing an exit visa ; in this case ORG would issue them with a document confirming their nationality . Illegal departure was often prosecuted in conjunction with other , unrelated offences since the investigation into the facts surrounding the offence of illegal departure could result in the discovery of an underlying offence .", "ORG report FAC , Women and NORP , and ORG , ORG , ORG and Reporting , etc . , released in DATE , following a fact finding mission to GPE from DATE to DATE , stated that some of its sources had claimed that the granting of travel documents at an NORP embassy did not necessarily mean that the person would not face problems with the NORP authorities upon return to GPE . The person in charge of passport border control at the NORP FAC in GPE ( a newly built airport which had replaced GPE airport ) had explained that an NORP travelling on a laissez - passer was likely to be interviewed upon arrival in GPE and questioned about how he or she had lost the previous passport . However , if a person arrived in GPE on a travel document issued by an NORP representation and the security check had been completed at the embassy , the airport authorities would not check his or her identity . The authorities at the airport would , however , ask the person how he or she had left GPE , since there was no exit stamp in his or her new travel document . A source in GPE claimed that , if a person had left GPE illegally , he or she had not been registered in the computer system as having left GPE and therefore would be questioned upon return . It was added that a person who had left the country illegally could also be arrested if he or she had committed an illegal act before leaving GPE . It was further observed that a person on a laissez - passer , issued by an NORP representation abroad , might be fined for illegal exit or subjected to TIME interrogation ." ]

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[ "The names of the applicants , CARDINAL NORP nationals , are available for consultation in the ORG ’s file . They were represented before the ORG by PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicants , may be summarised as follows .", "The applicants are CARDINAL NORP believers , including the person who used to be their parish priest . For DATE until the impugned events they attended religious services at FAC in GPE .", "In accordance with the Statute of ORG ( “ the ORG ” ) , the “ temple ” is a legal person and part of ORG . It is governed by a church council , a body elected at a meeting of the parish and approved by the relevant eparchy .", "Some of the applicants are members of the church council governing ORG .", "Since DATE and until the events at issue the parish priest at GPE was PERSON , one of the applicants . In accordance with the procedure set out in the Statute of the Church , priests are ordained after approval by the respective eparchy and by ORG and elections conducted by secret ballot at a meeting of the parish .", "During the same period , by virtue of a decision of CARDINAL DATE of the FAC and FAC , Mr PERSON was also chairman of the church council at FAC .", "At the time of the impugned events , in DATE , the persons elected at a parish meeting held at DATE were the remaining members of the church council . The results of those elections were approved by the eparchy and registered at the FAC municipality in DATE , in accordance with LAW , which provided for such registration .", "For DATE after DATE of communism and the beginning of the democratic changes in GPE after , ORG ( “ the ORG ” ) was divided . CARDINAL groups of leaders claimed legitimacy and sought to unite the believers under their leadership . Over DATE , successive governments supported CARDINAL or other of the CARDINAL leaderships . Also , each group had supporters among the clergy and the believers . A number of churches and monasteries became known as “ belonging ” to “ the alternative ORG ” presided over by metropolitan ORG , since the ministers in those places recognised his leadership . After DATE , CARDINAL different versions of the Statute of the Church existed . Contradictory acts registering CARDINAL or the other central leadership were issued DATE and some of them were later quashed by the courts ( see for a detailed account of these events , the ORG ’s judgment in the case of ORG of ORG ( Metropolitan Inokentiy ) and Others v. GPE , nos . PERSON and CARDINAL , DATE ) .", "The applicants supported the “ alternative ORG ” presided over by FAC and did not accept the leadership of PERSON and the ORG presided over by him .", "On DATE the new Religious Denominations Act CARDINAL came into force . It provided , inter alia , for the ex lege recognition of ORG . It also introduced a provision which stated that the ORG “ is headed by ORG and is represented by ORG ... ” The LAW prohibited CARDINAL denomination carrying the same name and stated , in its transitional provisions , that persons who had seceded from a registered religious institution were not entitled to use its name or assets .", "On DATE the church council governing ORG in GPE gathered and adopted a decision declaring that the temple recognised the leadership of ORG presided over by FAC .", "On DATE PERSON , the leader of the “ alternative LAW , issued a decision which stated that PERSON L.Popov was reappointed as parish priest and chairman of the church council at ORG in GPE .", "On DATE several priests and other ministers led by Archimandrite PERSON , the PERSON of the FAC and Veliki Preslav Eparchy , entered the area around FAC and occupied it , refusing to let in members of the church council and the parish priest . They claimed that they were the true representatives of the ORG whose true head was PERSON .", "PERSON and some of the other applicants informed the police and the prosecuting authorities and requested urgent action .", "The district prosecutor initially issued a decision ordering the restoration of the situation but on DATE , CARDINAL DATE , having received a letter from the FAC and FAC , annulled his decision on the basis that urgent action was not called for . The decision of CARDINAL DATE was upheld on CARDINAL May and DATE by the regional and appeals levels of the prosecuting service on the basis that prosecutors should not intervene in an internal ORG dispute and having regard to the special procedure under Article ORG of LAW ( see below ) .", "On DATE Mr PERSON , acting as chairman of the church council governing ORG , submitted an application to ORG for an order under Article PERSON of LAW to recover possession of the temple . Under that provision the claimant had to prove that he enjoyed the possession of a real property and that the defendant had deprived him thereof secretly or through violence .", "On DATE the ORG delivered its decision dismissing the application . It reasoned as follows .", "As to the admissibility of the application , it noted that under LAW , a church council could initiate judicial proceedings only with the authorisation of the eparchy or , in cases of eparchies comprising CARDINAL sole parish and a sole priest , of ORG . In the case under examination the claimant had submitted a document demonstrating that ORG presided over by FAC had approved the church council ’s decision to bring the proceedings at issue . Given the existence of CARDINAL religious communities bearing the name ORG , as noted by ORG in its judgment of DATE ( as to that judgment , see ORG and Others v. GPE , cited above , § CARDINAL ) , it was unclear which leadership was competent to give the requisite authorisation . This lack of clarity should not , however , hamper the possibility for each of the CARDINAL communities to seek judicial protection . Therefore , the authorisation presented by the claimants was sufficient and the application was admissible .", "ORG accepted that the application was made on behalf of the local temple , which was a legal person under LAW , and that it had been made in the name of a local unit of the ORG governed by the “ alternative ” Synod .", "It noted , however , that PERSON had been appointed parish priest and chairman of the local church council by decision approved by the FAC and FAC , who had also approved other decisions of the same church council . ORG presided over by PERSON had certified that ORG was the head of the FAC and Veliki Preslav Eparchy . In these circumstances , contrary to what was claimed in the application , the claimant had not possessed the disputed property on behalf of the religious organisation presided over by FAC but for the organisation presided over by PERSON . Seeing that those who had entered and occupied the property belonged to the same organisation , it followed that there had been no deprivation of possessions .", "Upon the appeal submitted by Mr PERSON on behalf of the local temple , on DATE ORG annulled ORG decision and terminated the proceedings . The court noted that the claimant and the defendants belonged to the religious organisation of the NORP community in GPE . However , the State was not entitled to intervene in intra - religious matters and the courts were not competent to decide whether or not there had been a deprivation of possessions as in the particular circumstances the events concerned the manner in which the ORG governed its property . The courts could only deal with matters touching upon an internal conflict in a religious organisation if there was an issue of liability other than liability under canon law .", "The court further stated that even if it were accepted that the courts were competent to examine the application , it was in any event inadmissible . In particular , it was unclear whether it was made on behalf of the local temple as a legal person or on behalf of the church council which did not have legal personality separate from the temple and could not claim to have possessed the temple in its own name . That should have been clarified by ORG .", "Furthermore , there was no valid authorisation to institute proceedings , as required by Article ORG ) of the Statute of the ORG . Such authorisation could be issued by ORG solely in respect of eparchies comprising CARDINAL sole parish , which was not the case in the FAC and Veliki Preslav Eparchy . The authorisation in the particular case thus had to be issued by the bodies governing the eparchy . It had not been shown that such authorisation had been given .", "The decision of ORG was final and was not amenable to further appeal .", "In accordance with LAW of DATE , religious institutions are separate from the ORG . In its judgment no . CARDINAL of DATE ORG stated , inter alia , that the ORG must not interfere with the internal organisation of religious communities and institutions , which must be regulated by their own statutes and rules .", "LAW DATE governed the organisational structure and functioning of religious denominations between DATE and DATE . It provided that each religious denomination had to apply for registration and approval of its statute by ORG and to register its leadership with the ORG . The local leaderships were registered by the municipal authorities .", "In its judgment no . CARDINAL of DATE ORG , while agreeing that certain provisions of LAW DATE were clearly unconstitutional , found that it was not its task to repeal legal provisions adopted prior to the entry into force of the DATE LAW , the ordinary courts being competent to consider them superseded by LAW , which has direct applicability .", "LAW , which entered into force on DATE , provides for judicial registration of all religious denominations except ORG , which is recognised as a legal person ex lege . In accordance with paragraph CARDINAL of the transitional provisions , ORG need not be re - registered under LAW , unlike all other religious denominations .", "Section CARDINAL of the new LAW provides , inter alia , that ORG is a legal person whose structure is determined by its internal statute .", "Section CARDINAL provides that information about religious denominations , including the names of the persons representing them for all legal purposes , is recorded ( вписване ) in a public register at ORG . ORG has stated that this requirement applies to ORG ( judgment no . CARDINAL of DATE in case no . CARDINAL ; see also the same interpretation in other judgments : ORG , judgment of DATE in case no . CARDINAL , and ORG , judgment no . CARDINAL of DATE in case no . CARDINAL ) .", "Section CARDINAL provides that local religious leaderships must register with the relevant municipality .", "Section CARDINAL provides that the central leadership may decide to seek the registration of its local organisations as legal persons by applying to the relevant regional court .", "In accordance with the transitory and final provisions to LAW ( paragraph CARDINAL ) ) , local organisations which have obtained legal personality under the previous legal regime shall be registered ex officio at the respective regional court on request by the denomination ’s national leadership .", "In civil or administrative proceedings involving local units of religious denominations ( опред. № DATE от CARDINAL на ВАС по PERSON DATE ; oпред. № DATE от CARDINAL г. на PERSON по адм. д. № CARDINAL DATE ; реш. от CARDINAL по гр. д. № DATE г. на Районен съд GPE ; oпред. № CARDINAL от CARDINAL г. по гр.д. № CARDINAL/CARDINALг. на ВKC ; реш. oт ORG по гр.д. № CARDINAL/CARDINAL на GPE съд NORP ) , the courts have accepted such PERSON locus standi without proof of registration at the relevant regional court , reasoning that LAW CARDINAL recognised the continuity of legal status acquired under previous legislation ( see also , реш. № CARDINAL от CARDINAL на ВАС по PERSON № DATE and oпред. № DATE от CARDINAL г. на ORG по адм. д. № CARDINAL г. , where the same interpretation of the relevant law was implicit ) .", "In the initial period after the entry into force of LAW there was contradictory judicial practice on the question whether registration under section CARDINAL of LAW was needed in respect of local organisations of ORG . In its interpretative decision No . CARDINAL of DATE , ORG decided that local organisations of the ORG were not subject to the registration requirement , having regard to the special status of ORG as a legal person ex lege .", "An account of additional relevant domestic law and practice has been set out in the ORG ’s judgment in the above - cited case of ORG of ORG ( Metropolitan Inokentiy ) and Others v. GPE ." ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . The respondent Government were represented by PERSON , their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "Proceedings concerning the applicant ’s action against ORG and ORG", "On DATE the applicant lodged an action for protection of his reputation with the Bratislava I ORG . He claimed that a film concerning his person produced by the defendant company was defamatory .", "On DATE the action was transferred to GPE ORG for reason of jurisdiction . On DATE the Bratislava III ORG found that it lacked jurisdiction to deal with the case . On DATE the case file was submitted to ORG and on DATE the latter instructed GPE ORG to deal with the case .", "On DATE ORG held a hearing . The applicant submitted a document dated DATE by which he amended his action and explained that it was directed also against ORG . The case was adjourned as the presiding judge considered herself biased .", "On DATE the ORG excluded CARDINAL ORG judges from dealing with the applicant ’s case .", "DATE and DATE the ORG unsuccessfully attempted to obtain from ORG the file concerning criminal proceedings against the applicant which had been terminated earlier and which had given rise to the film in question . The file could not be submitted to ORG as it was needed in the context of examination of the applicant ’s request for re - opening of the criminal proceedings .", "On DATE the president of GPE ORG transferred the case to a different chamber .", "On DATE GPE ORG granted the applicant ’s request to extend the action and to consider also ORG as a defendant in the case .", "On DATE ORG held a hearing .", "On DATE ORG , a.s . informed ORG that it was the legal successor to ORG .", "On DATE and on CARDINAL DATE the applicant submitted to ORG the judgment delivered in the criminal proceedings against him and also a decision by which his request for re - opening of the criminal proceedings had been dismissed .", "On DATE ORG summoned the applicant ’s lawyer to an informative hearing . The lawyer appeared on DATE .", "On DATE a judge of the Bratislava III ORG heard the applicant ’s lawyer .", "On DATE the Bratislava III ORG discontinued the proceedings .", "On DATE ORG quashed the first instance decision .", "On DATE CARDINAL of the defendants informed the court that a different company owned the rights in respect of the film . On DATE the court requested the company concerned to submit a video - tape of the film . On DATE a representative of the company informed the court that the company did not possess the film .", "On DATE the case was adjourned as one of the defendants failed to appear .", "Subsequently the applicant requested that the case be transferred to a different court . ORG decision to dismiss this request was served on the applicant ’s lawyer on DATE .", "On DATE CARDINAL of the defendant companies informed the court that it had become bankrupt and requested that the proceedings be adjourned .", "ORG held hearings on DATE and on DATE . The case was adjourned until DATE . The proceedings are pending .", "Proceedings concerning the applicant ’s action against a publisher", "On DATE the applicant brought proceedings for protection of his reputation on the ground that a book published by “ PERSON - vydavateľstvo a nakladateľstvo odborárov na ORG ” contained defamatory statements in respect of his person . On CARDINAL DATE the applicant paid the court fees .", "Subsequently the GPE I ORG took several procedural steps with a view to obtaining the relevant documentary evidence .", "On DATE the judge invited the applicant ’s lawyer to specify which statements he considered defamatory . The applicant was further informed that the court could not proceed with the case as the criminal file concerning the applicant ’s case , which the ORG deemed necessary to consult , had been sent to ORG NORP and GPE .", "On DATE the applicant submitted further information to the Bratislava I ORG at the latter ’s request .", "On DATE the Bratislava I ORG suspended the proceedings as the file concerning criminal proceedings against the applicant was still being examined by ORG .", "On DATE ORG requested the latter to submit the criminal file to it . On DATE ORG replied that a complaint in the interest of the law had been lodged on the applicant ’s behalf in the criminal proceedings and that the case file had been submitted to ORG of the NORP and GPE .", "On DATE the president of the Bratislava I ORG assigned the applicant ’s case to a different judge . The latter received the case file on CARDINAL DATE .", "On DATE ORG requested the above criminal file . On DATE ORG replied that the file was about to be sent to ORG in the context of examination of the applicant ’s request for re - opening of the criminal proceedings . Subsequently the ORG reiterated the request several times .", "On DATE the Bratislava I ORG adjourned the case . On CARDINAL DATE the applicant submitted further information at the judge ’s request .", "A hearing scheduled for DATE was adjourned as the defendant could not attend . The applicant requested that the case be transferred to ORG . On CARDINAL DATE ORG dismissed this request .", "The parties failed to appear at a hearing scheduled for DATE .", "On DATE ORG adjourned the case as the defendant ’s counsel claimed that his client was not a successor to the company against which the applicant had originally lodged his action .", "On DATE the applicant ’s lawyer asked for access to the companies register with a view to establishing the relevant facts concerning the defendant . On DATE and on DATE the GPE I ORG judge requested the relevant file from the companies register .", "On DATE the applicant requested a change in the defendants .", "On DATE the case was assigned to a different judge .", "On DATE the applicant was requested to specify his claims . He replied on DATE . The proceedings are pending .", "LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .", "As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW which reads as follows :", "“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .", "When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of the failure to act , ORG may order that [ the authority ] which violated such rights or freedoms should take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order that such an authority abstain from violating fundamental rights and freedoms ... or , where appropriate , order that those who violated the rights or freedoms set out in paragraph CARDINAL restore the situation existing prior to the violation .", "In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . ” ...", "The implementation of the above constitutional provisions is set out in more detail in Sections CARDINAL of Act No . CARDINAL/CARDINAL ( LAW ) , as amended with effect from DATE .", "After that date ORG delivered a number of decisions in which it found a violation of LAW ) of the LAW , ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred .", "According to an explanatory letter by the president of ORG of DATE , nothing prevents ORG from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before ORG provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed ." ]

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[ "The applicant , is a limited company registered in GPE . It is represented before ORG Iwanier , a firm of lawyers practising in GPE . The respondent Government are represented by PERSON PERSON , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE , the applicant purchased , from the liquidators of an insolvent company , QUANTITY of land consisting of open fields in GPE and was registered as proprietor of the land at ORG . A neighbouring farmer , whose father had held a grazing licence over the land , had been using the land for grazing and for harvesting hay , without any right to do so , since DATE , but the applicant was unaware of this at the time of purchase .", "On DATE , ORG dismissed the applicant ’s claim to possession in respect of all but a very small portion of the land which had been used by the local council during roadworks . ORG found that the farmer had been in adverse possession from DATE and had remained so for DATE from that date , except in the case of the working area . As such , it considered itself bound by the decision in PERSON ( ORG Another [ DATE ] CARDINAL AC CARDINAL to order that the farmer be registered as proprietor of the land other than the working area .", "ORG dismissed the applicant ’s appeal on DATE for essentially the same reasons as those given by ORG . It held , inter alia , that there was no obligation in law for a squatter to draw the true owner ’s attention to the fact that time was running against him and concluded , as had ORG , that the farmer ’s activities on the land had been open and apparent .", "ORG refused the applicant leave to appeal to ORG on DATE . ORG refused the applicant leave to appeal on DATE .", "The domestic law on limitation and adverse possession is set out in ORG ( ORG v. GPE [ ORG ] , no . CARDINAL , § § CARDINAL , ORG CARDINAL,-" ]

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[ "The applicant is NORP citizen , born in DATE and resident in FAC , GPE . He is represented before ORG by PERSON , a solicitor practising in GPE .", "A.", "On DATE , the applicant was arrested for obtaining property by deception in connection with fraudulent claims against ORG ( ORG ) . He was subsequently charged with his wife of CARDINAL counts :", "Count CARDINAL : - Obtaining property by deception - dishonestly obtaining £ MONEY in unemployment and supplementary benefits and income support payments from the ... “ DHSS ” DATE by falsely representing that they were unemployed , not in receipt of income and had no capital savings .", "Count CARDINAL : - Obtaining property by deception - dishonestly obtaining £ CARDINAL,CARDINAL.CARDINAL in housing benefits from ORG DATE and CARDINALth DATE by falsely representing that they were unemployed , not in receipt of income and had no capital savings and fulfilled the requirements for eligibility for unemployment and supplementary benefits and income support payments .", "After committal for trial in DATE , the first pre - trial hearing was held in FAC on DATE . The applicant and his wife were jointly represented and pleaded not guilty . The applicant received legal aid for representation by solicitor and counsel .", "On DATE , at the second pre - trial hearing , counsel informed the court that he was unable , due to a conflict of interest , to represent both the applicant and his wife and that the applicant would have to instruct fresh lawyers . The judge ordered the defendants to serve their accountant ’s report on the prosecution within DATE . A problem with the payment of the accountant ’s fees was drawn to the judge ’s attention .", "On DATE , the applicant ’s counsel invited the judge at the third pre - trial hearing to express a view as to the necessity for an accountant ’s report , with a view to facilitating the request for legal aid for this purpose . The judge declined , expressing the view that the issues in the trial as to whether the applicant had income and if so , was he dishonest in representing to the authorities that he had none , did not require an accountant . The trial was listed to be heard on DATE .", "ORG , on a date unspecified , refused to grant legal aid for an accountant ’s report . The applicant has not provided the decision . Correspondence prior to the decision included a warning by ORG that legal aid would be limited to the fees set in the relevant guidelines and that any further amounts would have to be justified on submission of the bill .", "On DATE , the applicant ’s counsel applied to the trial judge for an adjournment for DATE to permit the applicant to apply for a loan to pay for the report , have the report prepared and served on the prosecution . The application was refused , the judge not being satisfied from counsel ’s submissions that there was at least an arguable defence that would be supported by such an accountant ’s report .", "On DATE , without warning his lawyers , the applicant did not appear in court . He provided a letter which stated that he could not have a fair trial without an accountant and gave his reasons for that belief . After some deliberation , the judge decided to proceed with the trial in his absence . His counsel continued to represent him .", "In summary , the evidence proved that the applicant ’s wife had “ signed on ” DATE on the family ’s behalf , representing that she and the applicant were unemployed , had no income , capital or savings or property apart from the family home . The prosecution also presented evidence to show that during the relevant period the applicant was working and did have some income , savings and capital .", "On DATE , the applicant and his wife were convicted . Sentence was adjourned until DATE . On DATE , his wife was present and represented . The applicant still did not attend . The applicant was sentenced to CARDINAL years’ imprisonment and his wife to CARDINAL months’ imprisonment . Joint and several compensation orders were made for repayment of the benefits , plus interest .", "On DATE , a single judge of ORG refused leave to appeal . On DATE , leave was granted by the full court . The applicant argued that the counts against him were duplicitous as they purported to cover a single “ obtaining ” of property whereas in reality they covered multiple “ obtainings ” . He also argued that the trial should not have continued in his absence and that he should have been granted an adjournment to obtain an accountant ’s report .", "On DATE , the appeal was heard before ORG . It dismissed the appeal against conviction but reduced the applicant ’s sentence to DATE .", "In respect of the applicant ’s counsel ’s arguments that the counts against him were duplicitous , ORG held that it was not duplicitous in form . Any duplicity in substance could have been discovered at or before the trial by requiring particulars from the ORG and if duplicity was shown , a motion to quash the indictment could have been moved . No such step had been taken by counsel and it was not being submitted by counsel at the appeal that trial counsel had been flagrantly incompetent in not doing so . The allegation that defence counsel had erred in failing to taking a particular step was not sufficient . It may indeed have been counsel ’s view that this method of proceeding was simpler and to the applicant ’s advantage .", "As regarded the refusal of an adjournment and the applicant ’s refusal to attend without an accountant , ORG noted that “ the trouble was that the fee that ORG was prepared to pay to cover the accountant for legal aid was not nearly as much as the accountant wanted and the < applicant > was reluctant to have any other accountant . ” It referred to the views of the judges at the pre - trial hearings that the case did not require an accountant . For the applicant to say that if the court did what he wanted he would come to court but that if it did not he would not was totally unacceptable behaviour . ORG found no irregularity in the judge ’s refusal to order legal aid for an accountant of the applicant ’s choice . The applicant had been “ utterly pigheaded ” and refused to instruct any other accountant . It was also not apparent , if he could obtain an accountant from his own resources , why he waited until DATE to request a DATE adjournment for that purpose . Counsel had been unable to point to any steps taken DATE and DATE to obtain an accountant ’s report .", "The applicant ’s application to appeal to ORG was dismissed on DATE ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms PERSON and PERSON , lawyers practising in GPE with PERSON . They were assisted by PERSON and PERSON , counsel .", "The applicant is a football supporter who was arrested and charged with participating in a riot during the European Football Championships in GPE in DATE . He was tried on DATE by ORG , DATE after his arrest . The applicant claims that he had TIME with his legal representative before the hearing ; that he did not understand the nature of the charge against him ; that there were just CARDINAL interpreters for CARDINAL defendants ; and that the case proceeded by way of dock identification by the NORP police .", "The applicant was convicted and sentenced to DATE in prison . However , the sentence was not enforceable for DATE or until any appeal was heard . The offence was also one for which bail had to be granted pending appeal . Pursuant to a temporary organic law ( no . QUANTITY ) , which had been put in place to deal with trouble during the football championships , the applicant was permitted to leave the country under an order for voluntary departure .", "The applicant wished to appeal against his conviction and sentence and he and his lawyer intimated this intention to ORG . The appeal was not admitted due to a failure to submit proper grounds for appeal . In consequence , the applicant ’s sentence became final . The applicant maintains , however , that proper grounds were submitted . No immediate action was taken to enforce the custodial sentence .", "In DATE , the GPE authorities sought to impose football banning orders ( civil restraining orders that prevent individuals from attending football matches in GPE or from travelling abroad to watch international football matches ) on those , including the applicant , who had been convicted of involvement in riots at the European Championships in GPE . However , on DATE , following a hearing that lasted DATE , a district judge refused to grant the banning orders , holding that the convictions were “ obtained in circumstances that were so unfair as to be incompatible with the applicants’ right to a fair trial under LAW [ of the LAW ] ” . In reaching this finding , the district judge relied heavily on the oral evidence of an NORP police officer , PC PERSON , who had attended the trial in GPE as an observer .", "In DATE , the NORP authorities made a request to ORG that the applicant should serve his outstanding sentence in a GPE prison . This request was refused as the GPE authorities would only consider executing a foreign sentence within the scope of the CARDINAL Convention on ORG , which would have required the applicant to have been serving a sentence in GPE at the time of the request .", "On DATE , the NORP authorities issued NORP Arrest Warrant , requesting the applicant ’s extradition to GPE , which was certified by ORG ( “ SOCA ” ) on DATE . The applicant was arrested on DATE , brought before City of ORG and granted conditional bail . An extradition hearing took place in DATE before the Senior District Judge . The applicant ’s representatives did not call any live witnesses , instead relying on the findings of the judge at the banning order hearing . In his decision , handed down on DATE , the Senior District Judge granted the extradition order . He held that , although the earlier judge ’s findings were persuasive , they were not binding on him . Having examined a written note of the trial , the Senior District Judge concluded that the proceedings in GPE had not been unfair within the meaning of LAW . He noted that the applicant had been represented by an experienced lawyer who was representing just CARDINAL other client and that an interpreter had been present throughout the trial . The applicant ’s lawyer was able to cross - examine witnesses and address the court , and the applicant was able to give oral evidence . The Senior District Judge also noted that the applicant could have requested postponement of the trial for DATE , which he had not done .", "The applicant sought to appeal the Senior District Judge ’s decision to ORG . However , the applicant ’s representatives at the time failed to file and serve notice of appeal to ORG within the statutory period of DATE and , on DATE , ORG held that it had no jurisdiction . Thereafter , the applicant instructed new solicitors who applied for the extradition hearing to be re - opened . On DATE the Senior District Judge found that he had no jurisdiction to do so . The applicant sought judicial review of that decision and , at the same time , issued judicial review proceedings against SOCA in respect of its decision to enforce the extradition order .", "These judicial review applications were heard together in ORG on DATE and dismissed in a written judgment handed down on DATE . ORG held that , although the applicant had suffered an apparent injustice , it had no power to act . The injustice did not stem from the unfairness of the hearing ( which was disputed ) , but from the successive failures of the applicant ’s lawyers . Nonetheless , it went on to indicate a hope that this ORG would grant an interim measure under LAW .", "On DATE the applicant commenced further judicial review proceedings , alleging that it would be unlawful to extradite him while the present application was pending before this ORG against GPE . On CARDINAL DATE , ORG granted an interim injunction against extradition pending the hearing of the judicial review application .", "On DATE the applicant ’s representatives at the time lodged an application with this ORG against GPE ( no . CARDINAL ) . The applicant alleged that the NORP trial had been unfair on CARDINAL grounds : the applicant had had insufficient time adequately to instruct a lawyer and prepare his defence ; the trial had taken place so quickly that he had been unable to retrieve ORG footage , which would have given him an alibi ; he had no time to trace witnesses who would have supported that alibi ; the quality of the interpretation at the trial was so poor he did not understand the nature of the charge and could not follow the proceedings ; and the temporary organic law did not provide adequate protection for the rights of the defence .", "On DATE , a Committee of CARDINAL Judges declared the application inadmissible . It found that the final domestic decision within the meaning of LAW had been given on DATE , DATE before the date on which the application had been submitted to the ORG .", "The present application was lodged against GPE on DATE . On DATE the applicant wrote to the ORG , bringing an application against GPE and requesting an interim measure under LAW to prevent his extradition by GPE authorities to GPE . He further requested first , that the ORG indicate to ORG that they should not request his surrender until his substantive application to the ORG had been heard and second , that the ORG indicate to ORG that they should withdraw ORG or issue a fresh warrant thereby allowing proceedings in GPE to recommence .", "On DATE , the Fourth Section of the Court ( to which the application had been allocated ) decided that , in light of the interim injunction given by ORG on DATE , there was no current risk that the applicant would be extradited from GPE and it was inappropriate to determine the Rule CARDINAL requests at that stage .", "On DATE the High Court gave judgment on the application for judicial review that had been lodged on DATE . It lifted the injunction which it had given on DATE . ORG found that it had no power to prevent an extradition merely because an application had been made to ORG .", "On DATE the Acting President of the Section decided to apply Rule CARDINAL of ORG and to indicate to ORG that the applicant should not be extradited to GPE . That decision was taken to allow the Section to consider the applicant ’s Rule CARDINAL requests . On DATE , the Section decided to lift the interim measure previously indicated to ORG . It also decided to refuse the Rule CARDINAL requests made in respect of ORG .", "On DATE the applicant commenced further judicial review proceedings in GPE . He argued that his extradition would be incompatible with LAW , relying on email correspondence from NORP consular staff in DATE , which recorded their understanding that , because the applicant ’s sentence was DATE , his deportation meant he would not have to serve his sentence in GPE . The judicial review application was refused on DATE . ORG found that there was nothing in the emails which had not been before the Senior District Judge . It also found that it could not intervene to prevent extradition pending the outcome of an application to this ORG when the applicant would not suffer irreversible harm as a result of the extradition and when this ORG had already refused the applicant ’s Rule CARDINAL request .", "The applicant was extradited to GPE on DATE ." ]

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[ "The applicant , PERSON van GPE , is a GPE national , who was born in DATE and lives in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .", "In DATE , DATE and DATE the applicant 's name appeared in various criminal investigations that were being conducted . On DATE a preliminary judicial investigation ( gerechtelijk vooronderzoek ) was opened against the applicant on suspicion of narcotics and other drug related offences . A further preliminary judicial investigation was opened against him in DATE . These investigations eventually resulted in a total of CARDINAL charges being brought against the applicant . The first charge , insofar as relevant , read as follows :", "“ CARDINAL . that he , in or around the period from DATE to CARDINAL DATE in GPE and/or elsewhere in the GPE and/or in GPE , has participated in an organisation having as its aim the commission of criminal offences and/or of which organisation he , [ the ] accused , was actually in charge ( “ aan welke organisatie , hij verdachte , feitelijke leiding heeft gegeven ” ) ;", "that organisation consisted of a group of persons , namely [ the accused ] and/or [ CARDINAL co - accused ] and/or CARDINAL or more others who were ( each time ) involved in [ offences involving synthetic drugs and cocaine , an unlawful deprivation of liberty and/or threats to life ] ;", "those crimes concerned ( each time ) intentional acts in violation of [ the provisions of LAW ( PERSON ) and/or the provisions of LAW ( PERSON ) ] ;", "[ constituting a punishable offence under ] LAW ”", "The remaining charges concerned :", "- the exportation of synthetic drugs , together with others or alone , from the GPE to GPE DATE and DATE ( charge no . CARDINAL ) ;", "- the exportation of synthetic drugs , together with others or alone , from the GPE to GPE DATE and DATE ( charge no . CARDINAL ) ;", "- the exportation of synthetic drugs , together with others or alone , from the GPE to GPE DATE and CARDINAL DATE ( charge no . CARDINAL ) ;", "- the exportation of synthetic drugs , together with others or alone , from the GPE to GPE DATE and DATE or , alternatively , the possession of , transporting of and/or trafficking in synthetic drugs in the GPE during that period ( charge no . CARDINAL ) ;", "- the production of , transporting of and/or trafficking in synthetic drugs in the GPE DATE and DATE ( charge no . CARDINAL ) ;", "- the production and/or possession of synthetic drugs , together with others or alone , in the GPE DATE and DATE ( charge no . CARDINAL )", "- the production , possession and/or transporting of synthetic drugs , together with others or alone , in the GPE DATE and DATE or , alternatively , having provided others with the necessary means for committing these offences ( charge no . CARDINAL) ;", "- the production , possession and/or transporting of synthetic drugs , together with others or alone , in the GPE DATE and DATE ( charge no . CARDINAL ) ;", "- the exportation of cannabis and/or hashish , together with others or alone , from the GPE to GPE DATE and CARDINAL DATE ( charge no . CARDINAL ) ; and", "- having unlawfully deprived , together with others or alone , a person of his liberty DATE ( charge no . CARDINAL ) .", "On DATE , the applicant was taken into detention in GPE on the basis of a GPE request for his extradition . Following extradition proceedings in GPE , the applicant was extradited on DATE to the GPE , where he was placed in pre - trial detention . He was summoned to appear on DATE before ORG ( arrondissementsrechtbank ) of GPE in order to stand trial on the aforementioned charges .", "In the course of the hearing held on DATE before ORG , the public prosecutor amended , inter alia , the first charge by replacing the phrase “ and/or of which organisation he , [ the ] accused , was actually in charge ” with “ whereas the accused , within that organisation , has fulfilled the role of director ” ( “ terwijl hij , verdachte , binnen die organisatie een rol als bestuurder heeft vervuld ” ) and by replacing the reference to LAW with a reference to LAW .", "In its judgment of DATE , ORG declared the prosecution inadmissible in respect of the sixth , seventh , CARDINAL charges , finding that , during the criminal investigations , the authorities had used an infiltrator whose deployment and activities had not been duly recorded , thus rendering any subsequent control impossible . Although it found that the public prosecutor who had issued the summons against the applicant had not been aware of the role of the infiltrator at the outset , it was established that the prosecution had become aware of the matter before the hearing of DATE , whereupon the prosecutor should have notified ORG of this without delay . It held that , in these circumstances , there had been a serious breach of the principles of proper trial procedure ( beginselen van een behoorlijke procesorde ) for which only the most severe sanction was appropriate , namely to declare inadmissible the prosecution of these charges .", "It further declared the prosecution inadmissible in respect of that part of the first charge which had been amended by the prosecution on DATE , i.e. the factor that the applicant had acted as the director of the criminal organisation . It agreed with the defence that this point had not been examined in the NORP extradition proceedings whereas , pursuant to LAW , it should have been determined whether the charge as amended would have allowed extradition .", "ORG convicted the applicant of participation in a criminal organisation . He was also convicted on DATE charges . It acquitted him of the remaining charges and sentenced him to DATE imprisonment , less the time spent in detention in GPE pending his extradition and the time spent in pretrial detention in the GPE .", "The applicant filed an appeal with ORG ( gerechtshof ) of GPE and , in this connection , requested the public prosecutor , by letter of CARDINAL DATE , to summon numerous witnesses , including the police officers X and Y who had acted as “ runners ” for PERSON , the civilian infiltrator who had been deployed in the different investigations which had led to the institution of criminal proceedings against the applicant .", "ORG commenced its examination on DATE . In the course of CARDINAL hearings held DATE and DATE , ORG heard a total of CARDINAL witnesses , including QUANTITY police officers , CARDINAL public prosecutors and an investigating judge ( rechter - commissaris ) . Although ORG had accepted the applicant 's request to take oral evidence from the police officers X and Y , they failed to appear . In the course of the proceedings , the public prosecutor informed ORG that , given their current mental health , the QUANTITY police officers were unable to undergo questioning . This contention was supported by medical opinions drawn up by a police medical officer , a psychologist and a psychiatrist . Considering that it was pointless to summon these witnesses again , ORG rejected the applicant 's request to this effect .", "At the hearing held on DATE , ORG heard the parties ' final pleadings and set a date for judgment .", "In its judgment of DATE , ORG quashed ORG judgment of DATE . As regards the request by the defence to reconsider its decision not to pursue efforts to hear the witnesses X and Y , ORG held that the arguments put forward by the defence were insufficient for such reconsideration . In reaching this finding , ORG took into account that it had obtained extensive information about the activities of Z as an infiltrator by other means , such as the statements given by X and Y to ORG ( Rijksrecherche ) , a CARDINAL page fax message sent by Z to ORG ( Criminele Inlichtingendienst ) containing a “ report on activities concerning GPE ” , copies of internal notes containing information conveyed to the investigating authorities by Z and the statements given by X and Y to the PERSON investigating judge . It also rejected the argument that the prosecution should be declared inadmissible on account of the ORG 's failure to secure the appearance of these QUANTITY police officers . Although it found the situation to be highly unsatisfactory , it had not been established that this was the result of an intentional obstruction of judicial proceedings by the police officers concerned or their superiors . It further considered that , in view of the results of the investigation at trial , the interest of the defence in hearing both “ runners ” had diminished during the course of the proceedings , although the investigation at trial had not been complete .", "It upheld the decision of ORG to declare the prosecution inadmissible regarding the applicant 's purported role as the director of a criminal organisation , given that this had not been raised in the NORP extradition proceedings . It further declared the prosecution inadmissible in respect of DATE charges . Insofar as relevant , ORG held , as to the admissibility of the prosecution , as follows :", "“ In view of the suspicion that existed in respect of some groups to which the [ applicant ] was suspected to belong , the deployment of Z as ( a civilian ) informer / infiltrator was justified . Pursuant to the directives [ on ] infiltration dated DATE then in force , this deployment required the approval of the public prosecution department .", "Whether this approval has been given and , if so , in how far the responsible public prosecution department supervised the activities of Z , or how far Z acted upon the instructions of the runners or according to his own plans and insight , has DATE after the further investigation by the court DATE not been clarified . ... The court is of the opinion that it is plausible that , insofar as he has not respected instructions or has acted more extensively than allowed by the runners , with the supply of base materials and devices , or the production of hard drugs in the various laboratories , Z was given the opportunity , given the lack of supervision and control by ORG , to commit unpunished criminal offences and generate [ income from crime ] . In these circumstances , the public prosecution department must be held responsible for the activities not directed by ORG or the public prosecution department . ...", "This is different for the [ charges set out under nos . ] CARDINAL , DATE , DATE , DATE and DATE . Insofar as these facts can be proven , it has not been established that Z had anything to do with [ these facts ] .", "The infiltration by Z also forms no obstacle to the admissibility of the prosecution as regards [ the first charge ] . The element that Z , as an infiltrator , has in fact participated in , and possibly in certain cases has taken the initiative in , the commission of some of the punishable facts charged DATE the preparation / production of amphetamines and/or XTC – and that , in view of the probable scope of ORG 's activities , the public prosecution must be declared inadmissible in respect of those facts in the case against [ the applicant ] , does not mean that the public prosecution department must be denied its right to prosecute [ the applicant ] as regards his participation in an organisation whose aim is to commit these and other criminal offences . There is no indication whatsoever that the organisation would not have existed without the commitment of PERSON Nor has it been established that the applicant would not have participated in the organisation if Z had not become involved in it . ”", "ORG acquitted the applicant , for lack of evidence , on the second , third , fifth and tenth charges , and convicted him of participation in a criminal organisation and of participation in the commission of an unlawful deprivation of liberty ( first and eleventh charges ) . It sentenced him to DATE imprisonment , less the time spent in detention in GPE pending his extradition and the time spent in pretrial detention in the GPE .", "As to the determination of the applicant 's sentence , ORG held as follows :", "“ The court has determined the sentence on the basis of the gravity of the offences and the circumstances under which they were committed , and on the basis of the person and the personal circumstances of the [ applicant ] , as has emerged from the hearings before the court .", "The court has had particular regard to the following :", "The [ applicant ] has participated in a criminal organisation involved in the production and exportation of amphetamines and ORG on a large scale . He has played a managing role ( “ leidinggevende rol ” ) in that organisation . He was motivated by financial greed , regardless of the considerable dangers which drugs such as amphetamines and ORG , as commonly known , constitute to public health . In connection with these criminal activities , the accused has further , together with others , committed an unlawful deprivation of liberty in which CARDINAL of the members of the organisation was [ deprived of his liberty ] .", "The court further takes into account that the accused , according to his own statement , was sentenced to a lengthy term of imprisonment in GPE in DATE in respect of a [ drug offence ] .", "In view of the nature and seriousness of the facts found proven , the court is of the opinion that only an unconditional prison sentence [ of DATE ] is a fitting sanction . ”", "The applicant filed an appeal in cassation with ORG ( PERSON ) and raised CARDINAL complaints . He first complained that ORG , in the reasons determining the sentence , had disregarded the law and/or the formalities entailing nullity because :", "“ According to LAW , it is a ( considerable ) aggravating circumstance when a participant in a [ criminal ] organisation manifests himself as a founder or director thereof . This aggravating circumstance was initially not included in the charge and it was also not notified to the extraditing ORG . ORG of GPE has thus correctly found that the public prosecution department did not have a right of prosecution in respect of this aggravating circumstance . Incomprehensibly , however , ORG subsequently attributes to this aggravating circumstance a prominent role in the prosecution via the back door in its determination of the sentence . Indeed , ORG explicitly considers that having a managing role in the organisation is significant in the determination of the punishment . Thereby , despite the prohibition on prosecution correctly determined by ORG , the [ applicant ] has been prosecuted and convicted for directing / managing the organisation [ at issue ] . The judgment has therefore not , or in any event not in a comprehensive manner , been reasoned as required by law . ”", "In his advisory opinion , the Procurator General to ORG proposed to reject this complaint , considering that :", "“ It must first be put that [ a ] “ managing role ” is not , by definition , equivalent to directing a criminal organisation or fulfilling the role of the director of that organisation , as meant by LAW of LAW . One can very well give guidance without being a director , as meant in the charge that was brought and in respect of which the prosecution was declared inadmissible . In its considerations , ORG has only indicated that [ the applicant ] has contributed more to the operation of that organisation than other participants , without – in giving this indication – finding that he performed the role of director ... The complaint therefore rests on an incorrect understanding of the judgment and it lacks a factual basis . ”", "In his response to the advisory opinion , the applicant submitted :", "“ In his advisory opinion on the first complaint , the Procurator General indicates that the complaint rests on an incorrect understanding of the judgment , as directing is not , by definition , equivalent to managing . The [ applicant ] is convinced that your Court , in your case law of DATE , has in fact indicated that “ directing ” , within the meaning of LAW , is not to be interpreted restrictively in the sense that it would only concern the civil law direction of ( for instance ) a legal person . It is indeed the managing of an organisation which is regarded by your ORG as ( a form of ) directing under LAW . Charges in which the element of “ directing ” is factually described as “ managing ” can stand the test of criticism like this . If your Court were to follow the advisory opinion , this would - in the [ applicant 's ] humble opinion - mean a departure from the current line , with considerable consequences for the prosecution of directing criminal organisations . ”", "In its judgment of DATE , ORG rejected the applicant 's first complaint in cassation , holding :", "“ The charge under CARDINAL is geared to LAW . In the proceedings in first instance that charge has been amended , in the sense that , to this [ charge ] DATE undeniably as an aggravating circumstance as meant in the third paragraph of that DATE has been added “ whereas the accused , within that organisation , has fulfilled the role of director ” .", "In the impugned ruling , ORG has declared the prosecution inadmissible regarding the charge under CARDINAL , insofar as it concerns that aggravating circumstance .", "In the reasons given ... for the determination of the sentence , ORG has taken into account that the [ applicant ] has played “ a managing role ” in the organisation concerned .", "In so doing ORG apparently was referring to the managerial activities of the [ applicant ] which are not of such a nature that they mean that the [ applicant ] must be regarded as the “ director ” under LAW of LAW .", "The complaint , which rests on another understanding of the impugned ruling , thus lacks a factual basis , so that it can not lead to cassation . ”", "ORG also rejected the applicant 's complaint in cassation that his rights under , inter alia , LAW had been breached by the refusal of ORG to summon the witnesses X and Y again and/or to declare the prosecution inadmissible on account of the latters ' failure to appear . As regards these complaints , ORG held :", "“ The[se ] complaints do not constitute grounds for overturning the impugned judgment ( “ kunnen niet tot cassatie leiden ” ) . Having regard to LAW ( Wet op de rechterlijke organisatie ) , no further reasoning is called for , since these complaints do not give rise to the need for a determination of legal issues in the interests of legal unity and legal development . ”", "It also rejected the other complaints in cassation raised by the applicant .", "LAW ) , as in force at the material time and in its relevant part , read as follows :", "“ CARDINAL . Participation in an organisation whose aim is to commit offences shall be liable to a term of imprisonment not exceeding DATE or a fourth category fine [ i.e. MONEY ] .", "...", "For those responsible for setting up [ the organisation ] or its directors ( bestuurders ) , the term of imprisonment may be increased by CARDINAL , and a fine in the next higher category may be imposed . ”", "Article CARDINAL of LAW ( PERSON ) , insofar as relevant , provides as follows :", "“ CARDINAL . The judgment shall contain the charges and the substance of the evidence insofar as it serves to prove the charges .", "...", "The decision that a defendant committed the offence in question must be supported by facts or circumstances that are referred to as such in the judgment .", "...", "The judgment shall specify the reasons that have determined the sentence or non - punitive order .", "In imposing a sentence or non - punitive order involving a deprivation of liberty , the judgment shall specify the reasons that led to that choice of penalty or order . It shall also describe , as far as possible , the circumstances that were taken into account in determining the length of the sentence .", "... ”", "In determining the type and severity of the sentence to be imposed in cases where accused persons are found guilty , the courts have a considerable degree of latitude . LAW lays down a general minimum sentence ( of DATE as far as imprisonment is concerned - LAW ) and , depending on the offence in question , a maximum sentence . Within these limits , the court is free to determine the appropriate sentence in the light of the accused 's", "According to LAW , where CARDINAL or more separate , indictable offences are committed , the maximum penalty which may be imposed is the combined total of the maximum penalties for each offence . However , insofar as a term of imprisonment is concerned , the penalty may not exceed the most severe maximum penalty by CARDINAL . In the present case , the first offence of which the applicant was convicted carried a maximum prison sentence of DATE and the second offence a maximum prison sentence of DATE . The maximum sentence that could have been imposed on the applicant was therefore DATE and DATE .", "Article PERSON of ORG , as in force at the material time , read as follows :", "“ If ORG considers that a complaint does not provide grounds for overturning the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law , it may , in giving reasons for its decision on the matter , limit itself to that finding . ”" ]

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[ "On DATE the first applicant submitted a patent application for a particular method of propulsion of aircrafts and sea vessels to ORG ( Patentstyrets første avdeling DATE hereinafter referred to as “ NIPO ” ) . Ranging under ORG , ORG is a government authority , responsible for processing and deciding on applications for patent protection in GPE . The application was allotted no . DATE .", "In a letter of CARDINAL DATE , ORG presented a preliminary opinion stating that the application in its present form was not patentable because it did not reveal a concrete solution to achieve the desired effect . It also questioned whether the invention had any effect at all . Therefore , under former LAW ( currently section CARDINAL ) of the Regulation ( forskrift ) to LAW ( patentloven ) , NIPO required the first applicant to perform a test ( “ praktiske forsøk ” ) at an independent research institute and to submit the necessary test documentation . The first applicant replied on DATE that he disputed the need for a test and referred to the high costs for such tests . However , he informed NIPO that prototypes were under construction and could be tested in the presence of representatives from NIPO .", "In the period from DATE to CARDINAL DATE , there was correspondence between the first applicant and NIPO as to the existence of any need to protect the confidentiality of the application . In DATE ORG asked ORG whether the application should be kept secret on national security grounds , which the latter answered in the negative in DATE . The first applicant was informed in DATE .", "On DATE the first applicant provided NIPO with further information on the subject - matter of the application . On DATE , ORG reiterated its request of CARDINAL DATE that the first applicant provide evidence from tests showing the technical effect and concrete features of the invention . In his reply of CARDINAL DATE the first applicant submitted theoretical views on the subject - matter of the application with reference to a research report of DATE which , according to him , described tests and results that proved the technical effect of his invention . The required tests were therefore superfluous , in his view .", "The first applicant on DATE complained about the delays in the processing of his application . The ORG ’s Director General on DATE apologised for the delay and said the matter would be given priority .", "On DATE NIPO maintained its earlier requirement of independent tests , to which a series of exchanges ensued between the applicant and NIPO on the need for tests , including a protest by the applicant questioning NIPO ’s technical competence and the submission by him of statements by CARDINAL academics , dated DATE and DATE , respectively .", "Whilst apologising for the delay , ORG maintained its position on the need for testing in a communication to the first applicant of CARDINAL DATE and gave him until DATE to comply .", "By a registered letter of CARDINAL DATE , received on DATE , the first applicant again characterised NIPO ’s processing as late and technically incompetent without making any new arguments concerning the requirements for granting a patent .", "On the ground of the first applicant ’s failure to comply with the time - limit of CARDINAL DATE , ORG decided to discontinue ( henlegge ) its examination of his application under section CARDINAL(CARDINAL ) of LAW ( according to which , in the event of an omission by a patent seeker to provide a statement or to take measures to rectify a notified deficiency , the application shall be shelved ) . Upon reconsideration of the matter , NIPO informed the first applicant on DATE that , although the application had been received on time , it maintained its decision to shelve the application because he had not met the substantive requirements indicated to him on CARDINAL DATE .", "The first applicant then lodged a petition with ORG on DATE .", "Following an inquiry by ORG , NIPO informed the first applicant on DATE that it had annulled its decision to discontinue the matter and gave him until DATE to respond to its letter of CARDINAL DATE . He replied on DATE but without presenting any new arguments or material .", "On DATE NIPO refused the application on the ground that the applicant had not made it probable that the subject - matter of the application had the alleged technical effect .", "On DATE the Parliamentary Ombudsman informed ORG that he found no grounds for continuing the investigation of the petition .", "On DATE the first applicant appealed to ORG ( Patentstyrets annen avdeling ) against ORG ’s decision of DATE .", "Following a period of circulation of the case files among the members of ORG , the first meeting on the case was held on DATE . ORG took a different view than NIPO and indicated a new formulation of the patent claims which might lead to a patent , but only for sea vessels . The applicant was informed correspondingly in a letter of DATE .", "During the period from DATE to CARDINAL DATE , there was correspondence between ORG and the first applicant in order to arrange a meeting , which was held on DATE . The subject - matter of the appeal was discussed together with the further process .", "On DATE , NIPO was informed that PERCENT of the ownership to the application had been transferred to the second applicant PERSON AS . Thereafter , mostly both applicants , occasionally only the first applicant , acted as claimants in the relevant proceedings ( to simplify “ applicants ” is used in the following ) .", "In the period from DATE to CARDINAL DATE , ORG and the applicants exchanged various communications regarding the patentability of the original patent claims .", "By a decision of DATE , ORG concluded that the invention in application no . DATE had a technical effect , but the ORG did not consider whether other patent requirements had been fulfilled . The applicants had received information on how to change the claims into a patentable invention but had been unwilling to do so . Consequently , ORG did not find any grounds to continue processing of the application . Accordingly , ORG ’s decision was set aside and the application was referred back to NIPO for further consideration .", "Following the return of the application to NIPO , it concluded in its letter of CARDINAL DATE that the subject - matter of DATE could not be considered novel .", "The applicants , represented by Mr. PERSON , filed a new complaint to ORG on DATE concerning the proceedings before ORG . In particular they claimed that the executive officer of ORG had been prejudiced as he was responsible for considerable parts of the previous processing and the refusal of the application prior to the appeal to ORG . ORG replied on DATE and DATE that he could not decide on complaints until the processing of the application had been completed , but assumed that the case would now be examined with due diligence ( “ tilbørlig hurtighet ” ) .", "Exchanges of correspondence between ORG and the applicants continued DATE and DATE . NIPO provided guidance and suggested that specific changes be made to the patent claims in order to render the subject - matter of the application patentable . The applicants disagreed .", "On DATE , the application was formally refused due to lack of novelty ( see paragraph CARDINAL below ) .", "On DATE the applicants appealed to ORG . On DATE , they were informed that ORG , after having examined the case ( on DATE ) had found it clear that the conditions for granting a patent had not been fulfilled in so far as concerned aircrafts . However , the application might succeed in respect of a more limited field of sea vessels . It was proposed that the patent requirements be formulated in a similar manner as proposed in ORG letter of DATE ( see paragraph CARDINAL above ) .", "The communication of CARDINAL DATE further warned the applicants that if the patent requirements were not defined in accordance with the indications given , the ORG ’s rejection might be confirmed . In the alternative , the part of the application that related to air transport might be disjoined from that which related to sea transport , in which case it might be expected that the former part would be rejected . As an alternative to delimiting against the requirements to aircrafts , dividing the application into CARDINAL parts , CARDINAL concerning aircrafts , another concerning sea vessels , could be considered , in accordance with LAW . In that case , a rejection of the separate part relating to air crafts ought to be expected .", "The applicants were given until DATE to comment and were warned that the case might be determined on the basis of the case - file as it stood as at that date .", "In a letter to ORG of DATE , the applicants submitted their observations to the communication of CARDINAL DATE and altered the definition of patent requirements .", "On DATE ORG confirmed NIPO ’s refusal of the patent requested ( see paragraph CARDINAL above ) , albeit on a different reasoning . Whilst NIPO had been sceptical about whether the patent requested could serve according to its purpose , ORG had no doubt that the results could be achieved with the invention that could be exploited industrially and that the application could not be rejected on this ground . Both ORG and ORG found that the application did not involve any novelty in respect of aviation , though the reasoning differed . Unlike ORG , ORG found that the application could have succeeded in a limited area of sea transport . The applicants had been advised that in order to succeed , the patent requirements would have to be defined so as to exclude aviation but had not been willing to do so . The application as presented did therefore not fulfil the conditions for grant of patent .", "The applicants have apparently not challenged the ORG decision of DATE before the NORP courts .", "According to the applicants , the patent applications they had filed in DATE , made in light of the patent application of CARDINAL DATE ( no . DATE ) , had been granted in GPE , GPE , GPE and GPE and “ through the EPO [ ORG ] as well ” .", "The Government submitted that according to PERSON ( a database provided by EPO ) , the applicants had not claimed priority with respect to no . DATE in any of the above mentioned countries or in EPO . The granted EPO patent had claimed priority in relation to another and separate application by the applicants , namely no . CARDINAL , which had been based on knowledge from no . DATE . When comparing the EPO patent claims with no . DATE , one would observe that the former had been based on additional features that had made the invention patentable .", "Section CARDINAL ( CARDINAL ) of LAW ( patentloven ) , provides :", "“ Within any technical field , any person who has made an invention which is susceptible of industrial application , or his successor in title , shall , in accordance with this LAW , have the right on application to be granted a patent for the invention and thereby obtain the exclusive right to exploit the invention commercially or operationally . ”", "The expression “ industrial application ” requires that the innovation has “ technical effect ” .", "Pursuant to section CARDINAL , patents shall be granted only for inventions which are new in relation to what was known before the filing date of the patent application , and which also differ essentially therefrom .", "LAW provides :", "“ If the applicant has not complied with the prescribed requirements with respect to the application , or if NIPO finds other obstacles to the acceptance of the application , the applicant shall be notified to that effect and be invited to submit observations or to correct the application within a specified time limit . However , ORG may make such amendments in the abstract as found necessary without consulting the applicant .", "If the applicant fails , within the time limit , to submit observations or to take steps to correct a defect which has been pointed out , the application shall be shelved . Information to that effect shall be given in the notification from NIPO referred to in the first paragraph . ”", "Section CARDINAL ( CARDINAL ) to ( CARDINAL ) of LAW reads :", "“ An appeal must be received by ORG within DATE from the date on which notification of the decision was sent to the party concerned . ... If these provisions are not complied with , the appeal shall not be submitted for consideration .", "Even if the opponent withdraws his appeal , it may be examined if special circumstances make it desirable .", "A decision by ORG refusing a patent application , revoking a patent , or maintaining a decision by NIPO to revoke a patent may not be brought before the courts of law DATE from the date on which the applicant or patent holder was notified of the decision . Information with respect to the time limit for instituting proceedings shall be given in the notification . ”", "According to section CARDINAL of LAW , a granted patent may be maintained for DATE from the date of filing of the patent application . It is undisputed in this case that , had a patent been granted in GPE , this would have meant that the patent protection would have expired on DATE ." ]

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[ "6-1" ]

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[ "The applicants are all NORP citizens .", "The facts , as submitted by the parties , may be summarised as follows .", "The applicants are all former employees of ORG , a bank , which was involved in a large restructuring process of ORG - owned companies in GPE , entailing collective dismissals .", "The collective dismissal of employees of PERSON took place in different stages between DATE and DATE . It affected CARDINAL of persons across GPE working either in the central office or in the local branches of the bank as follows : CARDINAL persons dismissed in DATE , QUANTITY persons dismissed in DATE and CARDINAL persons dismissed in DATE . No precise numbers were available for the final stages of the dismissal process . From the case file , it appears that the applicants were dismissed during DATE .", "The applicants made several attempts to receive compensatory sums for collective dismissal ( see paragraph CARDINAL below ) before ORG and ORG ( “ the agency ” ) , a ORG agency entrusted with the disbursement of these payments , but did not have any success .", "On DATE , they brought an action against the agency , seeking to be granted the compensatory payments . They argued that according to the applicable law , their right had arisen on the date on which their contracts had been terminated . The fact that B. had failed to submit to the agency a list of the persons whose contracts had been terminated could not be imputed to the employees . Moreover , there was established case - law upholding applications submitted by other former employees in a similar situation from the same court of first instance in GPE and in final decisions of higher courts across the country .", "By a judgment of DATE , ORG upheld the applicants ' claim . It established that B. had only submitted to the local agency a list of persons dismissed after DATE and had failed to send a list of persons dismissed before that date , even though they were part of the same collective dismissal process . The court considered that this failure gave rise to inequalities among the people dismissed .", "Allowing an appeal by the agency , ORG , by a final decision of DATE ( drafted on DATE ) , reversed the first - instance decision and concluded that the applicants did not meet the requirements for receiving the compensatory payments . For the applicants dismissed DATE and DATE , the appellate court referred to another condition provided by the national legislation , namely that ORG ( FPS ) should have mandated its special representatives on the board of shareholders to proceed with the reorganisation , in particular with the collective dismissal . In the case at issue , the appellate court established that such a mandate did not exist on DATE when the applicants were dismissed and therefore they were not entitled to compensatory payments . For the applicants dismissed DATE , the county court established that they did not meet another condition , namely that they did not prove that they had taken part in the pre - dismissal procedures . It concluded that the applicants did not satisfy these specific conditions and dismissed their claims .", "The applicants submitted requests to the Procurator General for leave to lodge an extraordinary appeal against the final decision , invoking , inter alia , the existence of conflicting final decisions concerning other former employees in the same situation as them , namely those dismissed before DATE . Their requests were rejected .", "Emergency Ordinance no . CARDINAL/CARDINAL , as modified by Emergency Ordinance no . GPE , provided that persons whose employment contracts were terminated due to collective dismissal procedures were entitled to compensatory payments ranging from CARDINAL to CARDINAL times the average net salary nationwide . On DATE the newly adopted Emergency Ordinance no . CARDINAL changed the method for determining the quantum of the compensatory payments , which since then has ranged from CARDINAL times the average net salary in the specific company .", "DATE of Emergency Ordinance no . CARDINAL/CARDINAL obliged the employer company to notify , in writing , the competent agencies of the collective dismissal process , as approved in the restructuring programme , and to provide lists of the staff to be dismissed . Based on those lists , the competent agencies were required to provide pre - dismissal services , including counselling and professional guidance . In order to be eligible for compensatory payments , the persons who were part of a collective dismissal had to take part in these pre - dismissal programmes .", "NORP In similar cases , former employees of B. , dismissed before DATE , requested recognition of their right to compensatory payments . Following the agency 's refusal to pay compensation , they lodged complaints with the competent domestic courts . By different final decisions rendered by county courts DATE , their right to compensatory payments was recognised . The reasoning varied : some county courts considered that the condition regarding the special mandate of the ORG was satisfied , others did not even take this special condition into account .", "The condition regarding participation in the pre - dismissal procedures was indirectly taken into account into some of the decisions . In those decisions reference was made to the fact that the employer had failed to submit to the competent agencies lists of the staff dismissed before DATE .", "Some decisions underline the fact that the collective dismissal took place in different stages and that the persons dismissed before DATE had been deprived of the social protection provided by the compensatory payments , even though the dismissal conditions had been identical and there was no objective reason for such discrimination .", "Another group of former employees , who were dismissed DATE and DATE and who lost their case by a final decision of ORG of DATE , submitted a request to the Procurator General for leave to lodge an extraordinary appeal ( recurs în anulare ) in their favour . The latter accepted their request and made a request in this respect to ORG .", "By a final decision of DATE ORG allowed the extraordinary appeal and quashed the final decision delivered in that particular case . It concluded that the lack of the special mandate of the FPS ( issued in DATE ) did not affect the right of persons whose employment contracts had been terminated in the framework of a collective dismissal to receive compensatory payments . It further explained that in the event of a contrary interpretation , the effects would be unacceptable because it would create discrimination between persons placed in the same or similar positions . It also added that in the event that the former employees were not involved in the collective pre - dismissal procedures because of the negligence of the employer , they were still entitled to receive compensatory payments .", "Subsequent final decisions of ORG of DATE and DATE followed the same approach and recognised the right to compensatory payments for former employees dismissed during the same period of time as the applicants .", "LAW ( “ the ORG ” ) in force at the time provided in its LAW that ORG , ex officio or upon request of the minister of justice , could lodge an extraordinary appeal ( “ recurs in anulare ” ) against final judicial decisions . This extraordinary appeal was repealed from domestic law by a Government ordinance published on DATE .", "Article CARDINAL of the ORG regulates another type of extraordinary appeal ( “ recurs in interesul legii ” ) . The provisions in force at the time provided that in order to ensure uniform interpretation and application of the law , the Prosecutor General , ex officio or at the request of the minister of justice , could request ORG to deliver a decision concerning a legal issue which had received different solutions in the lower courts . The decision thus delivered could not alter the outcome of cases already decided . Amendments were made in DATE and it was made possible to recognise the right of the managerial boards of the courts of appeal to lodge such a request with ORG and ORG .", "Article CARDINAL § CARDINAL of the ORG further provides that a case may be reopened in front of the domestic courts if ORG has found that a specific domestic decision violated fundamental rights or liberties ." ]

[ "6" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms A. Bingöl , Ms PERSON PERSON and Mr A. Timur , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested .", "On DATE ORG remanded him in custody .", "On DATE the public prosecutor attached to FAC ORG filed a bill of indictment against the applicant , along with other persons , and charged him with membership of the ORG ( Workers’ ORG ) under LAW of the former LAW .", "On DATE ORG convicted the applicant as charged .", "On DATE ORG quashed the judgment of the first - instance court in respect of some of the accused , including the applicant , and remitted the case to ORG .", "Subsequent to the promulgation of PERSON no . CARDINAL on DATE , which abolished the jurisdiction of ORG , in DATE ORG acquired jurisdiction over the case .", "On DATE ORG acquitted the applicant , holding that there was insufficient evidence to convict him .", "The applicant claimed that the judgment of CARDINAL DATE was never served on him .", "According to the documents submitted by the respondent Government to the ORG , on DATE the authorities attempted to notify the applicant of the judgment of CARDINAL DATE . The applicant could not be found at the address he had given and the authorities were not able to locate his new address despite all efforts .", "On DATE the applicant applied to the registry of ORG and obtained a copy of the judgment of CARDINAL DATE ." ]

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[ "In DATE the applicants along with CARDINAL others sustained severe food poisoning that caused an illness known as “ toxic syndrome ” after consuming denatured rapeseed oil . The applicants are represented by Mr Ergec , PERSON , PERSON and PERSON . .... The facts set out below concern the first applicant . The facts in the cases of the other CARDINAL applicants cases are identical , apart from the claims for compensation , which were made and dealt with individually .", "The facts of the case , as presented by the parties , can be summarised as follows .", "On DATE a criminal investigation was started into suspected breaches of public - health regulations . All the proceedings concerning the breaches were joined and assigned to LAW , which divided the cases into CARDINAL separate groups of criminal proceedings , depending on whether or not the defendants were civil servants .", "The individual complainants were represented in the proceedings by various associations , including ORG ( hereafter “ ANASTO - LEGANES ” ” ) , which was formed on CARDINAL DATE with the object of securing full reparation for all damage sustained by victims of toxic syndrome . The first applicant is the president of that association .", "The proceedings began in DATE with a criminal complaint by the public prosecutor ’s office . A large number of complaints by victims and associations of victims , and the results of various police and judicial inquiries , were added to the investigation file . The investigation concerned individuals and companies from the private sector and public authorities and their servants . However , in a decision of DATE , the Audiencia Nacional decided to sever the proceedings against the civil servants . It does not appear from the case file that an appeal was lodged against that decision .", "In a judgment of CARDINAL DATE , LAW handed down prison sentences to various defendants for breaches of the public - health regulations , fraud arising out of the sale of denatured rapeseed oil , and professional negligence . In addition to imposing criminal penalties , FAC held that one of the defendants was liable in damages , while the codefendants and CARDINAL undertakings implicated in the distribution of the oil incurred secondary liability .", "The amounts due in damages by those held liable were assessed as follows :", "“ ( i ) to the heirs of each deceased victim : MONEY ;", "( ii ) to persons whose injuries lasted DATE : MONEY ;", "( iii ) to persons whose injuries lasted DATE : MONEY ;", "( iv ) to persons whose injuries lasted DATE : MONEY ;", "( v ) to persons whose injuries lasted DATE : MONEY ;", "( vi ) to persons whose injuries lasted DATE , but without disability : MONEY ;", "( vii ) to persons suffering from permanent disability preventing them from resuming some of their normal duties : MONEY ;", "( viii ) to persons suffering from permanent disability preventing them from resuming any of their normal duties : MONEY ;", "( ix ) to persons suffering from permanent disability preventing them from doing any work : MONEY ;", "to persons suffering from serious disability : MONEY .", "The compensation payable to the heirs of the deceased persons listed as victims in Appendix VII shall be assessed in accordance with the classification of the injuries when the judgment is enforced .", "( xi ) ... ORG : MONEY . ”", "The Audiencia Nacional added :", "“ The stated compensation shall be paid to those entitled with DATE interest at the statutory rate plus CARDINAL points accruing from DATE ( DATE ) until payment is made in full . ”", "In the event of any deterioration in the victim ’s health , the compensation was to be adjusted depending on the category into which the victim ’s injuries ultimately fell .", "The defendants who were convicted , the private complainants and the public prosecutor ’s office appealed on points of law . In a judgment of CARDINAL DATE , ORG upheld the main parts of the impugned judgment and convicted certain defendants of continuing fraud and offences under ORG and CARDINAL of LAW .", "The judgment was not executed , owing to the insolvency of the private individuals and companies who had been ordered to pay damages .", "Following the ORG decision of DATE , the central investigating judge no . CARDINAL at the Audiencia Nacional started an investigation in order to determine whether certain public authorities and civil servants had any liability . The public prosecutor ’s office and a number of private complainants intervened in the proceedings , which ended on DATE with a judgment of ORG , which held :", "“ Those guilty of contaminating the oil have already been tried in proceedings no . CARDINAL/CARDINAL by LAW [ of ORG ] , and the sole purpose of the present proceedings is to establish whether [ those responsible for the contamination ] were able to commit the offences as a result of negligence on the part of the civil servants concerned ... , it being understood that neither the conduct of the persons who have been convicted nor the consequences of that conduct may be re - examined . ”", "CARDINAL defendants accused of causing death by negligence and breaches of public - health regulations were acquitted . The Audiencia Nacional noted that ORG judgment of DATE in proceedings no . CARDINAL/CARDINAL was final . It emphasised that the new proceedings concerned different defendants accused of different offences . All but CARDINAL of the civil servants was acquitted . He was found guilty of negligently causing personal injury and ordered to pay a fine of MONEY ( ESP ) and compensation to the victims equal to PERCENT of the amounts specified in LAW judgment dated DATE in case no . CARDINAL , that is to say :", "“ ( i ) to the heirs of each deceased victim : MONEY ;", "( ii ) to persons whose injuries lasted DATE : MONEY ;", "( iii ) to persons whose injuries lasted DATE : MONEY ;", "( iv ) to persons whose injuries lasted DATE : MONEY ;", "( v ) to persons whose injuries lasted DATE : MONEY ;", "( vi ) to persons whose injuries lasted DATE , but without disability : MONEY ;", "( vii ) to persons suffering from permanent disability preventing them from resuming some of their normal duties : MONEY ;", "( viii ) to persons suffering from permanent disability preventing them from resuming any of their normal duties : MONEY ;", "( ix ) to persons suffering from permanent disability preventing them from doing any work : MONEY ;", "to persons suffering from serious disability : MONEY . ”", "The Second Section added :", "“ Each victim ’s condition will be assessed on the basis of updated information from the case files .", "Since DATE ’s civil liability is less extensive than that of the persons held liable in the judgment of CARDINAL DATE , he shall not be jointly liable for PERCENT of compensation which they were ordered to pay in the aforementioned judgment .", "We must and do order the ORG to pay the compensation due by ORG in the event of his defaulting , less , if applicable , any amounts previously paid by the authorities by way of compensation , aid or grants to persons who have suffered damage . ”", "CARDINAL of the CARDINAL judges sitting in the ORG dissented , arguing that the civil servant concerned should have been acquitted .", "Appeals to ORG were lodged against that judgment . On DATE , ORG reversed and quashed part of the Audiencia Nacional ’s decision . It overruled the impugned decision on quantum , holding :", "ORG also ruled that everyone who had suffered from toxic syndrome , whether or not a party to the proceedings , was entitled to compensation at the relevant rate , as the associations of victims were not acting on behalf of their members , but represented the “ wider interests ” of all the victims , whether or not they were represented .", "In a second judgment delivered DATE , ORG found CARDINAL of the defendant civil servants guilty of recklessly causing death and injury . It sentenced them to CARDINAL months’ imprisonment each and held them jointly and severally liable to pay damages at twice the levels ordered by ORG in its judgment of DATE , that is to say , the levels set out in the judgment of CARDINAL DATE . The remaining CARDINAL civil ORG acquittals were upheld . The ORG was ordered , as a civil party with secondary liability , to pay all the sums mentioned , less any amounts it had granted by way of aid , other than amounts for medical , social - security or other similar expenses to which the victims had a statutory entitlement . An order was made on DATE for the rectification of that judgment to confirm that the levels of compensation were those set out in the decision of CARDINAL DATE .", "Once ORG judgment had become enforceable , the case was remitted to the First Section of the Audiencia Nacional for execution .", "In a decision of CARDINAL DATE the Audiencia Nacional laid down the procedure to be followed by individual victims in order to obtain payment of their compensation .", "On DATE the Audiencia Nacional declared the civil servants who had been found liable in damages insolvent and ordered execution of ORG judgment against the ORG as the party with secondary civil liability .", "On DATE it was decided that , with the exception of additional family allowance , special grants and housing benefit , all aid paid by the ORG to victims of toxic syndrome between the date of the decision to grant such aid and the date the compensation was paid would be deducted from the amount of compensation payable .", "On DATE the Audiencia Nacional directed that the payment process had begun and informed the victims of toxic syndrome that they could “ obtain the standard compensation payment request form and complete related software package to assist them in making their claims from ORG Audiencia Nacional ” .", "The standard form issued by ORG did not contain a section allowing claims to be made for default interest . Accordingly , ORG drafted a document claiming default interest at the official rate from CARDINAL DATE , DATE Audiencia Nacional ’s judgment in the first set of proceedings , to the date of actual payment . The document was appended to the first request for execution of the judgment ( which was submitted by the first applicant ) and , relying on the official consumer price index published by ORG , stated that prices had increased by PERCENT since the relevant date .", "In a decision of CARDINAL DATE the Audiencia Nacional rejected the first applicant ’s claim for default interest accrued since the DATE judgment and assessed his entitlement to compensation at ESP CARDINAL ( after deducting aid received from the ORG ) . That amount was to bear interest at the rate prescribed in DATE , taken together with section CARDINAL , of ORG , which lays down that the authorities must pay interest at the statutory rate if they fail to make payment within DATE after being served with the relevant judicial decision .", "The Audienca Nacional gave the following reasons for its decision :", "“ ... As to the payment of interest , it will be noted that , in the final judgment in the present proceedings , the authority , on account of its secondary civil liability , was ordered to pay unliquidated damages . The sum is unliquidated because , taking the amounts specified in the judgment for each category of person affected [ by the food - poisoning ] as the starting point , the victims are required to submit for examination any deductible amounts ... , the classification of their injuries and any changes thereto . Accordingly , as has already been pointed out in what are now final decisions in the enforcement proceedings , everyone concerned must set the claims procedure in motion so that the amounts due to him or her can be calculated . ... Consequently , the payment of interest is only conceivable once the quantum has been calculated , that is to say , once the claims procedure has been completed . Since the debtor is a public authority ... it is necessary to apply section CARDINAL of the General Finance Act ( GFA ) , taken together with section CARDINAL of that Act , and not LAW . ... Section CARDINAL ORG allows the authority DATE in which to make payment , as it provides that if the authority does not pay a creditor of the ORG within DATE after service of the relevant court decision or acknowledgement of the obligation , it is to pay interest at the rate stated in section CARDINAL(CARDINAL ) GFA – that is to say , at the statutory rate on the amount due DATE from the date the creditor makes a written request for performance of the obligation . ”", "On DATE the first applicant renewed his request for default interest in a súplica appeal to FAC . He argued that the compensation was a liquidated sum , as FAC had itself established in its judgment of CARDINAL DATE . As to the date from which default interest was to run , the applicant said that ORG had already construed section CARDINAL of the General Finance Act , when read in the light of Article CARDINAL of the Code of Civil Procedure , to mean that the judgment at first instance had to be taken into account .", "In a decision of DATE , ORG dismissed the súplica appeal and upheld the previous decision in its entirety . It stressed that the first applicant ’s case concerned secondary civil liability in the context of the procedure for processing the claims for compensation . On DATE the Audiencia Nacional issued an order requiring the authority to pay the sum of ESP CARDINAL .", "The first applicant and the applicants whose names appear on the appended list then lodged an amparo appeal with ORG , alleging a violation of ORG DATE and CARDINAL § QUANTITY of the LAW . They said that the manner in which ORG had applied section CARDINAL of the General Finance Act constituted unjustified discriminatory treatment , as ORG had previously held that that provision had to be read in the light of LAW . They also insisted that litigants were entitled to have final court decisions executed strictly in accordance with their terms .", "ORG dismissed the appeals in a series of decisions ( its decision in the first applicant ’s case being delivered on DATE ) , in which it held :", "“ ... There has been no breach of the rule prohibiting discrimination ( LAW ) . The [ ORG ] judgments relied on by the applicant concerned cases in which the court of first instance decided that the authority had an obligation ( to pay or to reimburse certain sums ) ; that was not the position in the instance case , as it was not until , firstly , the FAC Nacional ’s judgment of CARDINAL DATE and , subsequently , ORG judgment of DATE that it was decided that the authority had secondary liability . Accordingly , to allow interest to run from the date of the Audiencia Nacional ’s judgment ( DATE ) would be tantamount to holding [ the authority ] responsible for delay in complying with a non - existent obligation .", "The right recognised in LAW to the effective protection of the courts has not been infringed either , as the [ Audiencia Nacional ’s ] classification of the compensation as unliquidated is an issue of law that is reserved to the ordinary courts as part of the judicial duties vested exclusively in them by LAW , provided that they do not act arbitrarily , irrationally or in manifest breach of a procedural rule , which they have not done ... ”", "and :", "“ ... The applicant has only raised questions of ordinary law , for which the ordinary courts have exclusive jurisdiction by virtue of LAW judgment no . CARDINAL of CARDINAL DATE ) , provided they do not act arbitrarily , irrationally or in manifest breach of a procedural rule , which they have not done ... ”", "and further :", "“ ... Firstly , as regards the violation of the right to the effective protection of the courts ( LAW ) , the applicant has only raised questions of ordinary law , for which the ordinary courts have exclusive jurisdiction by virtue of Article CARDINAL § CARDINAL of LAW ( Constitutional Court judgment no . CARDINAL of DATE ) , provided they do not act arbitrarily , irrationally or in manifest breach of a procedural rule , which they have not done ... Secondly , as regards the principle of equality before the law ( LAW ) , ORG judgments relied on by the applicant in support of his allegations relate to cases that can not in any way be assimilated to the instant case ... ”", "By DATE some CARDINAL victims of toxic syndrome , that is to say CARDINAL of those affected , had received compensation . The first applicant is CARDINAL of them .", "Article CARDINAL § CARDINAL of the LAW provides , that in order to assert their rights and freedoms under LAW , all citizens may make an expedited application to the ordinary courts and , if appropriate , lodge an amparo appeal with ORG .", "The right of property proclaimed by LAW is not one of the rights for which an amparo appeal to ORG lies .", "Article CARDINAL of the Code of Civil Procedure provides that judgment debts shall bear default interest at the statutory rate plus CARDINAL points from DATE after the judgment was delivered until the debt has been paid in full . Article CARDINAL applies only to liquidated awards . The rule applies to all judicial decisions , although exceptions are made in favour of the ORG under LAW .", "Sections CARDINAL and CARDINAL of the General Finance Act , which govern ORG receipts and expenditure , provide that creditors of the ORG shall only be entitled to default interest at the statutory rate if the authority concerned fails to discharge the relevant obligation within DATE after service of the judicial decision imposing it . The sections do not , however , indicate whether the relevant decision for this purpose is the decision of the court of first instance or of the appellate court . LAW states that the authority has DATE in which to pay its debt and that a failure to pay within DATE after service of the relevant judicial decision or acknowledgement of debt will entitle the creditor to interest at the rate stated in section CARDINAL(CARDINAL ) of the LAW , that is to say statutory interest on the amount due from the date of a written request by the creditor for performance of the obligation ." ]

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[ "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was born in DATE and , at the time of the introduction of his application , was serving a sentence of life imprisonment in GPE .", "In DATE the applicant was living with his family in GPE , where his father was an ORG Corporal serving in ORG of FAC . On DATE the applicant was charged with the murder of a young civilian woman who had been working in ORG and whose body had been found in woods near to the army base .", "As a family member residing with a member of ORG , the applicant was subject to military law ( see paragraph CARDINAL below ) . The NORP authorities waived jurisdiction pursuant to ORG DATE ( see paragraph CARDINAL below ) .", "On DATE the Commander of ORG was appointed to act as the applicant ’s Commanding Officer . The latter decided to refer the case to ORG with a view to the applicant being tried by general court - martial . ORG submitted the case for trial by general court - martial , and the court - martial was convened by the Commanding Officer ( henceforth , “ the Convening Officer ” ) . The applicant obtained military legal aid on DATE .", "In the meantime , the applicant ’s father was posted to GPE and returned there on DATE . Despite his father ’s return , the applicant remained subject to military law as the proceedings had already commenced ( see paragraph CARDINAL below ) . The applicant returned to GPE in DATE where he was detained . His father was discharged from the army in DATE .", "The applicant was returned to GPE in time for his court - martial which commenced on DATE . The court - martial board was composed of a President , who was not a permanent president , and CARDINAL ordinary members . CARDINAL of the members were senior officers , all of whom were subordinate in rank to the Convening Officer and the President and CARDINAL of whom was within the Convening Officer ’s chain of command . CARDINAL members were civilian civil servants , who came from GPE solely for the purpose of the trial , and were placed under LAW command while in GPE , although they were not in his reporting chain .", "The applicant ’s representative submitted , inter alia , that the trial of a young civilian by court - martial was inherently unfair and oppressive and thus an abuse of process . The atmosphere in a military court would be very different from that of a civilian court and the applicant would not do himself justice . In particular , it was unfair and oppressive that he should be returned to stand trial in GPE after he had spent DATE in detention in GPE and after his father had ceased to be subject to military law . Lastly , if tried by jury , a majority of CARDINAL to CARDINAL votes would be necessary to convict him , whereas a simple majority vote would suffice in a trial by court - martial .", "These submissions were considered by the Vice - Judge Advocate General and were rejected , as was an application for an adjournment to allow proceedings for judicial review to commence . The trial ended with the applicant ’s conviction on CARDINAL DATE . In accordance with the provisions of LAW CARDINAL , the verdict of the court - martial was confirmed by a Confirming Officer ( see paragraph CARDINAL below ) .", "The applicant appealed to ORG , which had the power to quash the conviction if it considered it unsafe . The Lord Chief Justice , Lord PERSON of PERSON , giving judgment on DATE , held , dismissing the appeal :", "“ ... We have some considerable sympathy with the appellant ’s complaint . With the benefit of hindsight , it seems plain that the trial could have been conducted in GPE without undue difficulty . It would in our view have been preferable if this young appellant , whose subjection to military law was purely vicarious and involuntary , had been tried here with all the procedural safeguards which procedure in the ordinary criminal courts affords . We can not , however , stigmatise these proceedings as abusive . They were strictly in accordance with a procedure prescribed by ORG to apply in such cases . There was not , as is accepted , any attempt to over reach or oppress or prejudice the appellant . He had all the safeguards which a defendant in any court - martial is entitled to enjoy . Steps were taken to ensure that all members of the tribunal save CARDINAL were not under the command of the convening officer , and also to ensure that the convening officer and the confirming officer were not the same person . Had the appellant been held in GPE to await trial , as he could have been , his claim to trial in GPE would have appeared weaker . Whether or not it proved necessary in the event to adduce the oral evidence of NORP factual witnesses , the greater availability of such witnesses as a trial in GPE was a legitimate reason for favouring trial there .", "We are satisfied that these proceedings were not an abuse of process . ”", "The appeal court certified a question of law for ORG as to whether proceedings conducted in accordance with LAW could be considered abusive . On DATE ORG granted leave to appeal . Having heard the applicant ’s legal representatives , on DATE ORG unanimously dismissed the appeal . Lords PERSON of GPE and Hope of PERSON expressed the view that at first sight the decision to prosecute the applicant — a civilian aged DATE at the time of the murder — by court - martial had been inappropriate . However , as Lord Hope explained :", "“ It is not difficult to understand the utility of [ section CARDINAL of the Army Act DATE : see paragraph CARDINAL below ] , in view of the greatly increased opportunities which were by then available for families and other civilian personnel to accompany the forces when serving overseas . Had the law not been changed in this respect , civilians and followers would have had to have been brought to trial in the local civil courts in the language and according to the procedures in use in those courts and , if sentenced to imprisonment , to serve the sentence in a local prison . ...", "Fundamental to the appellant ’s argument in the present case is the proposition that the purpose of [ the extension of jurisdiction in section CARDINAL of LAW : see paragraph CARDINAL below ] was to extend to murders committed abroad the right of every person in this country who is accused of murder to have his or her guilt declared by means of a jury trial . ... It seems to me that another , and more likely , explanation is that the legislation was enacted to ensure that the grave offences with which it deals should not go unpunished when committed abroad by a NORP citizen . ...", "In view of what I have said above I do not believe that the proceedings by way of court - martial in this case can be said in themselves to have been an abuse of process . ... The question to which I now turn is whether there is any basis in the information which is available to us for describing any of the decisions taken by those in authority at the various stages in this case as so unfair and wrong as to show that the conviction in this case was unsafe . ... ”", "Lord Hope went on to examine the factors which would have had to have been taken into account when considering whether to prosecute the applicant by court - martial in GPE or by jury trial in GPE :", "“ The timing of any consideration of the matter by ORG would , in my view , have been of critical importance to a decision as to whether there was any unfairness in this case which might be said to render the conviction unsafe . It can not be assumed that the Director would have been willing to take proceedings in GPE without knowing more about the factors which he would have wished to take into account . CARDINAL obvious factor , I would have thought , was the availability of witnesses . In his letter of DATE to the Attorney General ORG had stated that many of the witnesses were NORP and that they could not be forced to attend a trial in GPE . Further details were provided at the request of the Attorney General in a letter by ORG dated DATE . In this letter it is stated that there were CARDINAL NORP witnesses who could be divided into CARDINAL categories — those who saw the appellant in the woods near the scene of the murder , those concerned with the finding of the body and police and forensic experts . The defence had not yet indicated what evidence would be agreed . The Director thought that , while some of their evidence might be agreed , it was unlikely that this would include the police and forensic experts . He believed that they were the witnesses who would be most unlikely to cause difficulties if asked to travel to GPE to give evidence . He added that CARDINAL of the forensic scientists who was responsible for examining secretions and bloodstains — a matter which was of crucial importance in this case as there were no eyewitnesses — was being difficult to deal with and would only attend meetings if they were arranged through the NORP public prosecutor in the nearest large town . He explained that these witnesses were NORP because the police investigation was commenced by the NORP civil police as it was initially assumed that a NORP civilian had committed the crime . ...", "I have not forgotten that Lord PERSON of PERSON [ see paragraph CARDINAL above ] said in his judgment that it was clear , with the benefit of hindsight , that the trial could have been conducted in GPE without due difficulty . But ORG would have had to have taken his decision well before the trial , in view of the arrangements which would have had to have been made for the appellant to be transferred into the hands of the civil authorities in GPE and for the attendance of the witnesses . In the event , as the respondent has recorded in his written case , no agreement was reached , despite several written requests and reminders , about any of the evidence until the commencement of the trial when the evidence of the witnesses was agreed piecemeal during DATE . This account of what happened strongly suggests that at the stage when ORG would have had to have taken his decision he would have had to assume that the important evidence of the NORP witnesses would not be agreed before the trial and that the attendance of the NORP witnesses would be necessary . ...", "Conclusion", "... The proceedings were conducted within the rules laid down by ORG . There is no sound basis for thinking that , at the time when a decision about this would have had to have been taken , a prosecution in the NORP courts within a reasonable time would have been seen to be practicable . The alternatives lay between taking proceedings by way of court - martial in GPE , leaving the matter in the hands of the NORP public prosecutor or taking no proceedings at all . ... ”", "The DATE agreement , as supplemented by LAW of DATE ( subsequently amended in DATE , DATE and DATE ) provides in Article GPE ) :", "“ CARDINAL . Subject to the provisions of this Article ,", "the military authorities of the sending State shall have the right to exercise within the receiving ORG all criminal and disciplinary jurisdiction conferred on them by the law of the sending ORG over all persons subject to the military law of that ORG ;", "the authorities of the receiving ORG shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving ORG and punishable by the law of that ORG .", "Article VII(CARDINAL)(a ) provides :", "“ CARDINAL . In cases where the right to exercise jurisdiction is concurrent , the following rules shall apply :", "( a ) The military authorities of the sending ORG shall have the primary right to exercise jurisdiction over a member of a force or a civilian component in relation to", "( i ) offences solely against property or security of that ORG , or offences solely against the person or property of another member of the force or civilian component of that state or of a dependent ;", "( ii ) offences arising out of an act or omission done in the performance of official duty . ”", "Section CARDINAL of the CARDINAL Act provides :", "“ ( CARDINAL ) Any person subject to military law who commits a civil offence , whether in GPE or elsewhere , shall be guilty of an offence against this section . ...", "A person shall not be charged with an offence against this section committed in GPE if the corresponding civil offence is ... murder . ”", "Section CARDINAL(CARDINAL ) of the LAW states :", "“ Subject to the modifications hereinafter specified , Part II of this Act shall at all times apply to a person of any description specified in the Fifth Schedule to this LAW who is within the limits of the command of any officer commanding a body of the regular forces outside GPE , and is not subject to military law ... apart from this section ... as the said Part II applies to persons subject to military law ... ”", "The Act identifies in its Fifth Schedule the civilians outside GPE who are subject to Part II of the Act when not on active service . They include , at paragraph CARDINAL :", "“ Persons forming part of the family of members of any of Her Majesty ’s Naval , Military , or ORG and residing with them or about to reside or departing after residing with them . ”", "The trial of those who have ceased to be subject to military law is expressly provided for by section CARDINAL of the Act :", "“ Subject to the provisions of the next following section , where an offence under LAW triable by ORG has been committed ... by any person while subject to military law , then in relation to that offence he shall be treated , for the purposes of the provisions of the LAW relating to ... trial and punishment by LAW ... as continuing subject to military law and notwithstanding his ceasing at any time to be subject thereto . ”", "Since LAW DATE , where a civilian defendant is to be tried , civilian ORG servants can be detailed as members of the court - martial . In practice , most criminal offences allegedly committed by a civilian dependent would be tried by ORG ( similar to a ORG ) , with trial by court - martial reserved for the most serious offences .", "The law and procedures which applied generally to the applicant ’s court - martial were contained in the Army Act DATE , LAW ) DATE and LAW ( for which , see PERSON v. GPE , judgment of DATE , Reports of Judgments and ORG , § § DATE ) . From DATE ( after the conclusion of the applicant ’s court - martial ) LAW came into force which modified certain provisions of LAW DATE ( see , generally , PERSON the GPE [ ORG ] , no . CARDINAL , ORG , ORG CARDINAL-XII ; PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINAL-XII ) .", "The basic rule of the common law is that the jurisdiction of the criminal courts in GPE is confined to crimes committed within the territory of each court . An exception is provided by LAW , which gives jurisdiction to NORP courts in respect of alleged murders and manslaughters committed by NORP citizens anywhere in the world ." ]

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[ "The applicants , PERSON , PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively .", "The second applicant died on DATE . The other CARDINAL applicants are her sisters and only heirs . The first applicant also died on DATE . However , her daughter and only heir , PERSON , expressed her wish to pursue the application . For practical reasons , PERSON PERSON and PERSON will continue to be referred to as “ applicants ” in this judgment , although their heirs are now to be regarded as such ( see PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ECHR DATE ) .", "The third applicant lives in GPE . After the death of the first CARDINAL applicants , their heir was represented by the third applicant . ORG ( “ the Government ” ) were represented by their Agent , Mr Răzvan - Horaţiu Radu .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants inherited from their parents a house with annexes and QUANTITY . m of appurtenant land situated at QUANTITY , PERSON . On that land , at no . CARDINAL , the first applicant and her husband built a new house in which they continued to live .", "In DATE the applicants sold the old house with annexes and CARDINAL sq . m of appurtenant land inherited from their parents to ORG The sale contract stipulated that , according to the applicable law , the land passed into ORG ownership . The applicants did not receive any compensation . ORG was authorised to use QUANTITY . m of it while the buildings existed .", "On DATE ORG gave an enforceable decision allowing an action by the applicants for recovery of possession of QUANTITY . m of land against ORG . The court acknowledged their right of property over the land situated at CARDINAL , FAC , PERSON , and ordered the town council to respect the applicants’ right of property .", "On DATE the bailiff certified in an official record that the applicants could take possession of the CARDINAL sq . m of land . According to the documents in the file , that land included the QUANTITY . m mentioned in the DATE sale contract and seized by the ORG .", "Although there had been judicial recognition of the applicants’ right of property over the QUANTITY . m plot of land , the local commission in PERSON for the application of PERSON no . CARDINAL/CARDINAL ( “ the local commission ” ) authorised them to recover possession of QUANTITY . m of land .", "On DATE the county commission in GPE for the application of Law no . CARDINAL/CARDINAL ( “ the county commission ” ) rejected a complaint brought by the applicants concerning the decision of the local commission . It further authorised ORG to recover possession of QUANTITY m of land .", "On DATE ORG gave an enforceable decision upholding the ORG complaint concerning the decision of the county commission and authorised them to recover possession of the CARDINAL sq . m of land in GPE . The court considered that , as certified by the judgment of CARDINAL DATE , the applicants had a right of property over that land in their capacity as their GPE heirs .", "On DATE ORG gave a final decision allowing a complaint by ORG in respect of the decision of the county commission and acknowledged her right to acquire title to QUANTITY m of land .", "On DATE the ORG informed ORG that the local commission was unable to enforce the judgment in her favour as there was another judgment of CARDINAL DATE that had certified the right of property of the former owners of ORG ’s house over part of the QUANTITY . m of land . Notice of this situation had also been given to ORG of First Instance .", "On DATE ORG dismissed as groundless a request by the applicants for revision of contradictory final decisions by which they sought the annulment of the judgment of DATE . The court noted that the legal requirements for this action had not been met , as those decisions had not been given in respect of the same parties or with regard to the same object or the same procedural capacity .", "On DATE ORG brought an administrative action against the local commission seeking to take possession of the QUANTITY . m plot of land . She also referred to the judgment of CARDINAL DATE and eventually agreed to take possession of QUANTITY . m of land , as this was the portion of land the applicants had allegedly allowed her to use when she bought the house .", "On DATE ORG allowed the action and ordered the local commission to enable ORG to take possession of QUANTITY . m of land , as provided by the judgment of DATE . The court also noted that neither the judgment of CARDINAL DATE nor the judgment of CARDINAL DATE had been modified . A request by the applicants to intervene in the proceedings was dismissed .", "That judgment became final . In DATE ORG was authorised to take possession of QUANTITY . m of land and obtained a property title .", "On DATE the applicants brought an administrative action against the local and county commissions , seeking to take possession of the CARDINAL sq . m plot of land .", "On DATE ORG allowed the action in part and ordered the local commission to enable the applicants to take possession of QUANTITY . m of land situated at CARDINAL Ion Antonescu Street ( formerly QUANTITY Street ) , representing the difference between the land already given to ORG and the CARDINAL sq . m plot of land in respect of which the applicants had title . That judgment became final .", "On DATE the applicants brought civil proceedings against ORG seeking to recover possession of QUANTITY . m of land .", "On DATE ORG , after comparing the property titles , dismissed the applicants’ action on the ground that their title derived from civil proceedings and could be asserted only against the parties , whereas ORG had title under PERSON no . CARDINAL/CARDINAL . The court found , inter alia , that ORG had owned the QUANTITY . m plot since DATE and that the price stipulated in the sale contract would presumably have included the CARDINAL sq . m plot , not merely QUANTITY . m , because a seller had regard to what came out of his patrimony rather than to what entered into the buyer ’s . It also considered that ORG had not been a party to the proceedings ending with the judgment of CARDINAL DATE and that therefore that judgment was not enforceable against her .", "That judgment became final .", "On DATE the applicants requested the town council to annul the property title issued to ORG and to award them title to the CARDINAL sq . m of land . The town council considered that there were no legal conditions to justify proceedings for the annulment of ORG ’s title and subsequently dismissed the ORG request to authorise them to recover possession of the QUANTITY . m plot of land , on the ground that that land was not under the town council ’s administration .", "On DATE the applicants made a request under PERSON no . CARDINAL governing immovable property wrongfully seized by the ORG , seeking restitution in kind of the QUANTITY . m plot of land .", "On DATE the town council rejected their request on the grounds that , on the one hand , the CARDINAL sq . m plot of land had been conveyed to the buyer of the house under PERSON no . CARDINAL/CARDINAL and , on the other hand , the QUANTITY . m plot of land had not been seized by the ORG and was in the ORG ownership .", "The applicants contested that decision before the courts and the proceedings are pending .", "On DATE the third applicant , together with the heir of the first CARDINAL applicants , made a request under PERSON no . CARDINAL seeking to recover the CARDINAL sq . m of land .", "On DATE the county commission dismissed their request on the ground that it had the same object as the request brought under Law no . CARDINAL .", "On DATE ORG Instance dismissed an action brought by the third applicant , together with the heir of the first CARDINAL applicants , complaining about the decision of DATE and seeking to recover the land and to have ORG ’s property title declared null and void . The court allowed pleas of inadmissibility raised by the defendant , considering that the principle of res judicata prevailed as the judgment of CARDINAL DATE had recognised ORG ’s right of property over the CARDINAL sq . m plot of land referred to in the DATE sale contract . It held that the disputed land therefore belonged to ORG The court also mentioned , inter alia , that following that sale the difference of CARDINAL sq . m had remained in the applicants’ ownership . That judgment became final .", "So far the applicants have not received any title deed .", "On DATE the applicants informed the ORG that the town council was allowing them to use QUANTITY m of their land and that they were hoping to be provided with a property title accordingly .", "On DATE and QUANTITY DATE the authorities certified that the applicants were paying taxes on the QUANTITY . m plot of land ." ]

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[ "On DATE a preliminary investigation was opened against the applicant for robbery . On DATE , the applicant was charged with the offence and remanded in custody upon a decision of an investigator which was confirmed by the public prosecutor 's office . It was alleged that the applicant , together with another individual , had robbed an individual of CARDINAL old NORP levs ( ORG ; MONEY ( ORG ) ) and in the process had used force and rendered the victim unconscious . In ordering that the applicant be remanded in custody the investigator referred to , inter alia , the personality of the detainee , the gravity of the offence and , in general terms , the likelihood that he might abscond or re - offend .", "The applicant filed an application for release on DATE , which was dismissed by ORG on DATE . The court found , inter alia , that the applicant was charged with a serious intentional offence , which warranted mandatory detention , and that it was likely that he might commit offences against some of the witnesses , thereby obstructing the investigation . In conclusion , no evidence warranting an exception to the requirement of mandatory detention was found to exist .", "On DATE the applicant filed another application for release arguing , inter alia , that in the course of the preliminary investigation it had been established that the amount which he had allegedly taken from the victim had been only BGL CARDINAL ( approximately ORG CARDINAL ) because the latter had been robbed on CARDINAL occasion on DATE in question .", "The applicant 's application for release was dismissed by ORG on DATE , which found , inter alia , that the applicant was charged with a serious intentional offence , which warranted mandatory detention , that he might obstruct the investigation and that due to his lack of income he was likely to re - offend . In conclusion , no evidence warranting an exception to the requirement of mandatory detention was found to exist .", "On DATE the applicant filed his third application for release claiming , inter alia , that there was no evidence that he would abscond , re - offend or obstruct the investigation , that he suffered from jaundice and that his health was deteriorating as a result of his detention .", "NORP The applicant 's application for release was dismissed by ORG on DATE , which found , inter alia , that the applicant had been charged with a serious intentional offence , which warranted mandatory detention , that he was in good health and that there were indications that he might commit offences against some of the witnesses , thereby obstructing the investigation . In conclusion , no evidence was established to exist warranting an exception to the requirement of mandatory detention .", "The applicant contended that the charges against him were amended on DATE , which the Government did not challenge .", "The preliminary investigation against the applicant was partially terminated on DATE . The only outstanding charge against him concerned common robbery of ORG CARDINAL ( approximately ORG CARDINAL ) .", "The applicant filed his fourth application for release on DATE , which was examined by ORG on DATE . The court found in favour of the applicant and released him on bail of CARDINAL new NORP levs ( approximately ORG CARDINAL ) . It found , inter alia , that the applicant had no criminal record and had good character references , and that the preliminary investigation had already been completed .", "The applicant was released on DATE , DATE .", "The preliminary investigation against the applicant was further partially terminated on DATE as a result of its findings pertaining to the amount and currency of the stolen money . The only outstanding charge against the applicant concerned common robbery of MONEY ( approximately ORG CARDINAL,CARDINAL ) .", "An indictment against the applicant was filed with ORG on an undetermined date .", "In a judgment of an unspecified date ORG acquitted the applicant . That judgment was subsequently upheld , also on an unspecified date , by ORG .", "DATE and DATE the applicant was detained at ORG detention facility . From DATE to CARDINAL DATE he was detained at ORG .", "NORP The applicant contended , in respect of both detention facilities , that there had been ( a ) insufficient oxygen in the cells ; ( b ) inadequate hygiene , the use of a bucket for the sanitary needs of the detainees and the presence of parasites ( fleas and wood worms ) , skin infections ( scabies ) and rodents ( mice and rats ) ; ( c ) insufficient natural light ; ( d ) no special recreational area ; ( e ) unhealthy food ; ( f ) no access to literature , newspapers , magazines , radio or television ; ( g ) no possibility for the applicant to meet with his attorney in private at his initiative ; and ( h ) no possibility to maintain active correspondence .", "The applicant 's contentions in respect of the conditions of detention at the above facilities are corroborated by the signed declarations of CARDINAL other detainees , Mr PERSON and PERSON .", "The relevant provisions of LAW ( “ the ORG ” ) and the NORP courts ' practice before DATE are summarised in the ORG 's judgments in several similar cases ( see , among others , PERSON GPE [ ORG ] , no . ORG , § § CARDINAL , ORG CARDINAL-II , PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINAL ( extracts ) ) .", "On the basis of the relevant law before DATE , when ruling on applications for release of a person charged with having committed a “ serious ” offence , the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person 's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise ( see decisions of the domestic authorities criticised by ORG in the cases of NORP and PERSON , both cited above , and PERSON v. GPE , no . PERSON , CARDINAL DATE ) .", "The State and Municipalities Responsibility for Damage Act DATE ( the “ ORG ” : renamed in DATE ) provided at the relevant time that the ORG was liable for damage caused to private persons by ( a ) the illegal orders , actions or omissions of government bodies and officials acting within the scope of , or in connection with , their administrative duties ; and ( b ) the organs of the investigation , the prosecution and the courts for unlawful pretrial detention , if the detention order has been set aside for lack of lawful grounds ( sections CARDINAL - CARDINAL ) .", "In respect of the regime of detention and conditions of detention , the relevant domestic law and practice under sections CARDINAL and CARDINAL of the ORG has been summarised in the cases of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .", "The ORG visited GPE in DATE , DATE , DATE , DATE and DATE . All but its most recent visit report have since been made public .", "NORP ORG detention facility and ORG were visited in DATE .", "The ORG found that most , albeit not all , of the investigation service detention facilities were overcrowded . With the exception of CARDINAL detention facility where conditions were slightly better , the conditions were as follows : cells did not have access to natural light ; the artificial lighting was too weak to read by and was left on permanently ; ventilation was inadequate ; the cleanliness of the bedding and the cells as a whole left much to be desired ; detainees could access a sanitary facility twice a day ( morning and evening ) for TIME and could take a DATE shower ; outside of the CARDINAL daily visits to the toilets , detainees had to satisfy the needs of nature in buckets inside the cells ; although according to the establishments ' internal regulations detainees were entitled to a “ DATE walk ” of TIME , it was often reduced to TIME or not allowed at all ; no other form of out - of - cell activity was provided to persons detained .", "The ORG further noted that food was of poor quality and in insufficient quantity . In particular , the DATE 's “ hot meal ” generally consisted of a watery soup ( often lukewarm ) and inadequate quantities of bread . At the other meals , detainees only received bread and a little cheese or halva . Meat and fruit were rarely included on the menu . Detainees had to eat from bowls without cutlery – not even a spoon was provided .", "The ORG also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that , as a result , detainees ' contacts with the outside world were very limited . There was no radio or television .", "The ORG concluded that the NORP authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “ almost without exception , the conditions in the investigation service detention facilities visited could fairly be described as inhuman and degrading ” . In reaction , the NORP authorities agreed that the ORG delegation 's assessment had been “ objective and correctly presented ” but indicated that the options for improvement were limited by the country 's difficult financial circumstances .", "NORP In DATE the ORG recommended to the NORP authorities , inter alia , that sufficient food and drink and safe eating utensils be provided , that mattresses and blankets be cleaned regularly , that detainees be provided with personal hygiene products ( soap , toothpaste , etc . ) , that custodial staff be instructed that detainees should be allowed to leave their cells during DATE for the purpose of using a toilet facility unless overriding security considerations required otherwise , that the regulation providing for TIME exercise per day be fully respected in practice , that cell lighting and ventilation be improved , that the regime of family visits be revised and that pre - trial detainees be more often transferred to prison even before the preliminary investigation was completed . The possibility of offering detainees TIME outdoor exercise per day was to be examined as a matter of urgency .", "The ORG established that ORG detention facility had CARDINAL cells , situated in the basement , and at the time of the visit accommodated QUANTITY detainees , including QUANTITY women in a separate cell .", "Six cells measuring QUANTITY were designed to accommodate CARDINAL detainees ; the other CARDINAL , intended for CARDINAL occupants , measured CARDINAL - and - QUANTITY . This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the ORG . However , all the remaining shortcomings observed in the other investigation service detention facilities – dirty and tattered bedding , no access to natural light , absence of activities , limited access to sanitary facilities , etc . – also applied there . Even the TIME exercise rule , provided for in the internal regulations and actually posted on cell doors , was not observed .", "In this report the ORG found , inter alia , that the prison was seriously overcrowded and that prisoners were obliged to spend most of DATE in their dormitories , mostly confined to their beds because of lack of space . It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities .", "The ORG noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements .", "In most investigation detention facilities visited in DATE , with the exception of a newly opened detention facility in GPE , conditions of detention were generally the same as those observed during the ORG 's DATE visit , as regards poor hygiene , overcrowding , problematic access to toilet / shower facilities and a total absence of outdoor exercise and outofcell activities . In some places , the situation had even deteriorated .", "In ORG detention facility , as well as in CARDINAL other places , detainees “ had to eat with their fingers , not having been provided with appropriate cutlery ” .", "During DATE visit some improvements were noted in the country 's investigation service detention facilities , severely criticised in previous reports . However , a great deal remained to be done : most detainees continued to spend DATE on end locked up in overcrowded cells TIME a day .", "Concerning prisons , the ORG drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates ." ]

[ "3", "5" ]

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

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[ "NORP The applicant , Mr PERSON , is an NORP national who lives in PERSON . He is represented before the ORG by Mr PERSON , a lawyer practising in Rijsbergen .", "GPE on DATE and requested asylum . In the course of interviews held with immigration officials , he stated that he had been born on DATE . In DATE or DATE he had been taken away from his parents by soldiers of ORG , who had taken him to a military base where he had stayed for DATE and where he had received education . He had not been allowed to leave the LOC . During DATE of his stay at the military base , he had been trained to become a soldier . After having heard that he had to fight against troops of ORG for ORG ( “ ORG ” ) he had managed to escape the base with the help of his uncle , who had also been stationed there .", "During the first interview held with the immigration authorities the applicant consented to cooperate in an age - verification examination . This radiographic examination was performed on DATE and disclosed that the applicant was DATE and must thus have been born in DATE rather than in DATE .", "On DATE the applicant 's asylum request was rejected by the Deputy Minister of ORG ( staatssecretaris PERSON ) , who found that the applicant 's account could not be considered credible . The applicant lodged appeals , but eventually to no avail . After ORG ( rechtbank ) of GPE had quashed the rejection of the asylum request CARDINAL consecutive times for formal reasons or because it lacked adequate reasoning , the immigration authorities again refused to grant the applicant a residence permit for the purpose of asylum on DATE . The subsequent appeal of the applicant was rejected by ORG of The Hague , sitting in GPE , on DATE . ORG of ORG ( GPE bestuursrechtspraak PERSON , “ the NORP ” ) upheld the judgment of ORG on DATE . No further appeal lay against this decision .", "On DATE the applicant applied for a residence permit “ at the discretion of the Deputy Minister ” ( conform beschikking staatssecretaris ) , arguing that he had been residing in the GPE for DATE , during which period he had become integrated into NORP society and had developed personal , social and economic ties as a result of the course in electrical engineering he had been following , his membership of a football club , and his adherence to the GPE 's Witnesses .", "The request was denied by the Deputy Minister on DATE for the reason that the applicant did not hold a provisional residence visa ( machtiging tot voorlopig verblijf ) , which was to be applied for at a representation of the GPE in the country of origin and which is a prerequisite for the grant of a residence permit for purposes not related to asylum .", "NORP The applicant filed an objection ( bezwaar ) against this decision , arguing that he ought to be exempted from the visa requirement . The Deputy Minister dismissed the objection on DATE , after which the applicant lodged an appeal with ORG of The Hague , sitting in GPE .", "NORP In order to be able to await the outcome of the objection and , subsequently , the appeal proceedings in the GPE , the applicant also applied for a provisional measure ( voorlopige voorziening ) . By judgment of DATE , the provisional - measures judge ( voorzieningenrechter ) of ORG of GPE , sitting in GPE , quashed the Deputy Minister 's decision on the objection for lacking adequate reasoning . However , the judge upheld the legal consequences and , at the same time , rejected the request for a provisional measure . The provisional - measures judge reiterated that the ratio of the visa requirement for obtaining a residence permit for purposes not related to asylum lay in preventing the national authorities , prior to a decision on a person 's request for admission having been taken , from being confronted with a fait accompli as a result of that person 's presence in the GPE . Furthermore , the provisional - measures judge considered that the authorities were not under a positive obligation to exempt the applicant from the visa requirement , as the fact that the applicant had been allowed to reside in the GPE for DATE pending the asylum proceedings could not be considered a special circumstance on the basis of which he should be exempted from the visa requirement . No other circumstances had been submitted justifying the conclusion that the decision not to exempt the applicant from the visa requirement constituted an exceptional hardship ( onbillijkheid van overwegende ORG ) and neither had any such circumstances appeared . The provisional - measures judge added that since the obligation to leave the GPE in order to apply for a visa was in principle only temporary in nature , it was only in exceptional cases that the refusal to exempt an alien from the visa requirement would amount to an unjustified interference with that alien 's right to respect for private life .", "On DATE the ORG upheld the judgment of the provisional - measures judge . No further appeal lay against this decision . On DATE , the judgment of the ORG was sent to the applicant pursuant to LAW ( PERSON ) ." ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE , GPE .", "On DATE the applicants brought an action in trespass against their neighbours before ORG . The court held CARDINAL hearings between DATE and DATE and obtained an expert opinion . On DATE the court partly accepted the applicants ' claims .", "On appeal , on CARDINAL DATE the Borsod - Abaúj - Zemplén County Regional Court gave a partial decision . It upheld part of the first - instance decision , but quashed the remainder and remitted the case to ORG . It appears that the applicants ' repeated efforts to have ORG decision enforced were to no avail .", "In the resumed proceedings before ORG , hearings took place on DATE , DATE , DATE , DATE , DATE and DATE . On CARDINAL DATE ORG ordered that the proceedings be stayed under section CARDINAL § CARDINAL ( b ) of the Code on Civil Procedure because the applicants failed to appear at the hearing scheduled for DATE .", "On DATE the applicants requested that the proceedings be continued .", "Meanwhile , on DATE the applicants filed a petition for the review by ORG of the partial decision of DATE .", "ORG appointed a legal - aid lawyer , who subsequently had to be replaced twice at the applicants ' request .", "On DATE ORG eventually rejected the petition as inadmissible , without examining it on the merits , since the applicants had , despite warning , failed to contact the legal - aid lawyer and were therefore not properly represented before ORG .", "In the pending proceedings before ORG , the applicants were repeatedly requested to clarify their claims at the hearings of CARDINAL and CARDINAL DATE .", "At the applicants ' request , on DATE ORG appointed a legal - aid lawyer .", "NORP In its order of DATE ORG discontinued the proceedings in respect of the pending claims . On appeal , on DATE the FAC Regional Court quashed the first - instance order and remitted the file to ORG .", "In the resumed proceedings , the applicants requested ORG to hold a hearing in their absence because they felt that their presence at the previous hearings had been useless .", "At the hearing on DATE ORG dismissed the applicants ' claims . In the absence of an appeal , this decision became final on DATE .", "In DATE the representative of the building , in which the applicants lived , brought an action against them claiming overdue charges .", "On DATE ORG partly accepted the plaintiff 's claims . On DATE ORG dismissed the applicants ' appeal . On DATE ORG review bench refused to grant leave to appeal .", "In similar proceedings , on DATE ORG partly accepted some further claims for overdue charges . On DATE ORG dismissed the applicants ' appeal ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicants are :", "( CARDINAL ) PERSON , born in DATE ;", "( CARDINAL ) PERSON GPE , born in DATE ;", "( CARDINAL ) Mr PERSON , born in DATE ; and", "( CARDINAL ) Mr PERSON , born in DATE .", "They live in the village of ORG , in GPE .", "The first applicant is the mother of Mr PERSON , Mr PERSON and Mr PERSON , who was born in DATE . PERSON was the second applicant 's husband ; they are the parents of the third and fourth applicants .", "On DATE the first applicant and her sons , PERSON and PERSON , were working in a field outside the village of ORG . At some point they noticed a helicopter flying in circles above them .", "At TIME they rode home in a ZIL-CARDINAL lorry ; PERSON was driving . When they were within QUANTITY of the village of ORG , their vehicle came under heavy gunfire . Apparently the shots were fired from machine guns and came from the nearby forest . The first applicant was wounded in the back , neck and head . PERSON lost control of the lorry , which crashed into a roadside tree . The PERSON brothers took the first applicant , unconscious , out of the vehicle . Then PERSON ran to the village for help ; PERSON stayed with his mother . At some point the lorry exploded . Then the gunfire ceased .", "TIME PERSON , accompanied by PERSON , policemen and fellow villagers , arrived at the scene of the incident to find the first applicant lying on the ground and no trace of PERSON . The first applicant was then transported to hospital ; CARDINAL bullets were extracted from her body .", "Having heard about PERSON disappearance , the villagers started searching for him . At TIME on DATE CARDINAL of them , Mr NORP and PERSON , met in a forest a group of CARDINAL armed men speaking unaccented NORP . The armed men forced the CARDINAL villagers to the ground and questioned them . Then they contacted someone via a portable radio transmitter , ordered the villagers to lie still for TIME and left .", "In TIME of DATE a group of NORP servicemen , under the command of an officer with the rank of major - general , arrived at the scene of the incident . The major - general suggested that the PERSON had been attacked by unknown NORP insurgents and denied any possible involvement of NORP military personnel .", "At TIME on DATE PERSON dead body , with gunshot wounds and bruises , was found QUANTITY from the scene of the incident and QUANTITY from the place where Mr NORP and PERSON had met the armed men the night before . The corpse was partly covered with soil .", "At TIME on DATE unidentified persons were hiding in the forest on the left side of the road leading from the village of ORG at a distance of QUANTITY from the village of ORG . They fired from machine guns at the ZIL-CARDINAL lorry in which the first applicant , PERSON and PERSON were travelling . As a result of the shooting the first applicant suffered injuries to her neck and back , PERSON received tangential soft - tissue wounds and PERSON went missing .", "On DATE the dead body of PERSON was found buried at a distance of QUANTITY from the scene of the incident . The body bore traces of numerous gunshot wounds to the head and body .", "On DATE ORG released a paper entitled “ GPE : Abuses Spread Beyond GPE . Neighboring Ingushetia Now Affected ” , which described the PERSON ' case as follows :", "“ On DATE , CARDINAL Ingush civilians – sixty - DATE PERSON and CARDINAL of her sons , PERSON and PERSON DATE were returning from their potato field near the village of ORG , when their truck came under heavy machinegun fire , injuring ORG in the back , neck , and head . The brothers took their mother out of the car and PERSON stayed with her while PERSON ran to the village for help .", "Local Ingush police who arrived TIME found PERSON unconscious and sent her to the local hospital , but were unable to find PERSON . His body , bearing clear marks of torture and gun shot wounds , was discovered TIME in a nearby forest . The PERSON police said that evidence suggests involvement by federal servicemen , but the military procuracy has refused to take over the case .", "While ORG has in the past been the scene of clashes between NORP federal forces and NORP rebel fighters , ORG has no indication that any such activity took place in the area DATE . ”", "Later , ORG gave a more detailed description of the PERSON ' case in its article entitled “ Spreading Despair : NORP Abuses in GPE ” , issued in DATE .", "In TIME DATE investigators examined the scene of the incident . They found many used cartridges and an empty machine - gun cartridge belt , used bandages , empty water bottles , canned pork and plastic bags bearing ORG logo . The investigators took fingerprints from the bottles and tins . Then PERSON dead body was transported to the morgue .", "At TIME on DATE a forensic expert commenced a post - mortem examination of PERSON body . According to the forensic report , there were numerous gunshot wounds to the body , namely CARDINAL perforating wounds to the head ; CARDINAL penetrating , CARDINAL perforating and CARDINAL non - penetrating wounds to the chest ; CARDINAL perforating wounds to an arm ; a wound to a shoulder joint and a wound to a buttock . It was also established that PERSON lower jaw had been broken by a blunt hard item . The expert concluded that PERSON death had been caused by the penetrating and perforating wounds to the head and chest and that the lethal shots had been fired from machine guns aimed at PERSON while he had been either standing or lying down . The death had occurred CARDINAL before the beginning of the autopsy .", "On DATE PERSON was buried . His family received MONEY ( RUB ) from the President of ORG as a burial allowance , which was a common practice at the material time .", "On an unspecified date the head of the local administration confirmed in writing that there had been no armed clashes between the federal troops and rebel fighters in the area around the village of ORG DATE .", "On DATE PERSON wrote to ORG , ORG and the military prosecutor of ORG ( UGA ) , complaining about the military attack on his relatives and the murder of his brother .", "On DATE the prosecutor 's office of LOC of GPE ( “ the district prosecutor 's office ” ) informed PERSON that his complaint concerning the events of DATE would be examined within the course of the investigation in case no . DATE .", "On DATE ORG informed the second applicant that the investigation into the murder of PERSON in case no . DATE had been commenced by the district prosecutor 's office . It noted , in particular , the following :", "“ As a result of the investigative measures taken it was established that the crime had been committed by the servicemen of military intelligence unit no . CARDINAL KTG ( « разведрота CARDINAL КТГ DATE ) with the direct involvement of the head of that unit , [ PERSON ] , nicknamed ' the Snake ' ( « PERSON ) , who is unable to leave the location of the unit in the village of ORG in LOC as the military prosecutor 's office has charged him with another crime and instituted criminal proceedings on that account . ”", "On DATE a member of ORG received a letter from ORG stating that the investigation into PERSON killing had been suspended on DATE and resumed on DATE .", "On DATE the district prosecutor 's office instituted an investigation into the killing of PERSON under LAW ( murder ) and LAW ( unlawful acquisition and possession of firearms ) of LAW . The case file was assigned the number GPE .", "On DATE the crime scene was inspected and a post - mortem examination of PERSON body was ordered .", "On DATE the first applicant was granted victim status and questioned . She stated that at TIME on DATE , while she had been travelling with her CARDINAL sons in the QUANTITY lorry , unidentified persons had opened fire . As a result she had suffered wounds to her neck and back . PERSON and PERSON had taken her out of the car and brought her into the forest . PERSON had gone to the village for help , while PERSON had dragged the first applicant to a hill . At some point she had lost consciousness . The first applicant had recovered her senses after the arrival of the police and the villagers of ORG . PERSON had not been seen anywhere around . The first applicant had not heard any voices and did not know who had shot at the car .", "On DATE PERSON was granted victim status and questioned . He stated that at TIME on DATE their ZIL-CARDINAL lorry had been fired at from machine guns . The vehicle had hit a tree and stopped . PERSON and PERSON had taken their wounded mother out of the lorry and brought her into the forest . PERSON had asked PERSON to go searching for help , which PERSON had done . Having returned to the scene of the incident , PERSON , the police and the fellow villagers had found the first applicant , who had then been transferred to hospital . PERSON had disappeared ; on DATE his dead body had been found .", "On DATE Mr NORP and Mr O. were questioned . They stated that at TIME on DATE PERSON had run towards them and told them that the ORG lorry had been fired at . They had reported the shooting to the police and gone to the scene of the incident . There they had found the first applicant unconscious ; PERSON had disappeared . While searching for PERSON , Mr NORP and PERSON had stumbled across a group of armed men . The men had pointed their firearms at Mr NORP and PERSON , verified whether they had had any weapons and checked their identity papers . Then they had questioned Mr NORP and Mr O. about their reasons for being in the forest and left in the direction of the village of GPE . On the following day PERSON dead body had been found buried CARDINAL from the place where the witnesses had met the armed men .", "The investigators verified Mr NORP 's and PERSON statements . Within QUANTITY from PERSON grave they found an area with CARDINAL sleeping berths and the following items : empty plastic mineral water bottles , empty plastic bags , empty tin cans marked “ Boiled Buckwheat ” , “ PERSON ” , “ Liver Pâté with Pork Fat ” and other items bearing the stamp “ Military Supply of Provisions ” ( « Оборонпродкомплект » ) , a pair of worn socks , a piece of bandage with traces of blood and a portable remote - control detonator PM-CARDINAL No . CARDINAL CARDINAL - CARDINAL ( « переносная подрывная машинка ПМCARDINAL ORG ) .", "The items found at the scene of the incident , the ZIL-CARDINAL lorry and a bullet extracted from PERSON body were subjected to forensic , ballistic , dactylographic , medical , olfactory and biological expert examinations carried out in DATE and DATE .", "The ballistic expert examinations established that the bullet extracted from PERSON dead body had been fired from a PERSON machine gun of CARDINAL PERSON calibre . CARDINAL cartridge cases presented for examination had been parts of cartridges of CARDINAL PERSON calibre produced in GPE according to the DATE standards and suitable for NORP and ORG sniper rifles , as well as for PERSON machine guns . The cartridge cases in question had been fired from CARDINAL firearms . ORG belts presented for examination had been additional parts for a PERSON machine gun of CARDINAL PERSON calibre .", "The forensic expert examination established that the ZIL-CARDINAL lorry had had CARDINAL penetrating bullet holes that could have been fired from a firearm of CARDINAL PERSON calibre .", "The medical forensic expert examination found no traces of shots fired from short range on PERSON clothes .", "On DATE a dactylographic expert examination of servicemen of military intelligence unit no . CARDINAL KTG was ordered .", "On DATE the district prosecutor 's office requested the military commander of LOC of PERSON to submit a list of servicemen who had participated in search activities in the vicinity of the villages of ORG and ORG DATE and to carry out investigative measures in respect of them .", "The dactylographic expert examinations established that fingerprints left on the items found at the scene of the incident were not identical to those of the servicemen who had been checked regarding their possible involvement in the crime , including ORG", "The biological expert examination of saliva left on the cigarette butts found at the crime scene and the olfactory expert examination of the socks and the piece of bandage produced no significant results .", "NORP The investigators requested information on the portable remote - control detonator from the UGA . On DATE the head of engineer troops of ORG replied that portable remote - control detonators PM-CARDINAL No . CARDINAL issued in DATE had not been supplied to ORG armouries and had not been sent to its military units .", "The medical expert examination of the first applicant established that she had sustained mildly severe bodily injuries inflicted by hand - held firearms .", "On an unspecified date an investigation into the infliction of bodily injuries on the first applicant was instituted under LAW of LAW . It is unclear what number the case was assigned and whether any progress was made in the investigation .", "On DATE and DATE the district prosecutor 's office sent unspecified orders to ORG of the ORG and to the ORG military prosecutor respectively .", "On DATE the district prosecutor 's office sent an unspecified order to ORG of ORG .", "On DATE the district prosecutor 's office sent an unspecified order to the prosecutor of ORG .", "In DATE and DATE ballistic and dactylographic expert examinations were carried out .", "On DATE the fingerprints of GPE and CARDINAL servicemen of military intelligence unit no . CARDINAL KTG were taken and compared with the fingerprints detected on the cans found near the scene of the incident . None of the fingerprints left on the cans corresponded to those of the servicemen in question .", "On an unspecified date the firearms used by the servicemen of military intelligence unit no . CARDINAL KTG were subjected to a ballistic expert examination .", "DATE . On DATE the district prosecutor 's office sent an unspecified order to ORG of the ORG .", "On DATE the district prosecutor 's office sent an unspecified order to the UGA military prosecutor .", "On DATE the investigation was suspended .", "According to the Government , it follows from the investigation file that on DATE there was an armed confrontation between federal servicemen and a group of around CARDINAL insurgents in the vicinity of the village of ORG , as a result of which CARDINAL insurgents were killed and CARDINAL wounded . An intelligence squad under the command of Lieutenant S.P. participated in the confrontation . In their submissions of DATE the ORG submitted that it had been impossible to either prove or refute the involvement of GPE or other federal servicemen in the killing of PERSON .", "Lieutenant - Colonel GPE was questioned as a witness and stated that the information on the armed confrontation of the federal troops with the group of around QUANTITY insurgents , as a result of which CARDINAL insurgents had been killed and CARDINAL wounded , had been based on a report made by a duty officer of the ORG information centre and then issued as a press release . No other sources of that information had been found and its veracity was being checked .", "In their submissions of CARDINAL DATE the ORG stated that no reliable evidence had been obtained by that time to prove the involvement of GPE or other federal servicemen in PERSON killing .", "The investigation was resumed and suspended a number of times . It failed to find any evidence to support the involvement of the NORP federal military in the crime but was pending . Investigative measures were being taken to solve the murder of PERSON .", "NORP Despite specific requests by ORG did not disclose any material from the investigation file in 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 , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings .", "For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) ." ]

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

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[ "3" ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE the applicant was arrested on suspicion of homicide . She was first interviewed by a police officer . On DATE she was charged with murdering PERSON on DATE . On DATE she was questioned by ORG . During the questioning she stated that she had been having alcohol problems for DATE . She and ORG , a former work colleague , used to drink together . On DATE they had drunk QUANTITY of vodka and some wine . She also stated that she did not remember much of what had happened . She further confessed to killing PERSON Nevertheless , she stressed that she had not meant to kill the victim , but he had made her very angry and she had stabbed him with scissors .", "During the arrest and subsequent questioning by the police and the prosecution authorities the applicant was not assisted by a lawyer . On DATE the applicant signed the relevant form acknowledging that she had been informed of her rights , including the right to be assisted by a lawyer and the right to refuse to testify .", "On DATE the prosecutor ordered an expert report on the applicant ’s mental health at the time when the crime of which she was suspected was committed . The report was submitted on DATE . The applicant was considered to be criminally responsible .", "On DATE the applicant asked to be released from detention . ORG refused her motion on DATE . This decision was upheld by ORG on DATE .", "On DATE ORG appointed a legal - aid - lawyer for the applicant . On DATE the applicant appointed a lawyer of her own choice .", "On DATE ORG filed a bill of indictment with ORG ( PERSON ) . The applicant was indicted on charges of murder .", "NORP Throughout the trial the applicant maintained that she suffered from alcoholism . She retracted her confession made during police custody , alleging that she had been questioned under duress and forced by the police officers to make self - incriminating statements .", "On DATE ORG , having regard to the fact that the applicant was represented by a lawyer of her own choice , decided to withdraw the services of the legal - aid lawyer .", "The trial ended on DATE . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment . The court considered that the applicant ’s testimony during the trial had not been credible and had merely been her line of defence . The conviction was based on the applicant ’s statements made during the initial phase of the investigation and on evidence given by several witnesses .", "On DATE the applicant ’s lawyer filed an appeal against the judgment . He stressed , in particular , that there had been a violation of the applicant ’s right to defend herself in view of the deficiencies in the preliminary investigation .", "On DATE ORG ( Sąd Apelacyjny ) upheld the firstinstance judgment . The court held that the applicant ’s right to defend herself had not been infringed . It pointed out that as of DATE she had been assisted by a lawyer – first an officially appointed lawyer , then a lawyer of her own choice .", "On DATE the applicant ’s lawyer filed a cassation appeal with ORG ( Sąd Najwyższy ) . He maintained that there had been a violation of LAW ( c ) of the LAW in that the applicant had not been assisted by a lawyer at the preliminary stage of the investigation . He relied on the caselaw of ORG .", "On DATE ORG dismissed the applicant ’s cassation appeal . That decision did not contain any reasons .", "Pursuant to Article CARDINAL § CARDINAL of the DATE LAW , an accused who had proved that he or she could not afford legal assistance ( i.e. that the costs of such assistance “ would entail a substantial reduction in his and his family ’s standard of living ” ) could ask the trial court to appoint him a defence counsel .", "Article CARDINAL of the Code lays down the principle known as “ compulsory assistance of an advocate ” ( przymus adwokacki ) . That Article provides , in so far as relevant :", "“ An accused must have an officially appointed lawyer when ORG is competent to deal with his case as a court of first instance , a crime is involved within the meaning of LAW , or the individual is remanded in custody . The counsel must take part in the main hearing ; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary . ”", "This provision does not apply to the investigative stage of the proceedings but only after the case is sent for trial , as was expressly confirmed by ORG in its resolution of DATE ( III LOC ) ." ]

[ "6" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the ORG found that there had been a violation of LAW , following an application lodged by the applicant on DATE ( PERSON v. GPE , no . CARDINAL ) concerning the length of criminal proceedings brought against him for his membership of Dev - Yol ( NORP Way ) . By then the proceedings had lasted for DATE . ORG awarded the applicant MONEY ( MONEY ) in compensation .", "At the time of the ORG ’s judgment , the criminal proceedings against the applicant were still pending before ORG .", "The facts of the case thereafter , as submitted by the applicant , may be summarised as follows .", "On DATE the applicant attended a hearing before ORG , gave a statement and submitted the ORG ’s judgment of DATE in order to ensure that his case would be heard within a reasonable time .", "On DATE ORG sentenced the applicant to death , and then commuted his sentence to life imprisonment . The judgment was subject to appeal .", "In the meantime in DATE , LAW was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war , or for acts of terrorism . Subsequently , by PERSON no . CARDINAL , which was published on DATE , ORG resolved , inter alia , to abolish the death penalty in peacetime .", "On DATE ORG quashed the judgment of the first - instance court on the ground that the death penalty had been abolished during the course of the proceedings .", "On DATE ORG resumed the trial . On DATE it ordered , in absentia , the provisional detention of the applicant in order to secure a statement from him .", "On DATE ORG heard a statement from the applicant as regards the state of the case and revoked the detention order as having served its purpose . Subsequently , ORG held DATE more hearings .", "On DATE , at its fourteenth hearing , ORG delivered its judgment and sentenced the applicant to life imprisonment pursuant to LAW .", "According to the information made available to the ORG by the parties to date , the case is apparently still pending before ORG ." ]

[ "6" ]

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[ "The applicant , ORG , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant and her CARDINAL sisters , relying on LAW , invited the Prague - West Land Office ( pozemkový úřad ) to transfer into their ownership CARDINAL plots of land which had been expropriated from their mother in DATE and , some of them , had been transferred to the ownership of natural persons in an assignment procedure .", "On DATE the applicant signed an agreement with her CARDINAL sisters , who disclaimed their restitution rights in her favour .", "The applicant entered into restitution agreements with the Prague - West District Office ( okresní úřad ) on DATE . ORG gave its approval on DATE .", "A certain PERSON and PERSON , PERSON and PERSON and PERSON appealed against ORG approval , alleging that the plots of land had been lawfully assigned to them or that they had bought them in good faith from former assignees . On CARDINAL DATE ORG quashed the approval and sent the case back to ORG .", "The restitution proceedings terminated by a decision of ORG ( Ústavní soud ) of DATE .", "The relevant domestic law and practice concerning remedies for the length of judicial proceedings are stated in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant owns a flat in GPE . Based on a construction permit issued by GPE on DATE , construction works were commenced on neighbouring land to build an apartment block . The limitations concerning the height of the building were not respected and , as a result , the sea view from the applicant ’s flat , which is situated on the sixth floor , was blocked by the new building .", "On an unspecified date , the applicant initiated administrative proceedings against GPE for the annulment of the construction permit . He maintained that the permit was in breach of city planning regulations . On DATE ORG found in the applicant ’s favour and annulled the construction permit . On DATE ORG upheld the decision of ORG .", "The applicant asked GPE to enforce the decision of ORG , but his request was rejected .", "On DATE the applicant initiated compensation proceedings before ORG on account of the GPE ’s failure to implement the court order of CARDINAL DATE . He requested both pecuniary and non - pecuniary compensation , stating that the non - enforcement of the final court decision which had annulled the construction permit had diminished his flat ’s value .", "On DATE ORG partially upheld the applicant ’s claim , awarding him pecuniary compensation , but refusing non - pecuniary damages .", "On DATE ORG upheld ORG decision in respect of pecuniary damage . However , finding that the applicant was also entitled to non - pecuniary compensation , it quashed the judgment in this respect . Subsequent to this decision , the Municipality paid the pecuniary compensation to the applicant .", "On DATE ORG awarded MONEY ( GPE ) to the applicant in respect of non - pecuniary damage .", "On DATE , considering the amount of non - pecuniary compensation insufficient , ORG quashed the judgment of ORG once again .", "On DATE ORG insisted on maintaining its judgment . The applicant appealed .", "On DATE ORG quashed the judgment of ORG of DATE .", "On DATE ORG adhered to the decision of ORG and awarded the applicant GPE CARDINAL in respect of non - pecuniary compensation with statutory interest running from DATE .", "On DATE ORG rejected the appeal of the Municipality . The Municipality paid the due amount to the applicant ." ]

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[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE , GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant went to GPE during DATE and started work at a factory in GPE . A woman , PERSON , worked for another company but in the same factory building .", "In TIME of DATE , PERSON went to the factory to carry out some extra work . At TIME the alarm in the factory was activated and a security guard arrived TIME . He found PERSON walking around , very distressed , and she told him that she had been raped . He alerted the police and called for an ambulance which took PERSON to hospital , after she had made a formal report to the police .", "At the hospital PERSON was examined and marks on her arms were documented and photographed . A medical certificate , written by the chief physician , stated that PERSON had no injuries to her head or face but that she had some bruises and sore points on her arms . No injuries were discovered during the gynaecological examination . From notes made by a counsellor at the women ’s clinic , who met with PERSON TIME , it appeared that she had been very sad and had had difficulties eating but that she had wished to leave the hospital to go home to her daughter .", "On DATE , the applicant was picked up by the police and questioned at the police station . The police photographed him and told him that something had happened to a woman at the factory the previous evening and he replied that he knew nothing about it . Other persons were also questioned about the incident .", "On DATE PERSON was questioned by the police about the incident and stated inter alia the following .", "It had been her birthday on DATE and she had been celebrating it during DATE with her partner , C. They had eaten , drunk some alcohol and had had unprotected intercourse . At TIME she had gone to the factory to control a machine which needed to be checked from time to time . When she had entered the factory premises , she had not seen anybody but she had noticed that there were lights on in one of the halls . She had started to work and after a while she had heard a male voice say “ hello ” to her . She had turned around and said hello to the man and had then turned back to face the machine . The man had grabbed her from behind and forcing her to hold still by taking a strong hold of her right arm and , using the weight of his body , had raped her . She did not know whether he had ejaculated in her but she did not think so . She had tried to kick and hit him and suddenly he had let go of her and had walked away , without uttering a word . She had recognised the man , since she had seen him DATE in the factory . She described him as having short black hair , no beard , QUANTITY tall and of average build . She estimated that he was DATE but did not remember what he was wearing . However , he had carried a bag which was coloured pink , green and grey . After the man had left , she had started looking for a telephone in a state of panic and the alarm had gone off . She had run out of the building and a security guard had arrived and helped her .", "On DATE , DATE , the police also showed PERSON photographs of different men and she claimed to be “ quite sure ” that she recognised her assailant , pointing at a photograph which was not that of the applicant .", "During TIME PERSON committed suicide by taking an overdose of medication mixed with alcohol . C. found her in their home .", "DATE , on DATE , the applicant was arrested and , on DATE , the prosecutor pressed formal charges against him for rape . According to the indictment , in the evening of DATE the applicant had been on the factory LOC and there he had , by the use of physical violence , forced PERSON to have intercourse with him . The prosecutor invoked various written evidence , including the medical certificate and the notes made by the counsellor ( see above LAW ) , and requested that some witnesses be heard . Moreover , because PERSON was dead , the prosecutor invoked , with reference to LAW , section DATE , of LAW ( PERSON ) , the written statement given by PERSON to the police on DATE .", "The applicant denied the charge . He admitted that he had been working at the factory on DATE , but maintained that he had stopped working before TIME and had then cleaned up , taken a shower and left . He had put his work clothes in a plastic bag . He had seen no one in the LOC of the building when he had left and it had been dark everywhere . He could not say whether there had been lights on in the hall where PERSON supposedly had been working , since the door to that hall had been closed .", "After his arrest , a blood sample had been taken from the applicant and matched with sperm which had been found in PERSON ’s underwear and her vagina after the rape . The DNA - test revealed with certainty that the sperm came from the applicant and not from C.", "When confronted with this information , the applicant told the police that he had had intercourse with a woman unknown to him DATE before DATE . He alleged that he had taken refuge in a bus shelter as it had started raining and that a woman with a dog had come up to him and started talking in NORP . She had smelled of alcohol and , without further ado , she had sat down on top of him , unbuttoned his trousers and her own and they had had unprotected intercourse . She had then got up and left . It had all happened very quickly and he had been left bewildered . The reason why he had not recounted this incident before was that his family was about to arrive from GPE and he had been afraid that his wife would find out about it . Moreover , the police had not asked him about his private life during the previous interrogations and he had not known PERSON or who she was .", "During the trial before ORG ( tingsrätten ) in PERSON , the applicant was heard . He maintained his innocence and repeated what he had told the police during the interrogations . He further added that , when he had left the factory in the evening of DATE , he had been carrying his work clothes in a plastic bag . He did not own a bag like the CARDINAL described by PERSON to the police . However , a work colleague had a bag similar to the CARDINAL described . The applicant also stated that he had been married for DATE and that his wife and CARDINAL children had joined him in GPE in DATE .", "NORP Moreover , C. , PERSON ’s partner , testified during the trial , as did the security guard who had found PERSON and the counsellor from the women ’s clinic . Upon request by the applicant , a forensic biologist working at ORG ( Statens kriminaltekniska laboratorium ) also gave evidence , informing the court that , DATE after intercourse , sperm still found in the vagina could be used to carry out a DNA - test . If a woman had been with CARDINAL men , it was unlikely that DNA from CARDINAL of the men would show up on a test . Still , if DNA from CARDINAL man was found , it was not probable that the woman had had completed intercourse with someone else after the intercourse with the man whose DNA had been identified .", "ORG further visited the factory to see where the alleged rape had taken place .", "On DATE ORG convicted the applicant of rape and sentenced him to DATE years’ imprisonment and expulsion from GPE with a prohibition on returning before DATE . In its judgment it held , inter alia , the following :", "“ It has been rendered difficult to evaluate the injured party ’s statement since she could not be heard before FAC . This does not prevent the statement , together with the other parts of the investigation , from constituting sufficient evidence of the rape having occurred . In the opinion of ORG , the content and degree of detail of the statement are such that there is no reason to doubt the veracity of the information regarding the rape . That [ K ] has been subjected to abuse is further supported by what [ C ] , [ the counsellor ] and [ the security guard ] have said about her reactions at different stages following the abuse . The medical certificate further confirms the account [ K ] has given about how she was physically attacked , that is , by the attacker , among other things , having taken a strong grip on her arm . ORG finds no motive for why [ K ] would falsely claim to have been the victim of a crime . Neither is there any other reasonable explanation for why she would make a false statement in this regard . Thus ORG finds that [ K ] was subjected to rape as she reported and as set out in the charge .", "Turning to the question of [ the applicant ’s ] guilt , ORG makes the following assessment . Through the analysis by ORG of the existence of sperm in [ ORG ] vagina and underwear , it must be taken as proven that the sperm came from [ the applicant ] . This , in turn , proves that [ the applicant ] had sexual intercourse with [ K ] . [ The applicant ] has claimed that he had sexual intercourse in a bus shelter with an unknown woman , who must have been [ K ] , CARDINAL or DATE prior to the rape in question . Any questions to her concerning the alleged intercourse have not been possible . The information on how this sexual intercourse came about is in itself highly improbable . In addition , it is remarkable that [ the applicant ] did not mention the intercourse with the other woman until he had been informed about the results of the analysis by the forensic laboratory .", "According to [ K ] , [ C ] had an orgasm during their sexual intercourse earlier on DATE of DATE . This is confirmed by what [ C ] said during the police interview on DATE . From the account given by [ the forensic biologist ] , it can be concluded that , due to the fact that no sperm from [ C ] was found in [ K ] , it is not likely that completed sexual intercourse took place between them after sexual intercourse between [ K ] and [ the applicant ] had occurred .", "At a photograph confrontation on DATE , that is , DATE after the rape , when she was asked to point to the photographs of her assailant , [ PERSON ] pointed out a man who was not [ the applicant ] and said that she was quite sure about her observation . This circumstance suggests , in effect , that [ the applicant ] is not the perpetrator . However , circumstances do not suggest that the person whose photographs [ K ] singled out has anything at all to do with the rape or any connection with the LOC in question . [ K ] further stated during the police interview that she had recognised the man who had raped her as she had seen him in the factory on DATE and that [ C ] had told her that the man was “ NORP ” and worked in [ the ] factory in GPE . During the questioning of [ C ] , he confirmed that [ K ] told him that it was one of CARDINAL foreign men working at the [ factory ] that had raped her .", "ORG finds , through the information given by [ K ] and [ C ] , that [ K ] had the impression that her assailant was a person she had seen previously in the building , who worked there and who had been looking at her also on DATE . It should be noted that this information is in accordance with the information provided about [ the applicant ’s ] TIME on DATE . ORG further notes that the description [ K ] gave the police of the perpetrator ’s physical appearance and age corresponds well to [ the applicant ’s ] physical appearance and age . [ ORG ] identification of another man ’s photos at the photograph confrontation has , against this background , certainly importance but not decisive importance for the case .", "ORG considers the statements by [ K ] and [ C ] , about completed sexual intercourse between them in the daytime of DATE , to be reliable . The above - mentioned assessments by [ the forensic biologist ] , [ at ] ORG , regarding the presence of sperm in [ ORG ] vagina , therefore contradicts the assertion that [ the applicant ’s ] sexual intercourse with [ K ] had occurred before the completed sexual intercourse between [ K ] and [ C ] . The fact that sperm from [ the applicant ] was found in her underwear also contradicts this . Correspondingly , the circumstances supports that the sexual intercourse between [ K ] and [ the applicant ] was the last sexual intercourse which she had before the police arrived at the scene of the reported rape and , thus , that he committed the rape .", "The circumstances outlined above , taken together with [ the applicant ’s ] totally unlikely account of sexual intercourse in the bus shelter , lead ORG to find no reasonable doubt that he is the person who committed the rape in question . The charge is thus proven . ”", "As concerned the expulsion order , ORG noted that the applicant had only been in GPE for DATE and his family not even for DATE . His CARDINAL children went to school in GPE , but the oldest had already attained majority . Thus , since the crime of which the applicant had been convicted was of a serious nature , and he had only been in GPE for a limited time and would be able to keep in close contact with his family , it was justified to expel him for a fixed period of DATE . Moreover , in deciding the CARDINAL years’ imprisonment , the court took into account the detriment caused to the applicant by the expulsion and reduced the normal prison sentence accordingly .", "The applicant appealed against the judgment to ORG ( hovrätten ) of LOC , claiming that he was innocent and that he had not been given a fair trial since PERSON was dead and he , or his lawyer , had therefore never had the opportunity to put questions to her during the preliminary investigation or to cross - examine her during the trial . In this respect , he noted that DATE had passed between the alleged rape and the investigation leading to his arrest and pointed to several discrepancies in PERSON ’s testimony to the police . In particular , he pointed to the fact that she had not identified him during the photograph confrontation even though his photograph had been taken DATE before and he was the only one with a moustache . Since he had not had the opportunity to question her many doubts remained and , in these circumstances , his possibilities to defend himself properly had been impaired .", "On DATE , after having heard the applicant and all the witnesses whom had been heard before the lower court , as well as CARDINAL more witness heard upon request by the applicant , ORG upheld the lower court ’s judgment in full , with the exception that it prolonged the applicant ’s prohibition on returning to GPE until DATE . It found that , on the basis of the evidence been presented to it , there was no reason to make a different evaluation concerning the applicant ’s guilt and the seriousness of the crime to the one made by ORG . As concerned the expulsion order , the court considered that the applicant and his family had a relatively limited connection to GPE as they had been in GPE for DATE . Thus , since the applicant had committed a very serious crime , the prohibition on returning should be extended from DATE .", "NORP The applicant appealed to ORG ( ORG domstolen ) , maintaining that he had not benefited from a fair trial since he had been deprived of his right to question the victim and thereby properly defend himself . He further wished ORG to establish how much weight could be attached to the statement of a victim who had died before the defence had had a chance to question him or her .", "On DATE ORG refused leave to appeal and , on CARDINAL DATE , the applicant was expelled to GPE .", "Proceedings before the general courts in criminal cases are mainly governed by LAW ( rättegångsbalken ; hereafter “ the LAW ” ) , with amendments .", "LAW , section CARDINAL , of the LAW states that when the court is to adjudicate the facts of a case , it shall carefully evaluate everything that has occurred and determine what has been proved . This provision reflects the principle of free submission and evaluation of evidence ( principen om DATE bevisföring och bevisvärdering ) which prevails in NORP procedural law . It means that , as a main rule , there are no restrictions in law on the submission and evaluation of evidence . Thus , anything that may be of value as evidence in a case may , in principle , be presented during the main hearing . There is , for example , no prohibition against using hearsay evidence . However , the circumstances under which evidence has been collected or given will have an influence on the way in which it is evaluated . The item of evidence to be used shall generally be that which guarantees the most secure proof , in the doctrine referred to as “ the principle of the best evidence ” ( principen om bästa bevismedlet ) . Consequently , witnesses and injured parties shall normally give evidence during a court hearing , rather than the court reading the statements made during the preliminary investigation , to enable the parties to pose questions and scrutinise the statements more closely . This also improves the court ’s ability to assess their credibility and reliability and , thereby , to render a correct and well - founded judgment . Hence , NORP procedural law ( LAW , section CARDINAL , of the Code ) presumes that a criminal case is adjudicated after a main hearing which the defendant , witnesses and the injured party are summoned to attend and it allows for the use of written testimonies and the reading of statements made during the preliminary investigation only in a few , specific situations .", "Thus , LAW , section DATE , of the Code stipulates that a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed , if the person who has submitted the statement can not be heard before the court or if there are particular reasons for the statement to be relied on , regard being had to the costs or inconvenience that a hearing before the court may entail on the one hand and the advantages of a hearing before the court , the importance of the statement and all other relevant circumstances on the other hand .", "On a few occasions ORG has examined the question of evaluation of evidence in the light of LAW in cases where the prosecutor ’s indictment has been based to a large extent on statements from witnesses or injured parties who have not been heard by the court . In such situations , ORG has stated that the fact that the court has not had the opportunity to assess the credibility and reliability of a witness or an injured party , and that the accused has not been able to question that person , ought to entail that the statements are examined and evaluated with particular caution . Furthermore , ORG has found that it is of great significance whether the written statements have constituted the principal evidence against the defendant or whether his or her conviction has been supported by corroborative evidence ( see , for example , ORG DATE p. CARDINAL I and NJA DATE p. CARDINAL ) . Moreover , in the case ORG DATE p. CARDINAL , the injured party had not attended the main hearing but ORG had considered that the information submitted by the injured party to the police had to be given credit and therefore convicted the defendant of robbery . ORG , on the other hand , emphasised that LAW and its application and interpretation was of major importance in respect of the application of LAW , section DATE , of the Code . Thus , in the light of the ORG ’s case - law , ORG found that that provision of the LAW should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision . According to ORG , the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the LAW and therefore referred the case back to ORG for re - examination ." ]

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[ "The first applicant met ORG , the father of her children , in GPE while he was in prison . He had been sentenced on DATE to a life term of forced labour for offences that included robbery and attempted murder . He had several previous convictions for offences including theft , indecent exposure in the presence of a child aged DATE and rape of a minor aged DATE CARDINAL ( for the latter two offences he was given a pardon and his sentence was reduced ) . The sentence of forced labour for life was subsequently reduced to DATE forced labour following a pardon in DATE .", "NORP The elder child was born while ORG was still in prison . Subsequently , the first applicant and ORG married . On an unspecified date in DATE ORG failed to return to the prison and has remained on the NORP authorities ' wanted list ever since . In fact , ORG and the first applicant had travelled to GPE with their child .", "In DATE the younger son was born . However , the atmosphere in the family had begun to deteriorate . Arguments between the parents became worse and ended in outbursts of violence against the first applicant , who subsequently lodged a complaint against her husband ( the ORG has not been informed of the outcome of those proceedings ) .", "In the meantime , GPE , a social worker employed by social services in the GPE region , had built up a good relationship with the first applicant 's family . He was a former drug addict and was responsible for counselling a number of children from problem families who had been taken into care . He offered to look after the first applicant 's elder son without payment at DATE . She accepted , since both she and her husband were working , she had to look after the baby , and social services did not provide assistance with children DATE without charge .", "Shortly afterwards the elder son started to have health problems . The first applicant took him to hospital several times but the problems were initially attributed to an inadequate diet .", "NORP In DATE the first applicant said that she did not want PERSON to visit her son any more . He then started to see the child at the first applicant 's home and only in the presence of his parents . The first applicant sought to stop him seeing her son , but that had psychological repercussions on the boy , who tried to see PERSON without his parents ' knowledge .", "A short while later the boy informed a friend of the family about “ unusual games ” in which ORG had persuaded him to participate on several occasions . On learning of their son 's admission , the first applicant and her husband lodged a formal complaint with the police on DATE .", "An investigation was started . The investigators rapidly discovered a number of factors showing PERSON to be at the centre of a paedophile ring . In particular , he was accused of having indecently assaulted several children since DATE by taking advantage of his connections with social services and his role as a social worker ( some of his presumed victims had been placed in homes and CARDINAL even entrusted into his care by ORG ) . PERSON was also accused of selling photographs taken during his sexual encounters with children , including the first applicant 's elder son , and of running a drug - trafficking ring .", "On DATE the investigating judge ordered , inter alia , PERSON 's arrest . The judge noted that GPE , a former drug addict , had feigned a desire to reform and thereby succeeded in gaining access to public institutions responsible for the protection of children and had taken advantage of the children that both individuals and the public authorities had entrusted into his care . He was convicted at the end of the proceedings at first instance .", "Meanwhile , social services began to examine the situation of the first applicant 's family more closely . In a report of DATE , the case worker , PERSON , stated that there was a serious conflict between the parents ( the first applicant had complained about the situation to various authorities DATE ) and difficulties in securing their effective cooperation . In a second report of DATE a deterioration in the situation was noted . Furthermore , PERSON said that the younger child was not attending nursery school regularly because of minor ailments , while the elder child was described by his teachers as an intelligent and very active child .", "On DATE ORG ordered that the children and their mother should stay in a home designated by social services . It referred in particular to the complaint concerning the sexual abuse allegedly suffered by the first applicant 's elder son .", "In a report of CARDINAL DATE , social services indicated that it was difficult to find a home ready to accommodate both the children and their mother . Moreover , the first applicant had refused to be separated from her children and the elder boy had said that he wanted to stay with her . All CARDINAL were provisionally accommodated in a hostel ran by ORG , a charity . On the first applicant 's initiative , the children began to attend school again . Social services also described the first applicant in that report as being unstable and fragile .", "In DATE social services noted that it was impossible for ORG to continue to provide a home for the first applicant . They also said that she seemed incapable of following a suitable programme for the protection of the children and that there were doubts as to her effective capacity to look after them . In addition , she had continued to see a man both on and off the LOC and indicated that she wanted to return home , as her husband was no longer violent towards her .", "A neuropsychiatrist employed by the local health authority stated in a report of DATE that the first applicant appeared to be suffering from personality disorders . The relevant passages from the report read as follows :", "“ ... PERSON ... appears incapable of gauging reality and adapting her behaviour appropriately . She seems very confused about how to recount matters and about irrational acts . She is incapable of distinguishing between what is good and what is bad for the child and therefore incapable of protecting him ; she alternates between times when she appears very childlike , in accordance with the idealised image of the mother , and times when she places PERSON in an adult role with seductive and subtly perverse traits .", "I can conclude that PERSON ... presents a serious personality disorder that at times affects the sphere of knowledge and ideation and at others the emotional and relational sphere , and that the hypothesis of a clinical ' borderline case ' can be advanced .", "As matters stand , Mrs ... shows that she is not capable of managing the extremely complex family situation and PERSON 's particularly sensitive situation , still less of creating a sufficiently positive environment for him . ”", "It was noted in a school report of DATE that the elder boy was becoming increasingly agitated and that the first applicant 's attitude to both her son and school staff had tended to be highly erratic : at times aggressive , at others attentive . According to the school , it had proved very difficult to establish a constructive dialogue with her . A report by the social worker DATE confirmed the elder boy 's increasing difficulties .", "On DATE ORG ordered the elder son 's placement in another home . The parents challenged that decision on DATE . On DATE ORG stipulated that the placement would DATE and was intended to provide an opportunity for the child 's behaviour to be monitored . However , the boy manifested his dislike of that solution and ran away from the home , returning to his parents . Social services nonetheless insisted that he should remain in the home .", "It was stressed in a private medical report lodged at the time that the boy , who was in terror of the priest who ran the home , needed a peaceful environment rather than to be surrounded by other children whose past was just as tragic as his own .", "The younger child was transferred to another home in the meantime .", "On DATE , at the end of a meeting attended by , inter alia , social workers and specialists who had been supervising the first applicant and her children , the representatives of the relevant social - services department concluded that the children needed to be separated from their natural family and recommended their placement in a community , “ FAC , which was organised as an agricultural cooperative .", "On DATE ORG ordered the CARDINAL children 's placement at “ GPE ” , pursuant to LAW ( Condotta del genitore pregiudizievole ai figli – “ parental behaviour harmful to the children ” ) , suspended the father 's and the mother 's parental rights pursuant to LAW DATE “ lapse of parental rights ” ) , ordered that if the parents refused to comply , the decision was to be enforced with police assistance , and granted the parents the right to visit the younger son only , such visits to take place on the cooperative 's LOC and in the presence of members of its staff . ORG observed , inter alia , that the parents had been uncooperative and had on CARDINAL occasion taken the elder child from the home where he had previously been staying despite the protests of his carers . It also criticised the parents for having exposed the elder boy to a tragic situation – of which he had been the victim – over a lengthy period , without exercising the supervision which was expected of them as parents , or being alert to the alarm signals given by the child . Conversely , those signals had not escaped the attention of school staff , who had tried in vain to establish a dialogue with the family . Lastly , ORG ordered social services to monitor the children 's situation closely and to produce a proposal for the children 's rehabilitation , based on what was observed .", "The case file reveals that at DATE the cooperative was the subject matter of a criminal investigation into acts of bestiality and paedophilia allegedly committed there by CARDINAL of its founder members . CARDINAL of them , L.R.F. and GPE , were arrested and later released , but nevertheless committed for trial .", "On DATE ORG convicted PERSON and GPE of , inter alia , the ill - treatment and sexual abuse of persons who had stayed in the home ( they were acquitted on the other counts as there was insufficient evidence ) . ORG considered it appropriate to examine the evidence against the accused in the light of the situation at “ GPE ” : leaders at the home sought to sever relations between the children in their care and their natural parents , while homosexuality was rife . Relying , inter alia , on the evidence of witnesses and partial confessions by the accused , ORG found the case proved , in particular , on the following counts :", "( i ) both PERSON and GPE were guilty of ill - treating a handicapped CARDINAL-year - old girl who had stayed at the home for DATE by , inter alia , hitting her several times a day , insulting her in the presence of others , preventing her from communicating with the outside world and mocking her physical appearance . In addition , ORG had spat in her face and , as an act of contempt , exposed himself to her .", "( ii ) L.R.F. was also found guilty of having sexually abused ( atti di libidine violenti ) CARDINAL mentally handicapped males , on CARDINAL occasion in the presence of a CARDINAL-year - old minor .", "L.R.F. was sentenced to DATE imprisonment and GPE to DATE imprisonment . They were nonetheless granted a stay of execution and the order banning them from holding public office was quashed . They also received an amnesty for an offence of wrongfully holding themselves out ( usurpazione di titolo ) as psychologists holding diplomas from the universities of GPE and GPE .", "Their appeal to ORG was dismissed on CARDINAL DATE .", "Both men remain on the staff working at the cooperative . In addition , CARDINAL of them , ORG , was present during the aforementioned contact visit on DATE , which ended with the relevant social services department recommending to ORG that the first applicant 's children be placed at “ FAC . According to the most recent information available to ORG is currently the president of that community .", "The case file and , in particular , CARDINAL of the books published on “ GPE ” ( PERSON , GPE , DATE ) , revealed that some of the people working in the community , or who have been staying there , come from problem families and have suffered violence at the hands of paedophiles .", "In support of her allegations , the first applicant has also produced various statements in writing , beginning with statements by CARDINAL people who have given their identity and whose respective niece , sister and daughter stayed , for various reasons , at the community in question . The relevant extracts are set out below .", "Statement of the first witness :", "“ ... the little girl recognised me and came towards me ; a man standing next to her , came towards us and told us to leave ... I went to ' PERSON on another occasion in DATE ... I tried a number of times but always received negative replies ... ”", "Statement of the second witness :", "“ ... the girls who went to ' PERSON were malnourished and demoralised . My sister was CARDINAL of them . When she returned to my mother 's house she did n't speak and could n't express her ideas coherently ; my mother and I had to feed her with a teaspoon for DATE ... ”", "Statement of the third witness :", "“ ... in DATE , late in the TIME in the presence of other members of the family , she was so frightened that she could not even manage to explain and kept repeating that she did not want to go back to ' PERSON . That made us aware that terrible things are going on at ' PERSON . She had to go back because they were blackmailing her ... She had in the past been hit by ... PERSON for refusing to participate in certain acts of violence which she did not want ... I am prepared to give evidence before ORG . ”", "The applicants have also produced CARDINAL other witness statements in writing . Both are signed .", "The first is by a municipal councillor from a village in the region . She affirmed that the children 's guardian , whom she already knew and to whom she had referred for information on the case , had advised her not to get involved . Furthermore , according to her statement , PERSON had invited her to visit the community after she had expressed doubts about it in public at a ceremony for the presentation of CARDINAL of the books published on the community . Despite her repeatedly expressed wish to meet the children , she was consistently denied an opportunity to do so , various reasons being given .", "The second statement was made by CARDINAL officially assigned experts working for ORG who had had a role in the case concerning the first applicant 's children . According to their statement , the CARDINAL experts – CARDINAL a neurologist , the other a psychiatrist , and both directors of a family - therapy medical centre in GPE – had asked “ PERSON ” to allow trainees from the centre to work at the community or at least to visit it . On each occasion , their requests were turned down for reasons which the experts found “ absurd ” , such as , for example , the fact that the community was not a public institution . A student from the centre , attending a training course recognised by GPE in DATE , had nonetheless managed to gain access to the community during his studies . During his visit he learnt from one of the leaders of the home that the families looking after the children were not necessarily the ones formally named in the court order .", "The applicants also referred to passages taken from CARDINAL of the books published on the community ( PERSON , GPE , DATE ) .", "They quote , inter alia , the following passages relating to the vexed issue of the presence of certain adults at the home :", "“ Therefore , they each decided to share a mutually enriching experience with the others which would assuage the affective deficiency which had been their driving force ” ( p. CARDINAL ) . “ Thus each member found and continues to find , through this experience , a sense of belonging , cohesion and love which elsewhere , in his family of origin , was lacking ” ( p. CARDINAL )", "The applicants also quote the following passage , which refers to the authorities implicated in the criminal proceedings against some of the leaders of the community :", "“ DATE have passed and the case has become clearer as the evidence of the machinations against them , which even DATE is kept in the villa , has been gathered . Even in that regard they display a NORP attitude which , frankly , I envy . DATE , they could easily bring criminal proceedings or an action in damages against certain judicial officers , but do not do so ... At the time , the behaviour of the judicial authorities was schizophrenic . While making accusations against ' PERSON via ORG , they continued to place children in the care of that structure through ORG . S ... was put into R ... at precisely that time ” ( p. CARDINAL )", "Within the community , the children were put into the care of PERSON PERSON and PERSON , the couple designated in the court order of DATE . The applicants allege that by DATE the first applicant 's elder son , despite being of school age , had still not started school . In fact , he was enrolled on DATE and began lessons on DATE .", "On DATE and DATE respectively the children 's guardian and the public prosecutor applied to ORG for an order temporarily suspending contact with the younger boy , too .", "DATE . On DATE the first applicant complained to Judge PERSON of ORG that since that court 's decision of DATE she had been given no further opportunity to see her children .", "On DATE the psychology unit at the local health authority ( Unità sanitaria locale ) certified that the first applicant was in good psychological health .", "On DATE ORG noted that contact between the parents and the younger son had not yet begun . In view of the pending applications by the guardian and the public prosecutor , it ordered the appropriate child - neuropsychiatric centre to verify whether the time was ripe for a resumption of parental contact .", "On DATE the first applicant made representations to the guardianship judge requesting execution of ORG decision concerning contact with the younger son .", "Other attempts by the first applicant to see her younger son by going directly to “ FAC ” were unsuccessful . Subsequently , there was a deterioration in relations between the first applicant and certain leaders of the community responsible for her children . The latter lodged a complaint against her accusing her of having threatened and assaulted them verbally and physically . They alleged that , on CARDINAL occasion , she had done so with the assistance of her former husband , whom , they said , she continued to see ( a letter relating the incidents was sent on DATE to the public prosecutor and to ORG ; it bore the signature of GPE ) .", "On DATE the first applicant requested ORG to rescind its decision of DATE because of a change of circumstances in the interim , she and her husband having just separated . She added that the realities of children 's homes were often “ ambiguous ” .", "On DATE the first applicant made a further complaint to ORG . She said that “ GPE ” had repeatedly refused to allow her to see her younger son and had disregarded the court 's decisions . She requested it to obtain the information needed to establish whether the community was really defending the children 's interests , not just private ones .", "On DATE the elder child was questioned by the public prosecutor 's office . According to the record , the interview took place in the presence of the foster parents , Mr PERSON and PERSON , though CARDINAL of them ( probably PERSON ) signed the record using GPE 's surname ( see paragraph CARDINAL below ) .", "On DATE the first applicant was served with notice to attend a hearing before Judge PERSON of ORG . At that hearing , she informed the judge that certain leaders of “ GPE ” had been prosecuted in the past for abuse and violence against people who had stayed in the community .", "Following the various steps taken by the first applicant , ORG noted in an order of DATE , firstly , that the initial examinations conducted by the child - neuropsychiatric centre showed that , while displaying open - mindedness , the younger child had at the same time denied his past and his parents . In particular , he had referred to his mother only on repeated prompting by staff from the centre . Observing that the child appeared to be in the process of coming to terms with a particularly difficult first phase in his past , ORG considered it necessary for contact between the first applicant and her younger son to be preceded by preparatory sessions for both mother and child . The child was to be counselled by the social services department already responsible for his supervision , and the mother by the relevant psychology department . The court also ruled that contact could start once the preparatory work had been completed and the child had shown himself ready to resume relations with his mother . Lastly , it said that the contact was to be supervised by the social workers concerned , while the relevant authorities were to inform it when contact could begin and to advise on progress .", "On DATE the first applicant informed the NORP embassy in GPE of the danger presented by the community . She requested the intervention of the NORP authorities .", "On DATE the younger child was examined by a specialist . He was accompanied by Mr PERSON and PERSON , as foster parents .", "Subsequently , the relevant social services department held preparatory sessions with the first applicant on DATE , CARDINAL May and DATE . The children attended several sessions with a neuropsychiatrist and were also required to take part in a number of logopaediatric sessions .", "There was a meeting of all the services concerned on DATE , at the end of which CARDINAL initial contact visits between the first applicant and the younger child , each lasting TIME , were arranged for CARDINAL and DATE . The visits were to take place in the presence of various specialists , including a social worker from the area in which “ GPE ” was located , who was to accompany the child . The specialists were to observe the visits from behind a CARDINAL - way mirror .", "The first applicant had requested that her lawyer also be allowed to attend the visits and informed ORG of that request . However , it was turned down on the ground that the presence of undesignated persons was not envisaged and , in addition , the therapeutic nature of the arrangements made it necessary to restrict attendance to the specialists from public bodies .", "On DATE , however , the first applicant said that she was unwilling to see the younger child without his brother in view of the probable suffering that the elder child would endure on learning that only his younger brother was to be allowed to meet their mother . On DATE , PERSON , a psychologist from social services , invited the first applicant to inform her whether she intended to stand by that decision and warned her that , unless she received a response , the contact visit would be cancelled . At that point , the first applicant changed her mind .", "On DATE , CARDINAL of the CARDINAL leaders of “ GPE ” convicted in DATE , sent a letter to the deputy public prosecutor at ORG concerning the first applicant 's children . In the letter , he stated , inter alia :", "“ ... we do not want the children to nurture absences which could develop into internal fantasies and consequently bring contact with their parents to an abrupt and definitive end , but we consider it very important to put off such contact to a more suitable moment and to give the children sufficient time to absorb the negative and guilt - ridden images which their parents evoke ... ”", "On DATE the deputy public prosecutor informed ORG that an investigation had been opened concerning the first applicant and her former husband , who were suspected of abusing the children . The deputy public prosecutor also drew ORG attention to the fact that the scheduled contact visits between the first applicant and the younger son , which he said he was aware of , could jeopardise the investigation as an expert examination due to continue throughout DATE was under way in order to determine whether that child presented symptoms of sexual abuse . He indicated that during recent interviews with a specialist , the child had begun to reveal matters of relevance to the accusation against his father , and added that he could not exclude a like accusation subsequently being made against the mother .", "On DATE ORG decided provisionally to suspend the contact visits scheduled for CARDINAL and DATE , pending the outcome of the new investigation . It considered that the investigation , in connection with which an expert psychological examination of the younger son had been ordered , might be hindered by the visits .", "DATE . On DATE the elder son was questioned . Mr PERSON and PERSON were once again present as the “ foster parents ” .", "In a note of DATE , the public prosecutor repeated that it was necessary for the children to be heard in connection with the investigation and desirable for them to be kept safe from any intimidating behaviour on the part of the parents that might undermine their recently recovered composure and compromise the results of future examinations . He stated in his memorandum that the children would be questioned as soon as possible regarding the matters disclosed in the psychologist 's report , which matters would be communicated to ORG once the confidentiality obligations that attached to the proceedings under way had been lifted .", "In addition , ORG , a neuropsychiatrist responsible for assessing the children , stated in a report of CARDINAL DATE that a programme designed to help them renew contact with their parents was being prepared with the foster parents .", "On DATE the second applicant lodged an initial application for an order granting her parental rights over the children .", "On DATE she requested permission to see the children at least twice DATE .", "On DATE she made a further application to ORG for permission to see the children . She said that she had not seen them since DATE and had learnt of the events that had resulted in ORG placing the children in a community indirectly ( de relato ) .", "At the end of the hearing on DATE , which the second applicant attended , ORG instructed the relevant child - psychology and neuropsychiatry departments to provide preparatory counselling to the children and their grandmother before contact began . ORG noted that the latter had shown a real interest in renewing relations with the children and had indicated a willingness to follow the programme of counselling to be organised by the court - appointed services .", "Subsequently , the second applicant nonetheless appealed against that decision , her principal claim being to parental rights over the children . In the alternative , she asked to be allowed to see them at least twice DATE without prior counselling , since she was in any event prevented from attending such a course as she could not remain in GPE . In support of her application she contended , inter alia , that the application she had lodged in DATE had still not been examined and that she had looked after the elder boy in the past .", "DATE . On DATE ORG dismissed her appeal . It stated , in particular , that it failed to comprehend why the second applicant could not remain in GPE to attend the preparatory course arranged by the specialists , since she had asked to see the children at least twice DATE , which would inevitably mean her travelling to GPE on a regular basis . ORG also considered that counselling was essential in view of the gravity of the events , which had seriously marked the children , and of the need to avoid jeopardising the delicate task of rehabilitation on which the specialists had embarked . Lastly , removing the children from GPE might hinder progress in the pending criminal investigation into offences that may have been committed by the parents .", "Meanwhile , on DATE the second applicant had requested the NORP consulate in GPE to have “ GPE ” inspected by the NORP diplomatic authorities . The NORP diplomats did not note anything untoward during their visit .", "On DATE the second applicant requested the NORP authorities to seek the transfer of the children to GPE under the LAW concerning the powers of authorities and the law applicable in respect of the protection of minors concluded at GPE on DATE .", "On DATE ORG examined the first applicant 's application of DATE , the second applicant 's application of DATE and the guardian 's application of DATE . It began by reconsidering its decision of DATE and ordered that the counselling programme in preparation for contact between the CARDINAL applicants and the children should begin immediately . The meetings were to start on DATE at the latest . As regards the second applicant , ORG considered that her recent move to GPE would facilitate the implementation of the preparatory programme . It nonetheless renewed its orders suspending parental rights and for the children 's placement at “ GPE ” , as the first applicant 's domestic situation remained very difficult DATE despite her separation from the children 's father DATE while the children had adapted very well to their foster home . Lastly , ORG also envisaged a resumption of relations between the children and their father , who had shown a willingness to re - establish contact . Contact visits by the father could not , however , start before DATE , owing to the uncertainty of his position while the criminal investigation was pending .", "On DATE a judge of ORG informed ORG that , in order to ensure continuity , it would be responsible for continuing the work of counselling for the visits ordered by the court on DATE . The court observed that the first applicant had requested that contact visits should commence .", "On DATE the Sesto Fiorentino Social Services Department declared that it had no power to organise the counselling , as the first applicant had moved and the social worker hitherto assigned to her case had been transferred in the meantime .", "On DATE the NORP ORG assigned a social worker to monitor the first applicant 's progress . When giving evidence to ORG on DATE the social worker admitted that she was unfamiliar with the case , but said that she was conscious of the urgency of the situation and undertook to prepare the mother for contact with her children by DATE , the deadline set by the court .", "On DATE a social worker from GPE ( Mrs S.C. ) and the child - neuropsychiatrist , PERSON , who were responsible for monitoring the progress of the first applicant 's children and who had already prepared a programme of meetings with the children and the foster parents , informed ORG that they had reservations as to the appropriateness of their being asked to counsel the children 's father and grandmother with a view to contact . According to the social services department , there was a danger that the close proximity of the children would create tensions , added to which it did not know either the father or the grandmother . For those reasons , it suggested that they should receive preparatory counselling from their local social services .", "On DATE the Head of the NORP Valdarno ORG informed ORG that it was encountering difficulties in obtaining all the documents relevant to the case . She proposed that the court should therefore convene a meeting of all the specialists and social workers involved .", "On DATE ORG replied , inter alia , to ORG of PERSON and PERSON ; it informed them that the court proceedings had finished and that , accordingly , the administrative and organisational matters were to be dealt with by social services . It remarked , too , on the length of time that social services had taken since its decision and reminded them that they should be giving it their urgent attention .", "On DATE the NORP ORG convened a meeting of all the social services departments involved . On DATE ORG informed the children 's guardian that the programme of pre - contact counselling had begun in DATE .", "On DATE the elder boy sent a letter to the president of ORG . Among other things he said that he had not seen his grandmother for DATE and did not understand why she would want to see him again . As to his mother , he said that she had always sought to justify the conduct of his “ social workers ” , even though he had informed her of their conduct . It was only on arriving at “ GPE ” that he had been able to comprehend , thanks to PERSON and PERSON , what he had been through and what it meant to have a father and mother . For those reasons , he did not want to see his mother at that stage . ( He signed the letter using the surname of one of his official foster parents at “ GPE ” , before also adding his own surname . )", "On DATE ORG informed ORG that the various tasks had been assigned . However , it was not possible to set a date for the visits to begin as PERSON was now reluctant to see his mother immediately after seeing a specialist on CARDINAL DATE ( see paragraph QUANTITY below ) . It added that the meetings with the grandmother and the father would begin during a second phase .", "DATE PERSON informed ORG that after his experience with the specialist he did not wish to meet his mother or grandmother for DATE .", "After the first applicant had received preparatory counselling , the initial contact with the children nonetheless took place on DATE . PERSON , so it appears , preferred not to leave his younger brother to see their mother on his own . According to the reports of social services dated DATE and CARDINAL DATE , that first visit showed that both the children and the mother were experiencing difficulties . The mother was not sufficiently receptive to what the children said , while they perceived her insistence as a threat to the stability of their new environment . The children had been mistrustful from the outset of the visit and the younger child had not even acknowledged that the first applicant was his mother . Social services observed that despite the children 's wish to see their mother , they had been disappointed .", "NORP However , having viewed the video recordings of that first visit produced by the Government ( see paragraph CARDINAL above ) , the ORG has found nothing to support the appraisal and unfavourable comments of social services to which the ORG refer . The visit took place in a room in the psychology unit at the social services department . It was friendly and the atmosphere was reasonably relaxed . Towards the middle of the visit the elder son began to cry , very probably when old wounds from his dramatic past were reopened . The episode was brief , he appeared relieved afterwards and calm was quickly restored between the first applicant and the children . Social services displayed an evident lack of tact towards the first applicant . CARDINAL people – either social workers or specialists – were present in the room throughout the visit so that the first applicant was at no stage able to enjoy any intimacy with her children , added to which , the visit was ended rather abruptly . The ORG 's view is that overall , though tense , the relationship between the first applicant and her children was warm and relaxed . The first applicant behaved responsibly throughout the visit , proved ready to cooperate and was respectful . Although the children did not manifest any obvious regret when the visit ended , the ORG considers that the terms summarised above which social services used in their reports to describe the visit were unduly dramatic and unfavourable to the first applicant , and do not correspond to what was seen on the video recording produced by the respondent Government .", "That notwithstanding , the elder child wrote to the social workers on DATE , expressing disappointment with that first contact .", "A second visit took place on DATE . According to the report of social services , PERSON on this occasion sought an explanation from his mother for her alleged failure to react to his allusions to the paedophile violence to which he had been subjected . He had left the room when the first applicant refused to accept his criticism . In their report , social services stressed the first applicant 's inability to listen to her son or to follow the recommendations of the specialists , while at the same time showing understanding of her painful situation and her desire to assert herself in her role as mother . According to a subsequent report ( see paragraph CARDINAL below ) , CARDINAL of the specialists present during the contact visit had suggested to the first applicant that she write a letter to her son but , according to the report , she had refused .", "However , having examined the audio recordings produced by the Government ( see paragraph CARDINAL above ) , the ORG has found nothing to support social services ' position . The arrangements for this visit appear to have been similar to those for the first in that , in particular , it was held on premises belonging to social services , again in the presence of CARDINAL specialists . The following points arising from the focal points of the visit have enabled the ORG to identify once more discrepancies between social services ' official report and what was heard on the recording . In particular :", "( i ) the report does not mention the fact that the first applicant asked the children whether they were happy to see her again or that they said that they were ;", "( ii ) the elder son did not raise the question of his mother 's role in the paedophile assaults on him on his own initiative , as the report seems to suggest , but was prompted to do so by CARDINAL of the CARDINAL specialists present ;", "( iii ) after the visit was over , one of the specialists told the first applicant that in reality her elder son had not wanted to see her again and that the new visit had only proved possible thanks to the efforts of the other specialist present ;", "( iv ) the experts said that whether there were to be further visits would depend on the elder son and that the first applicant would be able to see her younger son “ if possible ” , to which she had reacted by asking them what they meant by the latter expression , but the specialists had replied that the answer did not depend on them .", "On DATE the specialists from social services met the children at “ GPE ” in the presence of the foster parents , with a view to assessing the short - term prospects of contact with their mother continuing . According to the report of social services , the meeting ended “ with an agreement , at PERSON 's and PERSON 's request , to suspend contact with their mother for the time being ” . A further session of preparatory counselling was nevertheless arranged with the first applicant for DATE .", "On DATE a specialist from social services met the first applicant . At the meeting , the latter complained that the children 's DATE presents had been refused . She reiterated her attachment to the children and her willingness to explain matters to them if they agreed to meet her . Since then , no further visits have been organised or programmed . Furthermore , in their last report ( DATE ) , social services said , inter alia , that :", "As to the father , he has not visited the children at all , despite the fact that preparatory counselling sessions with social services were held at DATE . From a report by social services dated DATE , it would appear that the father was aware of the evolution of the situation between his former wife and the children , and in particular of the negative outcome of the visit on DATE . The first applicant maintains , however , that she was no longer in touch with him and that he spent his time travelling between GPE and GPE .", "On DATE the first applicant appealed against the decision of ORG of DATE . Her primary request was for reinstatement of her parental rights and an immediate renewal of contact with her children . She contended in particular that she had in the meantime separated from her former husband DATE whom the relevant judge had regarded as being responsible for violence against both her and the children DATE and now led a normal life and was working as a chiropodist .", "The first applicant also challenged the decision to keep the children at “ FAC and requested their placement elsewhere , arguing :", "( i ) that it was difficult for the parents of children staying in the community to gain access to them ;", "( ii ) L.R.F. and GPE remained the most important figures at “ FAC , despite their convictions ;", "( iii ) the foster parents at “ LOC ” were doing all they could to hinder a resumption of relations with the children .", "The second applicant also appealed .", "NORP On DATE the children 's guardian intervened in the proceedings before ORG , requesting the suspension of contact for DATE , inter alia , on the grounds that :", "( i ) the first applicant had largely exaggerated her professional qualifications ;", "( ii ) for DATE she had failed to notice what her elder son , PERSON , was going through , which demonstrated that she was incapable of assuming her role as mother ;", "( iii ) the grandmother had always lived in GPE and had not shown any real interest in the children . In addition , no one knew what she had been doing since moving to GPE . Furthermore , it was difficult to see how she could claim to be able to provide the children with a good upbringing when she had not succeeded in doing so for her daughter ( the first applicant ) , who , at best , was an inadequate , unsuitable and absent mother ;", "( iv ) the children 's father was a fugitive criminal after his escape from prison in GPE , where he had been serving a CARDINAL-year prison sentence for murder ;", "( v ) “ Il Forteto ” was a cooperative that was internationally famous for its production of milk and cheeses , but also an innovative home for the protection of children in distress that had been founded by CARDINAL families who had never abandoned it . While it was true that CARDINAL of its members had convictions ( although they were not , in any event , members of the family looking after the first applicant 's children ) , it was equally true that such prosecutions could be based on false evidence . Furthermore , over a DATE period , some QUANTITY children had been placed with the cooperative by courts from regions all over GPE and a number of those care orders had subsequently resulted in adoptions , thus confirming the validity of that option and the courts ' confidence in “ GPE ” .", "NORP The public prosecutor at ORG requested that the children be put into the care of their grandmother or , failing that , of another family .", "On DATE ORG upheld the decision of ORG . It emphasised , in particular , the positive evolution of the children 's situation and considered that the allegations concerning “ GPE ” were of a general nature , with the exception of the events of DATE , which in any event did not concern the children 's foster parents . Although the applicants had produced statements from highly qualified people contesting the methods employed at “ FAC , the fact that there were other statements from equally qualified people confirming its reputation could not be disregarded . The good conditions in which the children were living made it unnecessary to accede to the grandmother 's request as , though in theory it was preferable to put children in the care of a member of the family rather than in a community , the children had by that time been staying with the community for some while and the results had been positive . Moreover , the children did not know their grandmother very well and she did not appear to be independent of her daughter .", "The first applicant appealed to ORG . As to the placement of the children at “ LOC ” , she observed that even though the children were not in the immediate care of the CARDINAL leaders with convictions , it had been the latter who had brought the foster parents into the home and trained them ( ORG had even become the president of the cooperative ) . Moreover , GPE 's wife was actively involved in looking after the children , the elder son , PERSON , having admitted in his letter of CARDINAL March DATE that it had been she who had helped him to interpret his doubts about his mother .", "The ORG has not been informed of the outcome of the proceedings before ORG .", "On DATE the first applicant asked the guardianship judge to request that contact visits be arranged at more regular intervals than in the past and to permit a psychologist to interview the children in “ FAC and attend the counselling sessions prior to the visits . On DATE the guardianship judge agreed in particular to the requests relating to the presence of the psychologist at the preparatory sessions and at the visits with the children and to the production of the audio - visual recording of the meetings . The children 's guardian appealed .", "NORP In a decision of CARDINAL DATE , ORG allowed the guardian 's appeal and reversed the decision of the guardianship judge . On the basis of the information supplied by social services it found that the negative results of the CARDINAL visits should be attributed to a lack of cooperation on the first applicant 's part . Accordingly , the presence of another specialist during visits to facilitate a change in attitude by the first applicant did not appear necessary , as she was already receiving sufficient counselling from the institutional services appointed by the court . As regards the audio - visual recording of the visits , ORG considered that it would not be appropriate for the first applicant to view such material , as the purpose of recording the visits was to enable the relevant authorities to assess whether the visits had been a success and whether it was possible and appropriate for them to continue .", "The first applicant appealed against that decision . She argued , inter alia , that ORG had accepted social services ' conclusions regarding the negative results of the visits as they stood ; it had failed in its duty to supervise the implementation of its decisions critically and with the help of relevant objective evidence such as the audio - visual recordings which she had asked to be produced . In her submission , apart from the fact that she failed to see how a visit which she had been looking forward to for DATE could have been interpreted so negatively , her right to examine the recordings was all the more founded in that it would help her gain a better understanding of herself and to adapt her behaviour . It was , furthermore , absurd for ORG to refuse to examine the recordings itself or to allow the guardianship judge to do so . Lastly , the presence at the preparatory sessions and during contact visits of a specialist chosen by the applicant would help her to take part in her children 's family and psychological development , particularly as there was no statutory provision to prohibit a parent from seeking the additional help of private psychologists to prepare for re - establishing relations with his children .", "In a decision of CARDINAL DATE ORG authorised the showing of the audio - visual recordings to the first applicant , since they had already been produced to the ORG and consequently were of procedural , as well as clinical , value .", "The second applicant was invited on DATE to begin a programme preparing her for contact with her grandchildren . However , the notice of appointment was returned to the sender . Inquiries were made to establish whether the second applicant had changed address in the meantime . At the first applicant 's suggestion , a further notice was sent to the first applicant 's sister , but social services were informed that the second applicant was still unable to attend . They received the same reply for a session scheduled in DATE . The second applicant explained her absence by the fact that she had had to return to GPE as a matter of urgency as the invalidity benefit she received for her handicapped son had been cancelled because of her move to GPE . The first preparatory session with social services finally took place on DATE .", "According to the report prepared by social services , the second applicant complained at that session that she had not been given an appointment in DATE and said that she could not leave GPE for DATE at a time , as otherwise she risked losing the invalidity benefit she received there for her handicapped son . She said that she wished to see the children and wanted them to live with her . She justified her silence over a period of DATE by the fact that she did not know what stage the programme of visits between the children and her daughter had reached , as she no longer had any contact with the latter . It was also mentioned in the report that the second applicant had advised against the children being returned to their mother because the latter continued to see her former husband , as had been confirmed both by her daughter herself and by neighbours . The cause of all the problems was ORG 's violence and the first applicant 's inability to defend either herself or the children . She had concluded by saying that she was unhappy with the fact that the children had been sent to “ FAC .", "According to the most recent information received from the first applicant , the second applicant will be required to reimburse a substantial sum to ORG in respect of benefit received during the periods when she was staying in GPE , and in DATE she was admitted to hospital with heart problems .", "On DATE the guardian sent a letter to the public prosecutor written DATE by the elder child , in which the boy said that his mother had been aware of the paedophile abuse to which he had been subjected and that on CARDINAL occasion he had witnessed her receiving money from GPE", "The child confirmed his accusations on questioning by the public prosecutor on DATE . He was accompanied to the interview by PERSON PERSON and PERSON ( who was in fact Mr GPE 's wife ) , as foster parents .", "On DATE the public prosecutor questioned PERSON about the accusations made against the first applicant by the elder child . PERSON denied what the child had said and concluded :", "“ What I have said up to now is the simple truth . I would have no difficulty in confirming what PERSON has said if it were true ... I believe that PERSON has invented , at least in part , what he has said because of bitterness towards his parents . PERSON had a very poor relationship with his father , but adored his mother . Perhaps he later became rather bitter because he felt that she had not done enough to protect him . If I could confirm what he has said I would do so , to help him , too . ”", "On DATE the children were examined by a specialist in the presence of the investigating judge . The judicial authorities ' assessment of the results of the specialist examination is not yet known . During the examination , the elder child admitted having written the letter of DATE in the presence of , inter alia , NORP ( probably PERSON ) . He also said that he would be pleased to see his mother again .", "In addition , on an unspecified date and in circumstances that have not been clarified , the first applicant 's sister was heard by ORG . She stated that she was living with her mother and one of her brother 's at PERSON and that another brother , who had been involved in drug trafficking , had been killed . An elder brother who had not forgiven her for having intervened as a civil party in the criminal proceedings instituted following the death of the other brother had accused her of attempted murder . According to the record of her sister ' statements , the first applicant had also been charged .", "In a certificate of CARDINAL DATE , the neuropsychiatrist , ORG , noted that the younger child was fragile psychologically and advised the authorities to act with great caution .", "In addition :", "– a doctor 's certificate dated DATE described the elder child as being in “ excellent ” health ;", "– a certificate by another doctor dated DATE expressed the view that the younger child 's health had improved and was “ good ” .", "A certificate drawn up by a paediatrician on DATE stated that the children were in excellent health and that their development and growth appeared normal .", "In addition , the school report on the elder child for DATE and a report by the teachers stated that he was working hard and making constant progress .", "Social services said in a report of CARDINAL DATE that the children 's stay at “ PERSON ” had been very positive from both an emotional and a relational standpoint , had enabled them to recover a degree of equilibrium and made them more receptive to interpersonal relations .", "Lastly , in their last report ( DATE ) social services said that the younger child was now attending nursery school and his relations with the teachers were very good .", "Article CARDINAL of the NORP Civil Code provides :", "“ The court may declare parental rights forfeit if the parents do not perform or neglect the obligations inherent in their parental role or abuse the powers related thereto causing serious detriment to the child .", "In such eventuality , the court may , if there are serious grounds for so doing , order the child 's removal from the family home . ”", "Article CARDINAL of the Civil Code provides :", "“ Where the conduct of CARDINAL or both parents is not such as to give rise to their parental rights being declared forfeit under LAW , but is nonetheless detrimental to the child , the court may adopt any measure that is appropriate in the circumstances and may even order the child 's removal from the family home .", "These measures may be revoked at any time . ”", "Furthermore , Law no . CARDINAL of CARDINAL DATE on the fostering of minors and adoption , provides , inter alia , that a minor who has temporarily been deprived of a satisfactory family environment may be placed with another family , with a family - type community , or if it is not possible to provide him with a satisfactory family environment , in a children 's home ( section CARDINAL ) .", "Section CARDINAL of that law provides , inter alia , that among other matters that must be stipulated in an order placing the child with a family is its provisional duration ( paragraph CARDINAL ) . In addition , section CARDINAL provides that the family , home or community in whose care the child is placed must facilitate relations between the minor and his natural parents and his reintegration in his original family .", "Section CARDINAL imposes an obligation on children 's homes to send CARDINAL - monthly reports to the guardianship judge on the minor , his relations with the family of origin and his mental and physical welfare . The provision also requires the guardianship judge to report to the youth court on abandoned children in the home and to carry out CARDINAL - DATE inspections .", "Lastly , section CARDINAL provides , inter alia , that where investigations have revealed the existence of relatives or other family members up to the fourth degree who have maintained meaningful contact with the minor and whose whereabouts are known , the president of the court shall order their attendance at court ( paragraph CARDINAL ) . After hearing them , the president of the court may give them such instructions as shall be necessary to ensure that the minor receives emotional support , maintenance , an education and an upbringing ( paragraph CARDINAL ) .", "The first applicant , who purported also to be acting on behalf of her children , complained of infringements of LAW in that her parental rights had been suspended , her children had been taken into care , the authorities had delayed before finally allowing her to see the children , too few contact visits had been organised and the authorities had placed the children at “ FAC .", "The second applicant also alleged a violation of DATE , complaining that the authorities had discounted the possibility of her being given the care of her grandsons and delayed organising contact with them .", "DATE is worded as follows :", "“ CARDINAL . Everyone has the right to respect for his private and family life , his home and his correspondence .", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a NORP society in the interests of national security , public safety or the economic well - being of the country , for the prevention of disorder or crime , for the protection of health or morals , or for the protection of the rights and freedoms of others . ”", "The Government contested the applicants ' arguments .", "The Commission expressed the opinion that that there had been no violation on account of the suspension of parental rights or the children 's placement at “ GPE ” , and no violation of the second applicant 's rights . Conversely , it considered that there had been a violation of LAW as regards contact between the first applicant and her children .", "ORG contested , firstly , the first applicant 's standing also to act on behalf of her children , as her parental rights had been suspended on DATE , there was a conflict of interest between her and the children and criminal proceedings were pending against her for offences against her children . In addition , the ORG argued that the first applicant had never clearly stated that her application to the ORG was made on behalf of her children , too .", "The Government went on to contend that ORG had no standing to intervene , since their intervention was based solely on the fact that the elder child was a NORP national .", "The Commission rejected that objection , noting that it was clear from the first application that the first applicant 's children were also applicants and represented by the same lawyer in the proceedings before it . It added that there was nothing to prevent minors applying to the ORG . Indeed , there was all the more reason to allow them to do so where they were represented by a mother who had a conflict of interest with the guardian whom the public authorities had entrusted with the task of looking after the children 's interests in her stead .", "The ORG points out that in principle a person who is not entitled under domestic law to represent another may nevertheless , in certain circumstances , act before the ORG in the name of the other person ( see , mutatis mutandis , the ORG v. GPE judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , § § DATE ) . In particular , minors can apply to the ORG even , or indeed especially , if they are represented by a mother who is in conflict with the authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the LAW . Like the Commission , the ORG considers that in the event of a conflict over a minor 's interests between a natural parent and the person appointed by the authorities to act as the child 's guardian , there is a danger that some of those interests will never be brought to the ORG 's attention and that the minor will be deprived of effective protection of his rights under the Convention . Consequently , as the ORG observed , even though the mother has been deprived of parental rights DATE indeed that is one of the causes of the dispute which she has referred to the Court – her standing as the natural mother suffices to afford her the necessary power to apply to the ORG on the children 's behalf , too , in order to protect their interests .", "NORP Moreover , the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi . National rules in this respect may serve purposes different from those contemplated by LAW and , whilst those purposes may sometimes be analogous , they need not always be so ( see the PERSON v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) .", "Therefore , since the first applicant also has standing to act on behalf of the children , ORG are entitled to take part in the proceedings within the meaning of Article CARDINAL § CARDINAL of LAW , as the elder child also has NORP nationality .", "The ORG accordingly concludes that the ORG 's preliminary objection must be dismissed , both as regards the locus standi of the first applicant 's children and the standing of ORG to intervene in the proceedings .", "It was common ground that the impugned interference was in accordance with the law for the purposes of LAW , the relevant provisions being , in particular , Articles CARDINAL and CARDINAL of LAW ( see paragraphs CARDINAL above ) and section CARDINAL of Law no . CARDINAL of DATE ( see paragraph CARDINAL above ) . It is true that the applicants alleged a failure to apply certain provisions of the latter statute , notably those concerning the provisional length of the placement ( section CARDINAL(CARDINAL ) ) , the duty of directors of care institutions to facilitate links with the family of origin ( section CARDINAL ) , and the refusal to give consideration to putting the children in the care of their maternal grandmother ( section CARDINAL(CARDINAL ) ) . However , those matters concern the manner in which the relevant domestic provisions were applied , not the legal basis for the impugned interference as such . They therefore relate to the issue whether the relevant provisions were applied in accordance with the Convention principles .", "Furthermore , the parties also agreed that the impugned measures pursued a legitimate aim within the meaning of Article CARDINAL , namely “ the protection of health or morals ” and “ the protection of the rights and freedoms of others ” , as they were intended to protect the welfare of the first applicant 's children .", "The first applicant contested the authorities ' decision and stressed , inter alia , her determination to break free of the family background that had been damaged by her former husband 's violence . That determination was shown notably by the fact that she had lodged a complaint against her former husband and separated from him .", "ORG considered that the suspension of parental rights appeared justified in view of the limited capacities of the first applicant and her former husband to bring up the children .", "The respondent Government emphasised above all the gravity of the domestic circumstances of the first applicant , which had been marked by the sexual abuse which one of her friends had inflicted on the elder child for DATE and the repeated violence that characterised the relations between the members of the family . The Government also referred to the first applicant 's complex personality and concluded that the measure in issue had been justified by the children 's interests .", "The Commission considered that since the children had been confronted over a very considerable period by situations that were undoubtedly harmful to their development , the interference by the authorities through the children 's removal was justified in order to protect their interests .", "The ORG reiterates that “ ... it is an interference of a very serious order to split up a family . Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child ... ” ( see the PERSON v. GPE ( no . CARDINAL ) judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , § DATE ) . Therefore , “ ... regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole , and in both contexts the ORG ... enjoy[s ] a certain margin of appreciation ... ” ( see the ORG v. GPE judgment of DATE , Series A CARDINAL , p. CARDINAL , § DATE ) . In this sphere , “ ... the ORG [ 's ] ... review is not limited to ascertaining whether a respondent ORG exercised its discretion reasonably , carefully and in good faith ... In the second place , in exercising its supervisory jurisdiction , the ORG can not confine itself to considering the impugned decisions in isolation , but must look at them in the light of the case as a whole ; it must determine whether the reasons adduced to justify the interferences at issue are ' relevant and sufficient ... ' ” ( see the PERSON ( no . CARDINAL ) judgment cited above , p. CARDINAL , § DATE , and , mutatis mutandis , the GPE v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL , pp . CARDINAL , § CARDINAL ) .", "The ORG notes that the first applicant 's domestic circumstances seriously deteriorated in DATE ( see paragraph CARDINAL above ) . It is particularly struck by the negative role played by her former husband . The case file shows that it was he who was largely responsible for the violent atmosphere within the family through his repeated assaults on the children and his former wife , which led the first applicant to lodge a criminal complaint ( see paragraph CARDINAL above ) .", "NORP However , it must be noted , too , that even after separating from her former husband , the first applicant found it difficult to look after her children . In that connection , the ORG attaches weight to the report of DATE by the neuropsychiatrist employed by the local health authority ( see paragraph CARDINAL above ) , in which she expressed the view that the first applicant was suffering from a personality disorder and was incapable of managing the complex situation of her family and children . The problem is compounded by the severe trauma suffered by the elder child as a result of the paedophile abuse of him by a social worker who succeeded in ingratiating himself with the first applicant 's family .", "NORP Under those circumstances , the ORG agrees with the ORG on this point and considers that against that background the authorities ' intervention , through the suspension of the first applicant 's parental rights and the temporary removal of the children from their mother 's care , was based on relevant and sufficient reasons and was justified by the need to protect the children 's interests . Consequently , there has been no violation of LAW on that account .", "NORP The first applicant observed , firstly , that she could not understand why she had been prevented from seeing her elder son since the decision of DATE .", "As to the accusations that had been made against her in DATE , she submitted that it was absurd to have interrupted a relationship as sensitive as that between mother and son because , if at the end of the proceedings she was found innocent , she would have suffered irreversible harm . In that connection , she complained that the authorities had used double standards : ORG had cited the accusations against her ( even though they had not resulted in her being committed for trial ) as the reason for separating her from her children for a lengthy period , whereas it had continued to place children at “ GPE ” , despite the final convictions of CARDINAL leaders of that community for serious offences against children in their care .", "The first applicant also alleged that social services in fact had a very negative view of her that was in the process of strongly influencing her elder son to the point where he had shown a hostility towards her that had not previously been present .", "ORG submitted , as its principal contention , that when in DATE ORG had ordered the implementation of a preparatory programme for contact with PERSON , the issue whether the suspension of contact with PERSON should continue had not been raised , even though the psychiatric report that had been ordered by ORG on DATE had concerned both children .", "As to the suspension of the contact with the younger son that had already been scheduled for DATE ORG observed that while it was defensible in principle , in practice it had to be noted that :", "– the allegations that had culminated in the child being questioned had been known to the authorities for DATE ( since DATE ) ;", "– the matters revealed implicated only the child 's father and there was only a possibility that the investigation would also encompass the first applicant , as the public prosecutor had indicated in his notes of CARDINAL and DATE ;", "– M. was not questioned until DATE , that is to say DATE .", "In fact , PERSON was not questioned until ORG had delivered its decision of DATE in which it ordered the implementation of a new preparatory procedure for the resumption of contact between the CARDINAL children and their mother . The fact that ORG had ordered a resumption of contact even before PERSON had been questioned in connection with the criminal proceedings considerably undermined its reasoning in the decision of DATE , while the harmful consequences of that decision for PERSON , resulting from the abrupt halt to the preparatory sessions , could not be disregarded .", "Even after the decision of CARDINAL DATE , the visits had begun late ( on DATE ) after DATE separation . In ORG submission , the prevention of any contact over such a lengthy period constituted an extremely serious interference in the first applicant 's family life , especially when the tender age of the younger son was taken into account . Accordingly , the inconsistencies in the authorities ' decisions could not be regarded as compatible with the requirements of LAW .", "The respondent Government observed , firstly , that it was not until DATE , that is to say DATE after ORG decision to place the children at “ GPE ” , that the first applicant had complained for the first time that , contrary to ORG decision , she had not been given an opportunity to see her younger son .", "The respondent Government went on to emphasise the ambivalent attitude of the first applicant . In order to have a better understanding of her personality , the Government suggested that it might be helpful to recall that during the course of the proceedings she had described herself on a number of occasions as a psychologist , a nurse and a gynaecologist . It was also appropriate to refer to the proceedings currently pending before ORG concerning acts that she was presumed to have committed against her elder son ( there being serious evidence of complicity on her part ) , to the attempted suicide of the daughter born of the first applicant 's first marriage as a result of the domestic violence of which she had been victim , and to the statements of the first applicant 's sister to ORG .", "The Government also argued that there was a need for preparatory counselling before contact visits , and that such counselling should be provided at brief intervals so as to avoid a preferential relationship developing between the mother and PERSON , the younger son , as that would create serious tension in the relationship between the CARDINAL brothers , a relationship which social services considered important to maintain . Furthermore , owing to the complexity of the programme and the desirability of verifying the effective needs of those concerned , it had been necessary to devote time to it .", "The Government also referred to the difficulties social services had encountered as a result of the first applicant 's aggressive and threatening behaviour , particularly towards her elder son , which the ORG maintained was almost certainly linked to his statements in the criminal proceedings .", "NORP The postponement of the visit scheduled for DATE had been fully justified by the requirements of the criminal investigation , since the children would have to be questioned and the first applicant 's attitude towards her elder son had been threatening .", "The respondent Government also pointed to the commitment of the services involved in guiding the children through an innovative programme aimed at the children 's psychological and emotional recovery and at giving them a better understanding of their parents ' role . In the light of that aim , the Government considered it desirable for the first applicant to cooperate with social services and to stop adopting a threatening stance against her elder son at meetings ( the Government also referred to the first applicant 's refusal to heed the advice of the social workers at the end of the meeting on DATE to write to her elder son ) .", "Contact visits would in any event resume in accordance with the decisions of the specialists dealing with the case .", "The Commission said that it was conscious of the particularly serious nature of the situation of the first applicant 's children and did not question the need to take precautions owing to the suffering and trauma to which the children had been exposed both generally and during the visits from their mother .", "It considered , however , that the total severance of relations that occurred just as it was adopting its report was unjustified . In its view , there were no exceptional circumstances capable of justifying a total severance of contact in the instant case . Indeed , the authorities themselves had envisaged a resumption of contact , at least with the younger son . In addition , total severance appeared still more unjustified in the present case in view of the first applicant 's concerns over the community chosen for the placement , which concerns were understandable when , inter alia , the criminal antecedents of certain leaders of “ FAC were taken into account .", "As regards the suspension of visits that had already been scheduled with the younger son , the Commission expressed the opinion that the reason relied on by the authorities DATE namely the fact that an investigation had been started concerning the children 's father – appeared weak , since the prosecution had not referred to any concrete evidence against the first applicant and had confined itself to alluding to a possible extension of the investigation to the mother .", "The ORG reiterates , firstly : “ the mutual enjoyment by parent and child of each other 's company constitutes a fundamental element of family life ; furthermore , the natural family relationship is not terminated by reason of the fact that the child has been taken into public care ... ” ( see the PERSON v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § MONEY ) . As the ORG has previously observed , “ ... taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and ... any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child ... In this regard , a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child ... In carrying out this balancing exercise , the ORG will attach particular importance to the best interests of the child , which , depending on their nature and seriousness , may override those of the parent . In particular , ... the parent can not be entitled under LAW to have such measures taken as would harm the child 's health and development . ( see the PERSON v. GPE judgment of DATE , Reports of Judgments and Decisions PERSON , pp . CARDINAL - CARDINAL , § CARDINAL ) .", "The ORG considers , firstly , that the decision of DATE to prohibit any contact between the first applicant and her elder son does not appear to have been based on sufficiently valid reasons . It is true that the child had gone through a very difficult and traumatic experience . However , as the Commission pointed out in its report , a measure as radical as the total severance of contact can be justified only in exceptional circumstances ( see the PERSON v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , pp . CARDINAL - CARDINAL , § CARDINAL ) . While the complex circumstances that were harmful to the family life and the development of the children fully justified their being temporarily taken into care ( and without underestimating the importance of appropriate psychological support for the mother ) , the grave situation within the first applicant 's family did not , in the ORG 's view , justify by itself contact with the elder child being severed , regard being had not only to the attachment which the first applicant has always shown to her children , but also and above all to the authorities ' decision to allow at the same time a resumption of contact with the younger child . Given that the authorities did not wish to deprive the first applicant of all parental rights permanently , the decision to exclude PERSON from all contact with his mother entails a partial breakdown in relations , including relations between the brothers , and does not tally with the declared aim of bringing about a resumption of relations with the mother .", "The ORG further notes that although the decision of DATE provided for the organisation of visits with the younger son , nothing further was done until DATE , when ORG finally decided to require visits to be preceded by a preparatory programme for the mother . However , nothing came of that as , DATE before the first visit was due to take place on DATE and at the request of the deputy public prosecutor , who had just started an investigation concerning the children 's father ( see paragraph CARDINAL above ) , ORG decided to suspend the visits that had already been scheduled . As regards that decision , the ORG agrees with the ORG 's opinion . It is difficult to identify the basis for ORG reaching such a harsh decision , with its very negative psychological impact on those concerned , since the public prosecutor 's application had been based on the mere possibility , unsupported by any objective evidence , that the scope of the investigation might be enlarged to include the mother . While it is true that the child had for the first time accused his mother in a letter sent to the public prosecutor on DATE ( see paragraph CARDINAL above ) of being implicated in the paedophile assaults on him , no serious attempt was made to verify the truth of that allegation , ( and none was made until DATE when the paedophile concerned was questioned and said that the allegation was untrue – see paragraph CARDINAL above ) . The ORG has to conclude that both the deputy public prosecutor and ORG acted irresponsibly .", "Indeed , DATE , on DATE , ORG gave the first applicant permission to see both children , even though officially the investigation was still pending . That appears to have been in flat contradiction to the decisions taken in DATE .", "NORP However , once again , despite an order of ORG for the resumption of visits by DATE , the first visit did not take place until DATE . Indeed , the delay was remarked on by ORG itself in its note of DATE . To the extent that the delay was attributable to administrative difficulties ( see paragraphs CARDINAL above ) , it should not be forgotten that “ in so fundamental an area as respect for family life , such considerations can not be allowed to play more than a secondary role ” ( see the PERSON ( no . CARDINAL ) judgment cited above , p. CARDINAL , § DATE ) . Such a delay was even more unacceptable in the instant case as , by that time , the first applicant and her children had already been separated for DATE .", "What is more , the first visit did not prove to be the beginning of regular and frequent contact to assist the children and their mother in rebuilding their relationship . It is true that the elder son expressed disappointment over the first meeting in his letter of CARDINAL DATE to the social workers ( see paragraph CARDINAL above ) . However , leaving aside the fact that letters sent by the elder child to the various authorities involved in the case must be treated with caution given the special situation in which the child found himself ( as the ORG will remark upon below – see paragraph CARDINAL below ) , a sense of disappointment is perfectly understandable after such a long separation following events that were traumatic for the child . On the contrary , that situation should have incited social services to organise visits at regular intervals to help the children get through such a difficult period . Continued separation can certainly not be expected to help re - cement family bonds that have already been put under considerable strain . It should be recalled in this connection that “ ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other ” ( see the PERSON ( no . CARDINAL ) judgment cited above , pp . DATE , § CARDINAL ) .", "The ORG wishes to emphasise that it does not underestimate the importance of preparatory counselling . Indeed , it has previously said : “ ... the reunion of natural parents with children who have lived for some time in a foster family needs preparation . The nature and extent of such preparation may depend on the circumstances of each case , but it always requires the active and understanding cooperation of all concerned . Whilst national authorities must do their utmost to bring about such cooperation , their possibilities of applying coercion in this respect are limited since the interests as well as the rights and freedoms of all concerned must be taken into account , notably the children 's interests and their rights under LAW . Where contacts with the natural parents would harm those interests or interfere with those rights , it is for the national authorities to strike a fair balance ... ” ( see the PERSON v. GPE ( no . CARDINAL ) judgment of CARDINAL DATE , Series A no . CARDINAL , pp . CARDINAL , § CARDINAL ) . In the instant case , however , it has to be observed that a single visit could not suffice to give the children an opportunity to re - establish bonds with their mother . Having regard to the fact that the first visit was preceded by a preparatory phase that had already contributed to delays , the ORG fails to understand why it was not rapidly followed by further visits . It also considers that the Government have furnished no satisfactory explanation to justify the subsequent preparatory phase lasting a further DATE and , a fortiori , the absence of any further visit after CARDINAL September CARDINAL .", "Having carefully examined the video recordings of the first visit ( see paragraph CARDINAL above ) , the ORG found both the visit itself and its outcome to be far less negative than the report of social services suggests . Social services were nonetheless given complete freedom to defer the second visit for fully DATE . Moreover , the audio recordings of the second visit ( see paragraph CARDINAL above ) attest to the considerable latitude given to social services to decide whether and when further meetings should take place .", "NORP On that subject , it should be borne in mind that there is a significant danger that a prolonged interruption of contact between parent and child or too great a gap between visits will undermine any real possibility of their being helped to surmount the difficulties that have arisen within the family and of the members of the family being reunited . ( The danger is even greater for the younger child , who was very young when the separation occurred . )", "Therefore , in the circumstances of the present case , the ORG finds it unacceptable that social services should be able , as they have been in this instance , to alter the practical effect of judicial decisions establishing that contact will , in principle , take place . Given their limited number and irregular occurrence ( there have been CARDINAL in DATE ) , the visits arranged to date have for all intents and purposes been sporadic and make little sense when viewed in the light of the principles established under LAW .", "It is apparent from the case file that since the first visit social services have played an inordinate role in the implementation of ORG decisions and adopted a negative attitude towards the first applicant , an attitude for which the ORG finds no convincing objective basis . In reality , the manner in which social services have dealt with the situation up till now has helped to accentuate the rift between the first applicant and the children , creating a risk that it will become permanent . The information contained in social services ' latest report only goes to confirm that trend ( see paragraph CARDINAL above ) . Faced with that evolution in the situation , ORG , which should in principle supervise the implementation of its decisions , approved the action being taken by social services , without conducting any thorough review .", "The fact that there had been CARDINAL visits ( after DATE separation ) since its decision of CARDINAL DATE should have incited ORG to investigate the reasons for the delays in the programme , yet it merely accepted the negative conclusions of social services , without conducting any critical analysis of the facts . When confronted with the first applicant 's complaints regarding the assessment of the outcome of the visits , ORG deemed it unnecessary to examine the audio - visual recordings of the visits ( permission for them to be produced was given after substantial delay and only after they had been produced to ORG see paragraph CARDINAL above ) , and despite the favourable opinion of the guardianship judge did not even authorise the presence during visits and preparatory sessions of an independent specialist designated by the first applicant ( see paragraphs CARDINAL - CARDINAL above ) . Not only does there appear to have been no relevant basis for such refusals , they also deprived ORG of a means of reviewing the action taken by social services .", "Article CARDINAL demands that decisions of courts aimed in principle at facilitating visits between parents and their children so that they can re - establish relations with a view to reunification of the family be implemented in an effective and coherent manner . No logical purpose would be served in deciding that visits may take place if the manner in which the decision is implemented means that de facto the child is irreversibly separated from its natural parent . Accordingly , the relevant authorities , in this case ORG , have a duty to exercise constant vigilance , particularly as regards action taken by social services , to ensure the latter 's conduct does not defeat the authorities ' decisions .", "Lastly , having regard to the material in the case file , the ORG can not attach any weight to the uncorroborated statements of the first applicant 's sister ( see paragraph CARDINAL above ) . The respondent Government can not therefore explain away the authorities ' and social services ' conduct , as they apparently seek to do , by such vague information , especially as neither the decisions of the former nor the reports of the latter make any reference to it . The ORG further observes that the case file contains conflicting evidence as to the current relations between the first applicant and the former husband ( see paragraphs CARDINAL and CARDINAL above ) . However , there is nothing in the case file to shows that the uncertainty about the current relations between the first applicant and her former husband justifies the conclusion that the first applicant is incapable of re - establishing bonds with her children . It will be noted , too , that none of the authorities ' decisions contains sufficient information in that regard .", "NORP In conclusion , the ORG considers that the authorities failed to strike a fair balance between the interests of the first applicant 's children and her rights under LAW . Consequently , there has been a violation of LAW .", "The first applicant submitted that the philosophy of “ FAC , based on the rejection of the natural family , has not evolved since DATE . The aim of “ PERSON ” would always be to separate children from their natural families , as PERSON 's letters confirmed .", "It was apparent from the case file that in practice the children were throughout their placement looked after , accompanied and supervised by ORG and GPE , as was shown , for example , by the tenor of GPE 's letter of DATE to the public prosecutor . A letter of that nature should have been sent by the president of the community or the foster parents , not a community member who , according to the ORG , had only a minor role in the children 's upbringing .", "The first applicant further maintained that there were no real foster parents and that the children were in fact looked after by people other than those to whom ORG had entrusted their care . It was significant , too , that PERSON never mentioned PERSON in his letters .", "As to the supervision which the authorities were meant to exercise over “ GPE ” , the first applicant contended that in practice the relevant authorities did not compile their reports on the dates indicated by the Government . Thus , the first report by social services had been compiled in DATE , the second in DATE and the third only in DATE . Moreover , the DATE inspections required by LAW no . CARDINAL of DATE had not taken place .", "Lastly , the first applicant said that “ FAC appeared to have been given considerable latitude in deciding on the arrangements for children in its care and to enjoy substantial support from social services . That fact , coupled with delays in implementing the authorities ' decisions , compromised the effective application of those decisions .", "ORG noted firstly that the CARDINAL leaders of “ GPE ” who had been convicted in DATE had not undergone rehabilitation and that at the time of the criminal proceedings the NORP authorities continued to entrust minors into their care . It added that contrary to the allegations of ORG , it was apparent from the case file that the CARDINAL leaders had played an active role in the proceedings concerning the first applicant 's children .", "While not endorsing the applicants ' hasty conclusions that ORG and GPE continued to commit offences against children , ORG considered that care orders constituted such a serious interference in the family domain that their implementation had to be organised within a structure that was above all suspicion . As with LAW , appearances were therefore relevant . Consequently , institutions fostering minors in difficulty had to provide every guarantee that they were reliable and competent . The presence within the structure of people with criminal convictions – albeit from DATE seriously undermined the confidence which such institutions should inspire .", "ORG also observed that “ Il Forteto ” carried on a commercial activity for profit , which was hardly consistent with the objectives of providing welfare assistance to minors . The participation of its members on consultative boards that provided the courts with opinions on whether care orders should be made seemed hardly appropriate .", "Lastly , the methods used in “ GPE ” appeared to be aimed at severing relations between the children and the natural family . That did not seem consistent with the spirit of fostering within the family implicit in DATE .", "The respondent Government recognised that the relevant authorities had probably been aware of ORG 's and GPE 's convictions when they decided to place the children at “ LOC ” . However , the Government emphasised that , so far as public opinion in GPE was concerned , the charges against the CARDINAL people concerned were perceived as being part of a battle between supporters and opponents of “ FAC . Furthermore , at the end of a laborious trial in which ORG had intervened twice , the CARDINAL men had been acquitted on QUANTITY of the CARDINAL counts . As regards the offences of which ORG and GPE were convicted , the Government said that a committee was being constituted to gather evidence with a view to requesting a review . Neither of them had committed any further criminal offences since their conviction in DATE .", "NORP Moreover , “ GPE ” enjoyed the confidence of many local and regional institutions and had been the subject matter of a number of studies . The Government cited in particular an article that had been published in PERSON , one of GPE 's most famous publishing houses , based on research conducted on - site by psychologists , doctors , sociologists and neuropsychiatrists specialising in children . Moreover , the positive results obtained with children placed at “ FAC had also prompted studies by institutions from other countries . Even the ORG had , in its judgment of DATE , attached importance to the evidence of numerous witnesses attesting to the positive results obtained at “ FAC . The relevant judge at ORG had not noted anything negative about the community or its members . “ GPE ” was also under the supervision of ORG , which had not noted any problems on its last inspection . Inspections were also carried out by the region and the province . In any event , minors at “ GPE ” were closely supervised by the relevant social services departments and ORG was kept informed at all times .", "Against that background , convictions dating back DATE lost some of their significance .", "Furthermore , neither L.R.F. nor GPE had played any role in the programmes for the rehabilitation of minors in the care of the community as , on the contrary , that task was the responsibility of the numerous social workers and specialised teams who worked under the supervision of ORG . Mr PERSON and PERSON looked after the children and , with the agreement of social services , received help from PERSON , Mr GPE 's wife , and Mr S. with the children 's school activities ( they attended a State school in the locality ) and the various sessions preparing them for contact with their mother and grandmother .", "As regards the letters written by the elder child , the ORG considered that no significance attached to the fact that CARDINAL of them had been written in the presence of the foster parents and PERSON , since the child 's needs had changed and he often criticised his parents , particularly his mother , for failing to help him after they had been informed of the sexual abuse inflicted on him by a family friend . As to the letter of DATE , the ORG , relying in the opinion of psychologists on this point , submitted that the elder child 's signature , with the addition of the surname of CARDINAL of his foster parents , attested to a positive attitude by him towards the persons looking after him .", "It had to be stressed also that a number of items of evidence on the case file indicated that the children 's psychological condition was constantly and markedly improving .", "The Government concluded by saying that the placement of the first applicant 's children at “ FAC had been viewed positively by all the relevant services , which enjoyed the confidence of ORG . In any event , there was no reason for modifying such a complex and difficult programme , particularly bearing in mind the first applicant 's lack of cooperation .", "The Commission expressed the view that the fact that the CARDINAL members of the community concerned continued to hold important posts within “ FAC was a cause for concern . It observed , however , that the first applicant 's children had not been placed in the care of the community leaders concerned , added to which it was true that the offences for which they had been convicted dated back DATE and there was nothing on the case file to allow of the conclusion that the persons concerned had committed other acts of the same type subsequently or , above all , that they had direct control over the children or a decisive influence over the foster parents . ORG also considered that the improvement in the children 's health meant that the risk that the authorities ' choice of “ GPE ” should prove to be manifestly contrary to the children 's interests could be discounted .", "The ORG considers it appropriate first to restate certain principles established in its earlier decisions which may help to put the difficult issues to which this part of the application gives rise into context . In particular , in the PERSON v. GPE judgment cited above , the ORG said ( pp . DATE , § CARDINAL ) :", "“ ... the ORG will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from CARDINAL ORG to another , depending on such factors as traditions relating to the role of the family and to ORG intervention in family affairs and the availability of resources for public measures in this particular area . However , consideration of what is in the best interest of the child is in any event of crucial importance . Moreover , it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned ... , often at the very stage when care measures are being envisaged or immediately after their implementation . It follows from these considerations that the ORG 's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care , but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation ...", "The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake ... Thus , the ORG recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care . However , a stricter scrutiny is called for both of any further limitations , such as restrictions placed by those authorities on parental rights and access , and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life . Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed . ”", "The ORG notes that CARDINAL of the principal leaders and co - founders of “ GPE ” were convicted in DATE by ORG of the ill - treatment and sexual abuse of CARDINAL handicapped people staying in the community . They were given an amnesty in respect of an alleged offence of fraudulently holding themselves out as psychologists with diplomas from the universities of GPE and GPE ( see paragraphs CARDINAL and CARDINAL above ) . Those convictions are an established fact , since there is a full copy of ORG judgment , which was upheld by ORG , in the case file . Accordingly , the ORG can not attach any weight to the ORG 's argument that a committee is being constituted to gather evidence ( of which no details are supplied ) with a view to seeking a retrial . Nor does the ORG find the ORG 's reference to public opinion in GPE at the time of the trial of relevance ( see paragraph CARDINAL above ) .", "The ORG is not called upon to express an opinion on “ GPE ” as such or on the general quality of care which that community offers to children placed there . Nor is it for the ORG to say whether or not the confidence which a number of institutions have in “ GPE ” is justified . Furthermore , although the judgment of ORG in DATE discloses information about the atmosphere and practices in “ LOC ” at DATE , that information refers to the situation in the community DATE and the ORG has no information enabling it to express a view on the situation at “ GPE ” DATE . In any event , it is not for the ORG to become involved in the debate between the supporters and opponents of “ GPE ” .", "NORP However , the fact that the CARDINAL members of the community convicted in DATE continue to hold positions of responsibility within the community can not be regarded as innocuous and for practical purposes means that a detailed examination of the concrete situation of the first applicant 's children is called for .", "The ORG notes that , contrary to the assertions of the respondent Government , the evidence on the case file shows that the CARDINAL leaders concerned play a very active role in respect of the first applicant 's children .", "– L.R.F. attended the meeting of DATE , which ended with social services recommending to ORG that the first applicant 's children be placed at “ FAC ( see paragraph CARDINAL above ) .", "– At the interview on DATE , the elder child was accompanied by , inter alia , PERSON , who , as the Government recognised ( see CARDINAL and CARDINAL above ) , is in fact GPE 's wife ( see paragraph CARDINAL above ) .", "– It was GPE who signed the letter sent to the public prosecutor and ORG on DATE relating the incidents allegedly caused by the first applicant and her former husband when they attempted to see the children at “ FAC ( see paragraph CARDINAL above ) .", "– On DATE wrote a detailed letter on behalf of “ GPE ” regarding the first applicant 's children and recommending that the younger child 's scheduled visits should be postponed ( see paragraph CARDINAL above ) .", "The ORG considers that those facts clearly attest to the active role played by those CARDINAL members of the community in the care of the first applicant 's children . It has strong reservations about the fact that , under arrangements made by the public authorities for taking children into care , CARDINAL people who were convicted – albeit DATE – of the ill - treatment and abuse of persons entrusted into their care at the time can play such an active role within the same community .", "The ORG 's reservations are reinforced by the fact that , as the Government acknowledged ( see paragraph CARDINAL above ) , ORG was aware of the convictions of the CARDINAL members of the community concerned when it took the decisions regarding the first applicant 's children . Those reservations remain even though neither L.R.F. nor GPE have committed any further offences since DATE and there is nothing in the case file to indicate that they or other members of the community or persons staying there have abused or ill - treated the first applicant 's children or other children staying at “ FAC . A further contributory factor is the sexual abuse to which the elder child was subjected in DATE see paragraphs CARDINAL above ) . The combination of those CARDINAL factors ( the past sexual abuse against the elder child and the criminal antecedents of L.R.F. and GPE ) , fully account for the first applicant 's concerns about her children 's placement at “ FAC and make them understandable from an objective standpoint , especially bearing in mind her position as a mother separated from her children .", "It should also be noted that the authorities have at no point explained to the first applicant why , despite the men 's convictions , sending the children to “ FAC did not pose a problem . In the ORG 's view , such a failure to communicate is not compatible with the duties incumbent on GPE to act fairly and to provide information when taking serious measures interfering in a sphere as delicate and sensitive as family life . Unless full and pertinent explanations are given by the authorities concerned , parents should not be forced , as they were in the instant case , merely to stand by while their children are entrusted into the care of a community whose leaders include people with serious previous convictions for ill - treatment and sexual abuse . The situation was compounded by the following CARDINAL sets of circumstances .", "Firstly , some of the leaders of “ GPE ” , including CARDINAL of the CARDINAL men convicted in DATE , appear to have contributed substantially to delaying or hindering the implementation of the decisions of ORG to allow contact between the first applicant and her children . Thus , it can be seen from the case file that after the decision of DATE allowing the first applicant to see her younger son and before ORG definitively decided on DATE to make the resumption of contact with PERSON conditional on attending a preparatory programme , the leaders of “ GPE ” , in disregard of the operative provisions of ORG decision , seem to have prevented the first applicant from seeing either child , but especially the younger son . Such conduct is , in the ORG 's view , unacceptable . In addition , it would appear that the letter sent by ORG to the deputy public prosecutor on DATE recommending that contact be deferred and the deputy public prosecutor 's letter to ORG DATE implicitly suggesting that the scheduled visits ( which the public prosecutor said he was aware of ) should be postponed ( see paragraphs CARDINAL and CARDINAL above ) were not wholly unconnected .", "Secondly , the evidence points to the first applicant 's children having been subjected to the mounting influence of the leaders at “ FAC , including , once again , CARDINAL of the CARDINAL men convicted in DATE . That influence was exerted with the aim of distancing the boys , particularly the elder boy , from their mother . Thus , the ORG notes in particular that the latter acknowledged to a specialist on DATE that the letter sent to the public prosecutor 's office had been written in the presence , inter alia , of a person with the same first name as ORG can not express any view as to the genuineness of the assertions made in the elder child 's letters . However , the presence of adults , including , in all likelihood , ORG , when a DATE child is writing letters to the president of a court or a public prosecutor can not objectively be regarded as of no importance . Indeed , the ORG finds the changes in attitude , particularly of the elder child towards his mother , worrying ( an example of such a change can be seen in the letter of DATE – see paragraph CARDINAL DATE which was sent DATE after he had told a specialist on DATE see paragraph CARDINAL above – that he would be pleased to see his mother again ) .", "In the ORG 's view , the facts show that the leaders of “ LOC ” responsible for looking after the first applicant 's children helped to deflect the implementation of ORG decisions from their intended purpose of allowing visits to take place . Moreover , it is not known who really has effective care of the children at “ GPE ” , as the various people who accompany the children outside its confines do not appear merely to be assisting the foster parents as the ORG asserted ( see paragraph CARDINAL above ) , since they are identified on a number of records as the foster parents ( see paragraphs CARDINAL , DATE above ) . That doubt is confirmed by the evidence , which the Government did not contest , given by the CARDINAL officially assigned experts ( see paragraph CARDINAL above ) .", "That situation and the relevant leaders ' criminal antecedents should have prompted ORG to increase its level of supervision regarding the way in which the children were being looked after at “ GPE ” and the influence of the leaders concerned over the children and their relations with their mother . However , that did not occur . In practice , the leaders concerned work in a community which enjoys very substantial latitude and does not appear to be subject to effective supervision by the relevant authorities . In that connection , the ORG also notes that the respondent Government failed to produce sufficient evidence to show that the CARDINAL - DATE inspections by the guardianship judge , required by section CARDINAL of Law no . CARDINAL of DATE , did in fact take place . Indeed , the respondent Government have not produced any reports by the guardianship judge relating to such inspections .", "Furthermore , the negative impact on the prospects of rebuilding a relationship with the mother of the attitude and conduct of the people responsible for the children at “ GPE ” , including the CARDINAL leaders convicted in DATE , combines with the social services ' negative attitude referred to above , and is partly responsible for depriving the first applicant of any serious prospect of DATE being reunited with her children .", "As regards the absence of any time - limit on the children 's stay at “ GPE ” , experience shows that when children remain in the care of a community for a protracted period , many of them never return to a real family life outside the community . Accordingly , the ORG sees no valid justification for the failure to put a time - limit on the care order concerning the first applicant 's children , especially as that failure appears to contravene the relevant provisions of NORP law , namely CARDINAL of PERSON no . CARDINAL of DATE .", "NORP The fact of the matter is that the absence of any time - limit on the care order , the negative influence of the people responsible for the children at “ GPE ” , coupled with the attitude and conduct of social services , are in the process of driving the first applicant 's children towards an irreversible separation from their mother and long - term integration within “ FAC . While a number of factors point to there having been a considerable improvement in the children 's psychological and physical condition since the placement ( see paragraphs CARDINAL above ) , that process , which , it will be remarked , undermines both the role of the courts dealing with the case and of their decisions , presents a real danger that the relations between the first applicant and her children will be severed .", "Consequently , the ORG considers that the authorities have failed to show the degree of prudence and vigilance required in such a delicate and sensitive situation , and have done so to the detriment not just of the first applicant 's rights but also of the superior interests of the children . Accordingly , in the circumstances described above , the uninterrupted placement to date of the children at “ FAC does not satisfy the requirements of LAW .", "The second applicant alleged , firstly , that LAW no . CARDINAL of DATE , which accords priority to children being fostered with close relatives of known address , had been infringed since the possibility of the children living with her had been disregarded . In that connection , she said that PERSON had lived with her until DATE and they enjoyed an excellent relationship .", "NORP She added that in order to comply with ORG recommendations she had moved to GPE where she lived in her own flat , not with her daughter . Despite that fact , the authorities continued to refuse to show any confidence in her , as they considered that she was not independent of her daughter .", "ORG , which did not deny that the relationship between the second applicant and her grandchildren came within the scope of the right to respect for family life guaranteed by LAW , maintained that the authorities had examined the second applicant 's requests and were working towards the gradual re - establishment of relations between the children and their grandmother . That said , the most recent developments , in particular , the second applicant 's delay in contacting social services after the cancellation of the first preparatory session , betrayed , in the ORG 's view , a lack of enthusiasm for actually looking after the children . Referring to explanations given by social services , the ORG also contended that priority had to be given to preparing the mother 's visits .", "The Commission considered that the authorities ' decision not to respond to the second applicant 's request for the children to be entrusted into her care was based on relevant grounds , in particular , the fact that it would have been undesirable for the authorities to lose all direct control over the children 's situation . ORG also described the second applicant 's behaviour as incoherent .", "The ORG notes , firstly , that it was common ground that issues relating to the relations between the second applicant and her grandchildren were covered by LAW . It also points out in that connection that “ ' family life ' , within the meaning of Article CARDINAL includes at least the ties between near relatives , for instance those between grandparents and grandchildren , since such relatives may play a considerable part in family life . ' Respect ' for a family life so understood implies an obligation for the ORG to act in a manner calculated to allow these ties to develop normally ” ( see the ORG v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) .", "As to the second applicant 's request to be given care of the children , the ORG notes that LAW no . CARDINAL of DATE gives priority to children being placed with close members of the family living at a known address . ORG notes , however , that the evidence on the case file indicates that the second applicant would have substantial difficulty in looking after the children properly . She was unable to make herself available for an initial preparatory counselling programme prior to contact with the children , as she was living in GPE ( see paragraph CARDINAL above ) . After moving to GPE , she had had to return to GPE in DATE to resolve administrative problems connected with the invalidity benefit she receives for her handicapped son , who remains dependent on her ( see paragraphs CARDINAL above ) . Lastly , she was admitted to hospital in DATE with heart problems ( see paragraph CARDINAL above ) . It is difficult , moreover , for any decisive weight to be attached to the fact that the elder child lived with his grandmother in DATE : he was very young at the time and there is nothing to suggest a close and continuing relationship with the second applicant subsequently . The ORG consequently considers that the authorities ' decision not to entrust the children into the second applicant 's care was based on reasons that remained relevant even after the second applicant 's move to GPE , which in any event proved to be temporary .", "With regard to contact between the second applicant and the children , the ORG notes that her attitude was initially characterised by a degree of incoherence . As the ORG observed , it is difficult to comprehend why the second applicant should refuse to take part in any preparation before seeing the children on the grounds that she lived too far away when she had asked to be allowed to visit twice a week .", "Subsequently , despite the decision of ORG on DATE that contact between the second applicant and the children should start before DATE after a preparatory programme rendered possible at that stage by the second applicant 's move to GPE , she failed to get in touch but simply waited to hear from social services , even after the expiry of the time - limit fixed by ORG . Nor did she consider it necessary to inform the authorities when she travelled to GPE so that the CARDINAL notices of appointment which social services did send , albeit belatedly , were to no avail .", "Although the ORG is not persuaded by the ORG 's explanation for the delay in implementing ORG order concerning the second applicant ( the need for social services to concentrate on preparing contact with the first applicant ) , it considers that the second applicant has not furnished any valid explanation for her failure to act after the time - limit expired or to inform the relevant authorities when she travelled to GPE .", "In the ORG 's view , the second applicant 's conduct betrays a lack of enthusiasm for seeing her grandchildren again , a factor which offsets the authorities ' delay .", "In the light of the foregoing considerations , the ORG concludes that there has been no violation of LAW as regards the second applicant .", "The applicants did not pursue before the ORG their complaints of violations of LAW ( for delays in the examination of their appeals before the domestic courts ) and LAW ( for allegedly discriminatory treatment ) .", "CARDINAL", "In the light of its decision under LAW sees no reason not to follow the conclusions of the Commission on this point and accordingly holds that no separate issue arises under these provisions of the LAW .", "The first applicant complained , on behalf of her children , of a violation of LAW on account of the risk that they would be subjected to improper treatment at “ FAC . In addition , the danger that the children would again be subjected to paedophile assaults or exposed to an environment in which such assaults had been carried out in the past by at least some members of the cooperative was in itself contrary to LAW .", "Article CARDINAL of the ORG provides :", "“ No one shall be subjected to torture or to inhuman or degrading treatment or punishment . ”", "The Government contended in particular that there was no evidence on the case file to prove that the CARDINAL leaders concerned , or other members of the community or people staying there , were abusing or ill - treating the first applicant 's or other children staying at the home .", "The Commission expressed the opinion that there was no concrete evidence in the case file apt to prove beyond all reasonable doubt that the children had been subjected to treatment contrary to LAW .", "Despite the fact that some of the witness statements produced by the first applicant ( see paragraphs CARDINAL above ) give cause for concern and the Government have not contested their veracity , the ORG agrees with the opinion of the ORG , as there is nothing on the case file to indicate that the children have been subjected to treatment contrary to LAW at “ FAC . It should also be noted in that connection that the first applicant has not lodged a criminal complaint with the relevant domestic authorities . Consequently , there has been no violation of LAW .", "NORP In their memorial lodged with ORG , the applicants alleged that there had also been a violation of LAW in that their situation , taken as a whole , had caused them suffering and distress .", "The ORG notes that that complaint , which in substance raises no separate issue from the issues arising under LAW , was not declared admissible by the Commission . The applicants are therefore estopped from raising it .", "The first applicant complained , lastly , that her children did not have adequate schooling and that the only education they seemed to be receiving was that provided within the community . She alleged that there had therefore been a violation of LAW No . CARDINAL .", "DATE of Protocol No . CARDINAL provides :", "“ No person shall be denied the right to education . In the exercise of any functions which it assumes in relation to education and to teaching , the ORG shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions . ”", "The Government maintained that the first applicant 's allegations were unfounded as the children were under constant supervision . They added that some delay in the elder child 's attending school had been inevitable in view of his delicate personal circumstances and the desirability of ensuring his gradual reintegration into the school system .", "The Commission considered that the first applicant 's fears no longer appeared founded as the case file showed , in particular , that the elder child was now attending school . The initial delay seemed , moreover , to have been warranted when the dramatic situation which he had just come through was taken into account .", "The ORG notes that the case file shows that the first applicant 's elder son began school shortly after arriving at “ FAC ( see paragraph CARDINAL above ) . The younger child has just reached school age and the ORG notes form the case file that he is in fact attending a nursery school ( see paragraph CARDINAL above ) . Furthermore , with regard to the influence of “ GPE ” on the supervision and education of the children , the ORG refers to its conclusions on the placement of the children within that community ( see paragraphs CARDINAL - CARDINAL above ) .", "Consequently , there has been no 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 . ”", "ORG The first applicant sought MONEY ( ITL ) in reparation for non - pecuniary damage . She also claimed ITL CARDINAL under that head on behalf of the children for damage they had sustained . The latter claim was based , in particular , on the complaint that the authorities had not sought a solution allowing for the children to be placed with family relatives .", "The first applicant also claimed ITL CARDINAL in the event of a finding by the ORG that the children 's placement had not been suitable .", "As regards pecuniary damage , the first applicant claimed ORG CARDINAL for the loss of her former job , which she attributed to the difficulties caused by her children 's situation that had meant her repeatedly having to take time off work .", "The respondent Government confined themselves to alleging that there was no evidence supporting the first applicant 's claims . They also contended that any finding of a violation of the LAW would give rise to complex and sensitive issues , particularly before ORG , regarding the adoption of individual measures .", "The ORG points out that by LAW undertook to abide by the final judgments of ORG in any case to which they were parties , execution being supervised by ORG . It follows , inter alia , that a judgment in which the ORG finds a breach imposes on the respondent ORG a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction , but also to choose , subject to supervision by ORG , the general and/or , if appropriate , individual measures to be adopted in their domestic legal order to put an end to the violation found by the ORG and to redress so far as possible the effects ( see , mutatis mutandis , the PERSON and Others v. GPE ( LAW ORG CARDINAL DATE , Series A no . CARDINAL-B , pp . DATE , § CARDINAL ) . Furthermore , subject to monitoring by ORG , the respondent ORG remains free to choose the means by which it will discharge its legal obligation under LAW , provided that such means are compatible with the conclusions set out in the ORG 's judgment .", "Accordingly , under LAW the purpose of awarding sums by way of just satisfaction is to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that can not otherwise be remedied .", "As regards pecuniary damage , the ORG considers that the first applicant has not produced concrete evidence in support of her allegations .", "As to the non - pecuniary damage , the ORG considers that the first applicant undoubtedly sustained such damage , as the contact organised with her children to date has been inadequate , visits have been delayed , no explanation was given for the authorities ' decision to place the children at “ FAC , and the re - establishment of relations with the children was hindered by the conduct of those responsible for the children at “ GPE ” . The ORG further notes that since the children were taken into care on DATE , that is to say DATE and DATE , the first applicant has seen them only twice and no contact has been arranged since DATE . It can reasonably be presumed that those circumstances taken as a whole have caused the first applicant substantial anxiety and suffering that have increased with the passage of time . Ruling on an equitable basis , the ORG awards the first applicant LAW .", "The ORG considers , further , that the children personally sustained damage , too , as the increasing risk of an irreversible severance of ties with , in particular , their mother and the danger that their continued placement at “ GPE ” would prevent them from DATE enjoying family life outside the community did not tally with the authorities ' avowed aim of protecting the children 's interests . The ORG therefore considers that it must take that damage into account with reference to the children 's position as applicants and , ruling on an equitable basis , it awards each child in person ORG CARDINAL .", "The first applicant sought ITL CARDINAL,CARDINAL,CARDINAL as reimbursement for the legal costs and experts ' fees incurred in the proceedings before the NORP courts .", "The first applicant further claimed ITL MONEY for legal fees incurred before the ORG and the ORG ( and produced a fee note ) . In that connection , the first applicant 's lawyer has requested that the fees be paid directly to her . To that end , she has produced a certificate that the first applicant has paid her the sum of ITL CARDINAL,CARDINAL on account .", "The Government left the issue to the ORG 's discretion .", "With regard to the costs incurred before the domestic courts , the ORG observes that although at least part of those costs were incurred with a view to obtaining redress of the various violations of LAW , the first applicant has failed to produce any evidence in support . Her claims under that head must therefore be dismissed .", "As to the costs incurred before the Convention institutions , the ORG considers that the case was indisputably complex . It nevertheless finds the sum requested by the first applicant 's lawyer excessive . Ruling on an equitable basis and having regard to the practice of the Convention institutions on this subject , it considers a sum of ITL CARDINAL,CARDINAL,CARDINAL to be reasonable . From that amount should be deducted the sum which the lawyer has received on account from the applicants ( ITL CARDINAL,CARDINAL ) and the sums already paid to her by way of legal aid for the applicants that was granted by both the ORG and the ORG . The latter amounts come to a total of MONEY ( ITL CARDINAL,CARDINAL,CARDINAL ) . Accordingly , the balance payable to the applicant 's lawyer , in accordance with her request , comes to ITL CARDINAL .", "According to the information available to the ORG , the statutory rate of interest applicable in GPE at the date of adoption of the present judgment is PERCENT per annum .", "Done in LANGUAGE and in LANGUAGE , and notified in writing on DATE , pursuant to Rule CARDINAL § § CARDINAL of the Rules of Court .", "In accordance with LAW , the concurring opinion of PERSON is annexed to this judgment ." ]

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[ "The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and lives in LOC . ORG ( “ the Government ” ) were represented by PERSON , ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the Volkhovskiy Town Court of Leningrad Region ordered the applicant ’s reinstatement at work as the managing director of a private company OOO “ Valgomka ” and awarded him payments of lost earnings , arrears on salary , vacation allowance , and compensation for psychological distress . Subsequently , the applicant submitted the writ of execution to ORG and on DATE the enforcement proceedings were initiated .", "On DATE the Volkhovskiy Town Court of Leningrad Region acting on the applicant ’s complaint against the alleged inaction of the bailiffs ordered ORG to enforce the abovementioned judgment .", "On DATE he was reinstated at work as the managing director of a private company OOO “ Valgomka ” . On DATE ORG for LOC terminated the enforcement proceedings concerning the remainder of the judgment due to bankruptcy of the debtor ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant ’s wife died on DATE . On DATE the applicant made a claim for widows’ benefits . On DATE he was informed that his claim had been disallowed as he was not a woman . On DATE the applicant made a request for reconsideration . On DATE the previous decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .", "The applicant was not in receipt of child benefit at the time of his claim .", "The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "The applicants are :", "CARDINAL ) PERSON ( also spelled as ORG Magomadova , born in DATE ,", "CARDINAL ) Ms Ayshat Magomadova ( also known as GPE ) , born in DATE ,", "CARDINAL ) PERSON ( also spelled as Aset ) Magomadova , born in DATE ,", "CARDINAL ) PERSON , born in DATE ,", "CARDINAL ) PERSON , born in DATE .", "The applicants live in GPE , GPE . The first applicant is the mother of FAC , who was born in DATE . The second applicant is his wife ; the third and the fourth applicants are his daughter and son ; the fifth applicant is his sister .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "At the material time FAC was working as a senior officer at the investigations department in the GPE district department of the interior in GPE ( the NORP ROVD ) . He had been doing this since DATE .", "On TIME the applicants , with FAC and other relatives , were at home at CARDINAL FAC , in GPE , GPE . The household consisted of CARDINAL dwellings ; CARDINAL of them was occupied by the first applicant , another by FAC and his family and the third by his brother and his family . The applicants ' house was near a NORP military checkpoint .", "At TIME a group of CARDINAL armed men in camouflage uniform rushed into the applicants ' yard . They broke into CARDINAL groups . CARDINAL group went into the first applicant 's part of the house and the other one went into the part occupied by FAC and his family .", "Those intruders who were not wearing masks had a NORP appearance . The men neither introduced themselves nor produced any documents . They spoke NORP without an accent . The applicants thought that they were NORP military servicemen .", "The servicemen pointed their guns at the applicants and ordered them not to move . CARDINAL of the intruders went into FAC part of the house . They shouted and swore at the applicants and ordered everyone not to move . When the second applicant asked them what was going on , she and her children were forced to go into another room , where some of the servicemen put their guns to the applicants ' heads and ordered them to lie on the floor .", "NORP The rest of the servicemen threw FAC on to the floor , bound his hands , placed a pillowcase over his head , bound it with adhesive tape and took him outside . FAC was barefoot and in his underwear .", "The servicemen did not ask for ORG identity documents . They searched the house and took his service gun , a hunting rifle and a folder with official papers which he had brought home from work .", "After that the servicemen placed FAC in CARDINAL of the CARDINAL APCs ( armoured personnel carriers ) which were parked next to the applicants ' house and took him away .", "According to the applicants , some time later the local military commander told them that representatives of ORG of ORG , ORG ( the ORG ) and ORG ( the ORG ) had requested to be provided with unopposed passage through the checkpoint near the applicants ' house on TIME CARDINAL DATE .", "The applicants have had no news of FAC since DATE .", "In support of their statements the applicants submitted the following : an account by the second applicant given on DATE , an account by the applicants ' neighbour PERSON given on DATE , an account by the first applicant given on DATE , an account given by the applicants ' neighbour Mr N. on DATE and a character reference for FAC by ORG , dated DATE .", "The Government did not challenge most of the account given by the applicants . According to their submission , TIME on DATE a group of CARDINAL unidentified persons armed with automatic weapons and with the support of CARDINAL APCs unlawfully broke into the household situated at CARDINAL FAC , GPE , GPE ; there , using violent threats , they abducted PERSON and departed to an unknown destination ” .", "On DATE the applicants started their search for FAC . They contacted , both in person and in writing , various official bodies , such as the President of GPE , the NORP administration , military commanders ' offices and prosecutors ' offices at different levels , describing in detail the circumstances of their relative 's abduction and asking for assistance in establishing his whereabouts . The applicants retained copies of a number of those letters and submitted them to the ORG .", "On DATE the ORG prosecutor 's office instituted an investigation into the disappearance of FAC under Article CARDINAL § CARDINAL of LAW ( aggravated kidnapping ) . The case file was given the number DATE . Some time later the investigation of the criminal case was transferred to the LOC district prosecutor 's office of PERSON ( the district prosecutor 's office ) .", "On DATE the district prosecutor 's office informed the fifth applicant that they had not established the identity of the perpetrators of her brother 's abduction .", "On DATE , DATE and DATE the military prosecutor 's office of ORG ( the prosecutor 's office of the ORG ) forwarded the first applicant 's requests for assistance in the search for her son to the military prosecutor 's office of military unit no . DATE .", "On DATE the military prosecutor 's office of military unit no . CARDINAL forwarded the first applicant 's request to the military prosecutor 's office of military unit no . DATE .", "On DATE the information centre of ORG of the Interior informed the first applicant that no information was available about her son 's detention .", "On DATE the district prosecutor 's office informed the first applicant that her request for assistance in establishing the whereabouts of FAC had been included in the criminal case file .", "On DATE and DATE ORG of ORG in ORG forwarded the first applicant 's requests to its operational search division in ORG and the GPE prosecutor 's office respectively .", "On DATE , DATE and DATE and DATE the GPE prosecutor 's office forwarded the first applicant 's requests to the district prosecutor 's office .", "On DATE the military prosecutor 's office of military unit no . CARDINAL informed the first applicant that at her request they had examined the theory of the possible involvement of NORP military servicemen in the abduction of her son and that this theory had not been confirmed .", "On DATE detention centre no . CARDINAL of ORG in the PERSON region informed the fifth applicant that FAC was not listed among their detainees .", "On DATE the military prosecutor 's office of military unit no . CARDINAL informed a number of ORG authorities , including the GPE prosecutor 's office , that the involvement of NORP military forces in the disappearance of ORG had not been confirmed .", "On DATE the district prosecutor 's office informed the first applicant that the investigation in the criminal case had been resumed on DATE and that it had been suspended on DATE for failure to establish the identities of the perpetrators .", "On DATE the GPE military commander forwarded the first applicant 's request for assistance in the search for her son to the GPE prosecutor 's office . According to the letter , the first applicant complained about the abduction and stated that the abductors had arrived in APCs and that they had taken away FAC service weapon and hunting rifle .", "On DATE the GPE prosecutor 's office informed the first applicant that on DATE the district prosecutor 's office had instituted an investigation into the abduction of FAC .", "On DATE ORG of ORG in ORG informed the first applicant that its ORG had not abducted FAC .", "On DATE the military prosecutor 's office of the ORG informed the first applicant that information concerning the investigation into the abduction of FAC was available at the GPE prosecutor 's office .", "On DATE the district prosecutor 's office informed the first applicant that on an unspecified date they had resumed the investigation in the criminal case .", "On DATE the GPE prosecutor 's office informed the first applicant that information about the criminal investigation was available at the district prosecutor 's office .", "In DATE the district prosecutor 's office informed the first applicant that on an unspecified date they had suspended the investigation in the criminal case .", "On DATE the military prosecutor 's office of military unit no . CARDINAL informed a number of ORG authorities , including the GPE prosecutor 's office , that the theory of the involvement of NORP military forces in the abduction of ORG had not been confirmed .", "NORP On DATE the GPE prosecutor 's office forwarded the first applicant 's request for assistance in the search for her son to the district prosecutor 's office .", "On DATE the district prosecutor 's office informed the first applicant that her request had been included in the criminal case file materials and that they were taking operational search measures to establish the identity of the perpetrators .", "On DATE the first applicant wrote to the GPE military commander . She complained about her son 's abduction and stated that the intruders had taken his service weapon , a hunting rifle and a folder of official papers . She also pointed out that although the criminal investigation into the abduction had been instituted on DATE , for DATE the authorities had failed to establish the whereabouts of FAC .", "On DATE the fifth applicant requested the district prosecutor 's office to inform her about the progress in the investigation of criminal case no . DATE .", "On DATE the fifth applicant requested the district prosecutor 's office to resume the investigation in the criminal case .", "On DATE the district prosecutor 's office informed the fifth applicant that the investigation in the criminal case had been resumed on DATE .", "On DATE the military prosecutor 's office of military unit no . CARDINAL informed the first applicant that the theory of the involvement of NORP military forces in the abduction of ORG had not been confirmed .", "On CARDINAL DATE the GPE prosecutor 's office informed the first applicant that the district prosecutor 's office was conducting an investigation into her son 's disappearance .", "On DATE the district prosecutor 's office informed the fifth applicant that the investigation in criminal case no . DATE had been resumed on DATE .", "DATE . On an unspecified date the second applicant was granted victim status in criminal case no . DATE .", "The Government submitted that on DATE , upon a complaint by the second applicant about the abduction of FAC , the PERSON prosecutor 's office had instituted a criminal investigation into the abduction under LAW of LAW Criminal Code ( aggravated kidnapping ) . The case file had been given number DATE . On DATE the authorities also opened criminal case no . DATE in connection with the theft of ORG service weapon . Some time later the investigation of these CARDINAL cases was joined into CARDINAL investigation in criminal case no . DATE .", "On DATE and DATE the investigators questioned the second applicant and granted her victim status on DATE . She stated that since DATE her husband had been working in the investigations department of the PERSON ROVD . At TIME on DATE the family was sleeping in their house at CARDINAL FAC . She was woken by a noise in the yard and saw CARDINAL armed men in multicoloured military uniform , high boots and black masks . All these men were armed with typical submachine guns . They ordered her to stay in bed . The men acted in silence ; CARDINAL of them was swearing and speaking unaccented NORP . The intruders threw her husband on to the floor and tied his hands behind his back with adhesive tape . After that they asked the applicant whether there was a balaclava mask in the house . When she replied in the negative , they took a pillowcase , put it over her husband 's head and wrapped adhesive tape around it . After that they took FAC outside ; he was barefoot and in his underwear . They ordered the second applicant to stay inside . However , after the intruders had gone outside , she ran out into the street and saw CARDINAL APCs driving away in different directions . CARDINAL of the APCs drove into FAC , the other one went off in the direction of the LOC autoroute . CARDINAL armed men in camouflage uniform and masks were sitting on each of the APCs . As it was dark , the witness could not see whether there were any identifying marks on the vehicles . According to the second applicant , her relatives , who had been made to stay indoors , also saw the abductors driving away . The intruders had also taken away FAC service weapon , his double - barrelled hunting rifle , a black leather folder with documents from his work , prayer beads , a skullcap and QUANTITY . On DATE the second applicant was questioned again . Her statement was similar to the ones given on DATE and DATE .", "On DATE and DATE the investigators questioned PERSON brother , PERSON , who stated that their family household consisted of QUANTITY houses in CARDINAL yard . FAC and his family lived in CARDINAL house and the witness and his mother ( the first applicant ) in the other . At TIME on DATE the witness was woken up by his mother 's screaming . When he walked out of the room , several men in camouflage uniform and masks pointed their guns at him . They told him that it was a regular identity check . After that they checked his passport and went outside . He followed them and saw CARDINAL APCs driving away from the house in different directions . CARDINAL of them drove away along FAC and the other departed in the direction of a local store . According to the witness , after he had returned home his sister - in - law ( the second applicant ) informed him that his brother PERSON had been taken away and that the abductors had also taken away his brother 's service weapon , a hunting rifle and a folder with documents .", "On DATE the investigators also questioned the applicants ' neighbour , Mr A.N. , who stated that at TIME on DATE he had woken up and heard the noise of engines . Across the street from his house he saw an ORG and men standing next to it . The men were speaking rudely in LANGUAGE . TIME he found out from his neighbours about FAC abduction .", "On DATE ORG of the Interior conducted an inquiry into the abduction of FAC . As a result it was established that he had indeed been abducted by unidentified persons .", "On DATE the investigators questioned the fifth applicant , who stated that on DATE she had been at home when her daughter , who had stayed TIME at the house of the first applicant , informed her about the abduction of FAC . After that the witness had gone to her mother 's house in FAC . There the first applicant and PERSON told her that at TIME armed men in CARDINAL APCs had arrived at the house . The men were wearing masks and camouflage uniform without any insignia or attributes . The intruders had proceeded into FAC bedroom , and without introducing themselves dragged him out of bed . Then they asked the second applicant whether there was a balaclava mask in the house . When the second applicant told them that there was none , they took a pillowcase , put it over FAC head and tied his hands with adhesive tape . According to the witness , her brother had no unpaid debts .", "On DATE ( in the submitted documents the date was also referred to as DATE ) the first applicant was granted victim status in the criminal case and questioned . According to the witness , on DATE she , her son PERSON and other relatives had been sleeping at home . At TIME she had heard a noise in the yard . When the applicant had tried to open the entrance door , a man had pointed his gun at her and ordered her to stay in the house . From the window she saw armed men entering her son 's house , which was situated across from her house in the same yard . According to the applicant , the intruders , a group of CARDINAL military servicemen in masks , spoke NORP among themselves . They had spent TIME in FAC house . After they had left , the first applicant found out from the second applicant that the men had taken away FAC . TIME the applicant had learnt that these men had arrived in CARDINAL APCs and entered their yard by getting over the fence between the applicants ' and one of their neighbours ' yards .", "On DATE and in DATE the investigation in the criminal case was suspended for failure to establish the identity of the perpetrators . The applicants were informed about these decisions .", "On DATE the investigation in the criminal case was resumed . The applicants were informed about it on the same date .", "On DATE and CARDINAL DATE the investigators questioned the applicants ' neighbours , PERSON and Mr Kh . PERSON , who provided similar statements . According to the witnesses , they had not witnessed the events , but on TIME CARDINAL DATE they had found out from their neighbours that at TIME on DATE unidentified armed men , arriving in a NORP vehicle , had abducted their neighbour FAC .", "On DATE , DATE and DATE the investigators informed the applicants that the investigation in the criminal case had been suspended .", "On DATE the investigation of criminal case no . DATE was transferred to the NORP inter - district investigations department of ORG .", "On DATE the investigators questioned the applicants ' neighbour , Mr S.I. , who stated that he had learnt from his acquaintances that at TIME on DATE his neighbour PERSON had been abducted from his house by unidentified armed men in camouflage uniform who had arrived in APCs .", "On DATE the investigators questioned the applicants ' neighbour , PERSON . PERSON , who stated that at TIME on DATE she had been woken by screaming and crying outside . She had gone out into the street and next to the PERSON ' house she had been told that a group of unidentified armed men in camouflage uniform had broken into the house and taken away FAC .", "On DATE and CARDINAL DATE the investigators informed the applicants that the investigation in the criminal case had been suspended for failure to establish the identity of the perpetrators .", "On DATE the investigators informed the applicants that the investigation in the criminal case had been resumed .", "On DATE the investigators questioned PERSON former colleague , ORG , who stated that DATE FAC had worked as the head of the operational division in LOC and after that he had worked as a senior investigator at the PERSON ROVD . At DATE LOC had received a complaint from ORG relatives that he had been abducted from his own house .", "On DATE the investigators informed the applicants that the investigation in the criminal case had been suspended for failure to establish the identity of the perpetrators .", "DATE . On DATE the investigators informed the applicants that the investigation in the criminal case had been resumed .", "On an unspecified date the investigators conducted a crime scene examination at the applicants ' house . No evidence was found or collected .", "On an unspecified date the investigators requested no . CARDINAL Operational Search Bureau of the Chechnya Ministry of the ORG to conduct operational search measures aimed , inter alia , at establishing the identity of eyewitnesses to the abduction who had seen the abductors ' armoured vehicles .", "According to the Government , the investigators also requested information from various ORG authorities about the disappearance . On various dates these authorities , including the district offices of the ORG and the military prosecutors ' office , stated that they had not detained FAC or carried out a criminal investigation into his activities . Also on unspecified dates a number of the district departments of the interior in GPE informed the investigation that they had never detained or delivered PERSON to a temporary detention facility . On unspecified dates the remand centres in GPE and the neighbouring regions informed the investigation that the missing man had never been detained on their LOC . According to the responses from the GPE military commanders ' office and a number of the district military commanders ' offices located in the Republic , the previously acting military commanders ' offices had been disbanded in DATE and no information was available about special operations conducted by these offices prior to DATE .", "The Government submitted that the investigation was checking several theories concerning the abduction of FAC : firstly that his abduction had been committed by NORP military servicemen ; secondly that it had been perpetrated by persons to whom FAC owed money ; thirdly that his abductors were members of illegal armed groups ; and fourthly that his abduction had been carried out for a ransom .", "The investigation failed to establish the whereabouts of FAC . The investigating authorities sent requests for information to the competent ORG agencies and took other steps to have the crime resolved . The investigation found no evidence to support the involvement of federal forces in the crime . The law enforcement authorities of GPE had never arrested or detained FAC on criminal or administrative charges and had not carried out a criminal investigation in his respect .", "NORP In response to the ORG 's request , the ORG submitted several documents from the investigation file , running to CARDINAL pages . The Government requested the ORG to apply Rule CARDINAL § CARDINAL of the Rules of Court concerning confidentiality of the submitted documents and to restrict public access to the submitted documentation . In their request the ORG stated that the criminal investigation was still in progress and that public disclosure of the documents could be detrimental to the interests of participants in the criminal proceedings .", "The Government further stated that a copy of the entire investigation file could not be submitted to the ORG owing to the absence of any guarantees on the part of the ORG of non - disclosure of the secret data contained in the investigation file . In this respect the Government referred to LAW , since the file contained information concerning participants in criminal proceedings . They also cited , by way of comparison , LAW of ORG of DATE ( Articles CARDINAL and DATE ) and the Statute of ORG for the former GPE ( ORG CARDINAL and CARDINAL ) and argued that these instruments provided for personal responsibility for a breach of the rules of confidentiality .", "DATE . For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) ." ]

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

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[ "NORP The applicant was born in DATE and lives in GPE .", "NORP In DATE the applicant joined ORG of Iran ( “ the ORG ” ) .", "In DATE he arrived in GPE . He lived in the PERSON , where ORG members were accommodated in GPE , until he left the organisation in DATE . After leaving the ORG he went to ORG ( “ TIPF ” ) , a camp created by GPE forces in GPE . This facility was subsequently named ORG ( “ ARC ” ) .", "On DATE , after being interviewed , the applicant was recognised as a refugee by the ORG High Commissioner for Refugees ( “ the ORG ” ) Headquarters in GPE during his stay in GPE .", "On an unspecified date the applicant arrived in GPE on a false passport .", "On DATE the applicant was arrested by the NORP security forces while attempting to leave for the island of GPE , GPE , from the port of LOC , on a false passport .", "On an unspecified date the ORG branch office asked the national authorities to grant the applicant access to the asylum procedure in GPE . This request was refused in view of the fact that the applicant ’s presence in GPE constituted a threat to national security given his membership of the ORG .", "On DATE the applicant was transferred to the city of GPE in eastern GPE , apparently with a view to his deportation to GPE .", "On DATE the applicant ’s representative lodged an application with the ORG , requesting it to stop the applicant ’s deportation to GPE and arguing under LAW and CARDINAL of the ORG that his removal to GPE would expose him to a real risk of ill - treatment ( application no . ORG ) .", "On DATE , the President of the Second Section decided to indicate to the Government of GPE , under LAW , that the applicant should not be deported to GPE until further notice .", "With reference to the interim measure under LAW , the deportation proceedings were suspended and on DATE the applicant was transferred to the ORG Foreigners’ Admission and ORG .", "On DATE the Second Section of the ORG found that there would be a violation of LAW if the applicant were to be removed to GPE or GPE ( see GPE v. GPE , no . ORG , § CARDINAL , CARDINAL DATE ) .", "On DATE the General Security Directorate of ORG ( “ the Ministry ” ) decided that the applicant was to be released from the ORG and ORG and issued with a temporary residence permit in GPE . On CARDINAL DATE the applicant was released accordingly . He is currently living in GPE .", "In the meantime , on CARDINAL DATE a lawyer registered with ORG , PERSON , had petitioned ORG for the applicant ’s release from the ORG and ORG .", "Upon the administrative authorities’ failure to reply within DATE , which is considered to be a tacit refusal of the request under section CARDINAL of the Administrative Procedure Act ( Law no . CARDINAL of CARDINAL DATE ) , on DATE Mr PERSON brought an action before ORG . He requested that the court quash the decision of the Ministry not to release his client , which decision infringed his right to liberty as a recognised refugee , and order a stay of execution of that decision pending the proceedings .", "On DATE ORG rejected the request for a stay of execution . PERSON appealed against that decision .", "On DATE ORG declined to examine the appeal request .", "On DATE ORG dismissed the applicant ’s case . It held at the outset that the relevant legislation required the deportation of persons in the applicant ’s position , that is , persons who had entered GPE illegally and whose presence in the country posed a danger to public order and security . If , however , deportation had become unfeasible for some reason , then the individuals concerned would be accommodated at a place designated by ORG until such time as the deportation proceedings could be finalised . ORG noted that in the instant case the applicant ’s deportation had come to a halt following the interim measure indicated by ORG and he had therefore been placed in an accommodation centre in accordance with the law . By refusing his release , the administration had thus acted in accordance with the applicable laws . The administrative court also noted that granting temporary residence permits to persons awaiting deportation would render their monitoring and control very difficult .", "NORP The applicant appealed against the judgment of ORG . He claimed that he had been held at the ORG and ORG since DATE against his will and that this deprivation of liberty had no basis in domestic law and lacked any legal safeguards . He moreover argued that he had not been released from detention despite the judgment of ORG , which had ruled that his deportation would constitute a violation of LAW . He also claimed that the administration had failed to submit any evidence in support of its allegation that he posed a threat to public order and security .", "It appears that the appeal proceedings are still pending before ORG . However , in the meantime , the applicant was released from the ORG and ORG on CARDINAL DATE upon the order of ORG ( see paragraph CARDINAL above ) .", "A description of the relevant domestic law and practice , as well as the international material , may be found in the case of GPE and GPE v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE ) ." ]

[ "5" ]

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

[ "5-1-f" ]

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[ "The applicant was born in DATE and lives in Vitanje .", "On DATE the applicant was injured in an accident at work . The applicant ’s employer had taken out insurance with the insurance company ZT .", "On DATE the applicant instituted civil proceedings against ZT in ORG , Slovenske Konjice Unit ( PERSON sodišče v PERSON , PERSON v ORG ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .", "On DATE ORG ( Okrožno sodišče v PERSON ) gained jurisdiction in the case due to the reform of the NORP court system .", "At an undetermined time in DATE , the presiding judge was appointed to ORG ( PERSON v PERSON ) and the case was assigned to a new judge .", "DATE the applicant made CARDINAL requests that a date be set for a hearing . During this time he lodged CARDINAL preliminary written submissions and/or adduced evidence .", "Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .", "During the proceedings the court appointed a medical expert .", "At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .", "On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .", "On DATE the court allowed both appeals in part and lowered the damages awarded .", "The judgment was served on the applicant on DATE .", "On DATE the applicant lodged an appeal on points of law with ORG sodišče ) . On DATE he sought a recusal of CARDINAL of the judges .", "On DATE the president of the court rejected the request for a recusal .", "On DATE the court dismissed the applicant ’s appeal .", "The judgment was served on the applicant on DATE .", "On DATE the applicant lodged a constitutional appeal .", "On DATE ORG ( PERSON sodišče ) dismissed the applicant ’s appeal . The decision was served on the applicant on DATE ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant , who was born on DATE in GPE , was abandoned by her mother at birth .", "Her birth certificate records the following information :", "“ DATE , DATE , at TIME , a woman , who did not consent to being named , gave birth to a baby girl . ”", "The applicant was placed first in an orphanage and subsequently with the PERSON family . When she was DATE she was adopted by PERSON and PERSON under the simple adoption ( affiliazione ) procedure , by a decision of ORG of DATE .", "At DATE , after learning that she had been adopted , the applicant asked her adoptive parents to tell her who her birth parents were , but did not receive an answer . On an unspecified date she discovered that a young girl living in her village , who had been born on DATE as her , had been abandoned and subsequently adopted by another family under the simple adoption procedure . The applicant suspected that she was her twin sister . The adoptive parents of the CARDINAL girls prohibited any contact between them .", "The applicant stated that she had had a very difficult childhood because she had been unable to find out her origins .", "In DATE the applicant requested information about her origins from ORG , in accordance with CARDINAL of PERSON no . CARDINAL of CARDINAL DATE ( LAW : “ Law no . CARDINAL ” ) , the regulations governing simple adoption having been repealed by that PERSON . ORG gave the applicant her birth certificate , on which her birth mother ’s name did not appear because she had not agreed to have her identity disclosed .", "On DATE the applicant lodged an application with ORG , under LAW no . CARDINAL , seeking rectification of her birth certificate . On CARDINAL DATE the court declined jurisdiction and dismissed the application on the ground that section CARDINAL(CARDINAL ) of Law no . CARDINAL provided that where persons aged over CARDINAL were seeking access to information about their birth parents the court with the appropriate jurisdiction was ORG .", "On DATE the applicant lodged an application with ORG . On DATE the court dismissed her application on the ground that , under section CARDINAL ) of PERSON no . ORG , she was prohibited from gaining access to information about her origins because her mother , at the time of the applicant ’s birth , had not agreed to have her identity disclosed .", "The applicant appealed to ORG , which dismissed her appeal by a decision of DATE .", "The court observed , in particular , that ORG had stressed the fact that the applicant ’s birth mother had requested to keep her identity secret and that it had therefore correctly applied section PERSON ) of PERSON no . CARDINAL of DATE , even though the applicant had been adopted under a simple adoption order , as simple adoption did nevertheless create a family status . ORG found that section PERSON ) was designed to guarantee respect for the mother ’s wishes . The prohibition on allowing the applicant access to information about her origins also served a public interest .", "The applicant did not lodge an appeal on points of law .", "Under LAW , one of the parents may decide not to recognise his or her child . In order to exercise that right , the mother must , at the time of the birth , request the hospital to keep her identity secret . In such a case a medical file containing medical information about the mother and child is drawn up . Only the child ’s general practitioner may have access to the file , with the permission of the child ’s guardian .", "Simple adoption ( affiliazione ) was created in DATE in order to provide assistance to abandoned or parentless children aged DATE . Unlike full adoption , this did not create an effective family relationship and the person being adopted did not have to be childless ; however , he or she did have to be aged DATE . A simple adoption order could be requested by : the person with whom the child had been placed , ORG , or the person who had been raising the child on their own initiative .", "The Articles of the Civil Code providing for simple adoption were repealed as a result of the entry into force of Law no . CARDINAL of CARDINAL DATE ( subsequently revised by Law no . DATE and by Legislative Decree no . CARDINAL of DATE ) .", "Section CARDINAL of Law no . CARDINAL guarantees the right to keep a child ’s origins secret in the absence of express authorisation by the judicial authority .", "NORP Under section CARDINAL ) of PERSON no . MONEY , a mother who decides not to keep her child can give birth in a hospital and at the same time remain anonymous on the declaration of birth . That anonymity lasts DATE , after which access to the birth certificate becomes possible .", "An adoption order , once issued by the court , is sent to the register office so that a note can be made in the margin of the birth certificate . Any copies of the adopted child ’s civil - status certificates must be issued with only the new family name shown and must bear no mention of the biological father or mother or any annotation regarding the adoption . However , where the registrar is expressly so authorised by the court , he or she may disclose this information .", "Adopted children may have access to information about their origins and the identity of their birth parents on reaching DATE . Where there are compelling and proven reasons relating to their physical and mental health , they may obtain that information on their majority . An application is lodged with the family court of their place of residence , which gives its decision after assessing the particular situation and hearing any persons whom it deems it necessary to hear .", "Access to the information is refused where the birth mother has not recognised the child at birth and where CARDINAL of the birth parents has declared their wish not to be named on the birth certificate or has given their consent to the adoption subject to remaining anonymous .", "NORP In a judgment of DATE , ORG held that withholding information about a child ’s origins without first verifying whether the mother still did not wish to be identified was compatible with ORG , CARDINAL and DATE of the LAW .", "The Constitutional Court observed , in particular , that section NORP ) of PERSON no . CARDINAL aimed to protect mothers who – in difficult circumstances – decided not to keep their child , by allowing them the possibility of giving birth in a hospital and at the same time remaining anonymous on the declaration of birth . In the court ’s view , the mother could thus give birth in good conditions and was prevented from taking an irreversible decision . That possibility would be jeopardised if , under that provision , the mother were also to know that she might DATE be called upon by the judicial authority to confirm or waive her decision .", "Article CARDINAL § CARDINAL of LAW provides : “ Appeals to ORG in cases of violations of the law are always admissible against judgments or measures affecting personal freedom pronounced by the ordinary or special courts ” .", "A government bill on access to personal origins has been before ORG DATE . The bill has CARDINAL main objectives :", "i ) to permit and make provision for a procedure whereby confidentiality can be waived without calling into question the legal consequences of the decision initially taken by the mother ;", "ii ) to make a waiver of confidentiality subject to the express agreement of the mother and child .", "Under the provisions of the bill , anyone aged CARDINAL or over who has been adopted and not recognised at birth may apply to the family court for access to information about their origins , subject to the mother ’s agreement . Where the child seeks to discover his or her origins , the family court will take steps to find the mother and obtain her consent to waive confidentiality while respecting her private life . Where the mother has died and where the father has died or can not be identified , the court will obtain information about their identity and any medical data that may disclose the existence of any transmissible hereditary diseases .", "Whilst the system of anonymous or secret births would appear to exist in a minority of countries in LOC , it is not exceptional . In addition to GPE , where for DATE the positive law has provided for a system of anonymous births , other national legislations , which are relatively recent as they have been drafted during DATE , also provide for births in such conditions ( GPE , GPE , GPE , GPE ) .", "In GPE the system of anonymous births tends to resemble that of secret births , like the practice in GPE where the secrecy of the birth mother ’s identity is temporary , rather than definitive , as access to the relevant information is delayed .", "The situation of children born anonymously or secretly is comparable to that of children who find it difficult , or even impossible , to gain access to their biological origins . The omission of the name of CARDINAL or other or of both parents may sometimes be provided for by law , but this is very rare ( GPE , GPE , GPE ) . Usually factual circumstances will prevent the registrar from fully completing the child ’s birth certificate ; court proceedings are brought to determine paternity / maternity and may be available to persons other than the child alone . Notwithstanding the fact that such actions may not necessarily be effective in the particular circumstances , their very existence , allowing research to be done into personal ties maintained by a child with his birth family , provides a safeguard for the interested persons .", "It should further be pointed out that the practice of abandoning children continues in modern forms : there is an undeniable increase in the number of “ windows ” or “ baby hatches ” reminiscent of foundling wheels in DATE . It is practically and materially impossible for the child to gain access to information about his or her birth family ; the register of births will give a “ fictitious ” name to the child that bears no connection to that of its birth parents . The circumstances of the birth may be only partially secret ( GPE , GPE ) , but this will then necessarily mean that some data is available . Legal proceedings are generally available for children searching for their birth mother ( GPE , GPE , the former GPE ) or mothers who may be searching for their child ( GPE ) .", "In the case of full adoption , the child will often lose all contact with its birth family ; the new parent - child relationship will totally erase any ties that may have existed during the child ’s previous life with other adults ( GPE , GPE , GPE , GPE , GPE and the former GPE ) . Access to the birth certificate is sometimes possible from DATE ( GPE , GPE , GPE , GPE , GPE ) . The child may be authorised to gain access to a wider range of information ( GPE , GPE , GPE , GPE , GPE ) , which often presupposes bringing legal proceedings whereby the competing interests may be examined .", "GPE and GPE have set up a mechanism making it easier for adopted persons to gain access to records about their adoption that goes a long way towards reconciling the right to information of the adopted child and respect for the private and family life of the mother or , more broadly , the birth family ." ]

[ "8" ]

[ "8-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before ORG by PERSON , a lawyer practising in the same city . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , of ORG of GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant married Y. On DATE their daughter was born .", "On DATE the applicant ’s wife attempted to commit suicide by jumping from a balcony . According to the applicant , on the same date his parents - in - law arrived and took away his DATE daughter , whom the applicant had asked their neighbours to look after shortly before the incident .", "On DATE the applicant ’s wife died from her injuries without ever having regained consciousness .", "On DATE the applicant instituted proceedings in the ORG in GPE seeking to have his daughter returned to him . The applicant ’s parents - in - law lodged a counterclaim seeking to have full custody of the child . They alleged , in particular , that the applicant had ill - treated Y. and had taken poor care of his daughter .", "On DATE the court found for the applicant . The court held that both the applicant and his parents - in - law were positively characterised and offered appropriate living conditions but that a father should be given priority over grandparents in determining the residence of a child . The court considered that it could not rely on various witnesses’ statements to the effect that the applicant had ill - treated his wife , because the witnesses were his wife ’s friends , disliked the applicant and had never directly witnessed the events described by them .", "On DATE ORG of Appeal quashed this decision and found against the applicant . It noted that on DATE , DATE and CARDINAL DATE ORG for ORG ( “ орган опіки та піклування ORG комітету GPE районної у місті MONEY ) had recommended that the applicant ’s daughter should remain resident with the applicant ’s parentsin - law as a change of home could lead to her suffering serious psychological trauma . According to the medical records submitted , the applicant ’s daughter suffered from residual cerebral insufficiency and showed signs of “ early childhood nervousness ” syndrome . A medical expert assessment performed by ORG ( ORG обласне бюро судово-медичної експертизи ) on DATE had concluded that a change of home could aggravate her state of health . The court also noted that a criminal investigation into whether the applicant had been culpable in DATE ’s death ( in particular , whether he had caused or contributed to her suicide ) was still pending . The first - instance court had also erroneously disregarded the ORG statements to the effect that the applicant had had a negative attitude towards his wife and his family .", "The applicant appealed , stating , inter alia , that his daughter ’s illnesses had been diagnosed DATE after she had been taken to live with his parents - in - law .", "On DATE ORG of GPE rejected the applicant ’s appeal in cassation .", "On DATE ORG rejected an application by the applicant ’s parents - in - law , lodged in DATE , to deprive the applicant of his parental rights and noted that they were preventing him from seeing his daughter . This decision was upheld on DATE by ORG .", "On DATE ORG , after several refusals , instituted criminal proceedings against the applicant on suspicion that he had caused his wife to commit suicide .", "In DATE the same prosecutor ’s office twice terminated the proceedings for want of evidence of a crime . It would appear that these decisions were quashed and the case remitted for fresh investigation .", "On DATE the criminal proceedings against the applicant were finally terminated for want of evidence of a crime . It was concluded that the applicant ’s wife had been depressed , that she had been under the influence of the teachings of an esoteric sect and that she had jumped from the balcony . According to a medical expert report , Y. had had no injuries other than those resulting from her fall . This decision was not appealed against .", "On DATE the applicant instituted proceedings requesting contact with his daughter .", "On DATE the applicant modified his claims , requesting the award of a residence order regarding his daughter .", "DATE and DATE TIME court hearings were scheduled . CARDINAL of them were postponed because the defendants or their lawyers failed to appear or requested additional time to make copies of the case file or to prepare their case . CARDINAL hearings were postponed because both parties or their lawyers failed to appear .", "In DATE the defendants did not appear at CARDINAL subsequent hearings for various reasons . On DATE ORG decided to consider the case in the defendants’ absence finding no serious reason to justify such absence , and found in favour of the applicant .", "On DATE ORG of Appeal quashed this decision and remitted the case for fresh consideration . The court noted that on DATE the defendants had requested the postponement of the hearing because their lawyer was ill and the first - instance court had disregarded this request in breach of LAW .", "DATE and DATE QUANTITY hearings were scheduled , CARDINAL of which was postponed because the parties failed to appear .", "On DATE the Artemivskyy District Court found for the applicant and held that his daughter should live with him . According to the medical reports referred to by the court , since DATE the child had had consultations with a neuropathologist and had been diagnosed with a number of nervous system disorders which had a prenatal origin . However , during DATE the child ’s mental and emotional health had improved and her condition was now stable . Therefore , the court concluded that there was no threat that the child ’s health would worsen because of a change of home . Moreover , it was considered that the absence of contact with her father might aggravate the child ’s health problems .", "On DATE ORG upheld the decision of CARDINAL DATE . It appears that these decisions were appealed against in cassation and by DATE the case was pending before ORG of GPE . The decision of DATE became enforceable and there is no evidence that the defendants requested that its enforcement be postponed pending the cassation proceedings . No further information about these proceedings and about the current place of residence of the applicant ’s daughter was provided by the parties .", "NORP The parents enjoy preferential right for their minor child to live with them .", "NORP The parents have the right to demand taking a minor child from any person who keeps him / her not in accordance with law or judicial decision .", "The court may refuse to remove a minor child and to give him / her to the parents or CARDINAL of them if it is established that this is contrary to the child ’s interest . ”" ]

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[ "The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by Mr Th . PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant was appointed a public notary in GPE . He specialised in contracts for the sale of cars .", "In DATE disciplinary proceedings were instituted against the applicant for not having paid to the notaries ' association ( simvoleografikos sillogos ) of GPE , GPE , the LOC and the NORP PERCENT of the fees he had received from contracts for the sale of cars and motorbikes DATE and DATE . According to the disciplinary charges the applicant had acted contrary to LAW .", "The applicant appeared before the CARDINAL - member Disciplinary Tribunal constituted within ORG Pendameles Pitharhiko Dikastirio tou Efetiou ) of GPE on DATE . He argued , inter alia , that the obligation to pay PERCENT of his fees to the association amounted to a confiscation .", "In a decision issued on the same date the disciplinary tribunal found that the obligation in question constituted a legitimate restriction of professional liberty . It also found that the applicant had indeed failed to pay to the notaries ' association PERCENT of the fees ( which amounted to CARDINAL CARDINAL MONEY ) he had received in connection with the sale of cars and motorbikes during the period in question . As a result , the tribunal decided , by majority , to strike the applicant out of the roll of the association .", "On DATE the applicant , who could not any longer practise as a public notary , appealed on points of law . On DATE ORG ( PERSON ) rejected his appeal . ORG considered that the limitation on professional freedom introduced by LAW was justified in the public interest since its aim was to introduce a measure of fairness in the distribution of the earnings from the particular category of sales among the public notaries . It also considered that all public notaries were treated equally since they were subject to the same obligation . The applicant obtained a copy of the relevant decision on DATE .", "In DATE and DATE , ORG had instituted proceedings against the applicant for the same offence , namely his refusal to pay different sums for the periods DATE , DATE and CARDINAL DATE and CARDINAL DATE and DATE . The CARDINAL - members ORG had suspended his right to practise for DATE .", "Article CARDINAL § CARDINAL of Law CARDINAL reads as follows :", "“ In case of preliminary or final contracts for the transfer of the property of cars or motorcycles , the public notary is obliged to deposit to the notaries ' association or the authorised public notary , for allocation between all public notaries with registered offices in the regions stated in DATE ... PERCENT of his fees . ”", "According to the established case - law of the courts , the above - mentioned provision does not impose on the public notaries different obligations for the drawing up of the same kind of contracts . It simply restricts the rights of all public notaries for the drawing up of a certain category of contracts . Moreover , that provision does not obstruct the free economic activity and free choice or practice of the profession of public notary , nor does it restrict their financial liberty . The obligation to pay PERCENT of the gross earnings is justified by the aim pursued by that provision , namely to avoid that all contracts are drawn up by a small number of privileged public notaries who may have a great number of acquaintances ( Judgment of ORG CARDINAL/CARDINAL , PERSON no DATE , p. CARDINAL ) .", "It transpires from Articles CARDINAL § § CARDINAL and CARDINAL , DATE and CARDINAL of Law CARDINAL/CARDINAL that public notaries are always entitled to a fee when they draw up contracts , with the exception of deeds in which the contracting parties are the ORG , co - operatives and public law corporations . In such cases , the public notary is obliged to reimburse the collected fees within DATE to the notaries ' association which distribute them among its members in accordance with LAW . That provision , which applies specifically to “ state ” contracts aims at preventing certain public notaries from taking advantage of their acquaintances and influence and thus monopolising the drawing up of contracts involving high amounts of money ." ]

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[ "The applicant was born in DATE and lives in PERSON .", "The applicant is a self - employed entrepreneur . He owns a meat processing business . In that capacity he had dealings with a ORG - owned enterprise , ORG , and in particular with CARDINAL of its branch offices .", "NORP In DATE the applicant brought several actions against the branch office in ORG súd ) , ORG ( PERSON súd ) and ORG . He submitted that the defendant owed him money and sought repayment .", "The applicant ’s actions were examined in summary proceedings and resulted in the making of a series of payment orders ( platobný rozkaz ) in DATE . The defendant was ordered to pay the applicant a total of CARDINAL NORP korunas ( SKK ) accompanied by late - payment penalties . The orders were later certified as enforceable as from DATE .", "Having been unable to recover any part of his claim , the applicant filed an insolvency petition against ORG The insolvency proceedings are a separate subject - matter of the present application and they are described in detail below .", "T. subsequently went thought the process of privatisation . It was dissolved on DATE by a decision of its founder , ORG , and all its assets ( “ the privatised assets ” ) were transferred to ORG ( Fond národného majetku – “ FNM ” ) .", "On DATE T. was struck off the register of companies and legally ceased to exist .", "On DATE ORG sold the privatised assets to a private limited company S. As a result of this sale , under LAW of LAW ( Law no . CARDINAL Coll . , as amended ) , all liabilities associated with the privatised assets , including the applicant ’s claims , were transferred to S. The latter acknowledged having assumed such liabilities in a letter of DATE .", "On DATE rescinded the privatisation agreement because it was unable to pay the purchase price . As a result , all liabilities associated with the privatised assets , including the applicant ’s claims , were transferred back to ORG . S. subsequently ceased commercial operations and was eventually struck off the register of companies .", "NORP In DATE the applicant submitted his claim to ORG . He observed that at that time ORG held the privatised assets and considered , therefore , that ORG had also assumed the liabilities associated with these assets and was liable to satisfy the applicant ’s claim . The applicant reiterated the claim in DATE and DATE , but to no avail .", "On DATE the applicant commissioned a judicial enforcement officer to enforce the payment orders of DATE .", "On DATE ORG sold the privatised assets to another private limited company P - I. The liabilities associated with the privatised assets were thus transferred to P - I. which acknowledged having assumed the liabilities in a letter to the applicant of DATE . However , in order to determine their scope , P - I. requested the applicant to provide a detailed summary of his claims .", "On DATE ORG authorised the enforcement of the payment orders of DATE against P - I.", "On DATE P - I. decided to dissolve the company , to establish CARDINAL new private limited companies , PERSON and to divide the assets of ORG . between the new companies . The debt in respect of the applicant was transferred to company ORG - I. was subsequently struck off the register of companies .", "The applicant challenged the decision to dissolve P - I. and to divide up its assets by way of a civil action against P. and PERSON The action is a separate subject - matter of the present application and is described in detail below .", "On DATE the enforcement officer issued an order to freeze the real property of PERSON with a view to enforcing the amounts owed to the applicant .", "In DATE the payment orders of DATE were quashed . The quashing was upheld on the applicant ’s appeals in DATE and DATE . It was held that both the applicant ’s actions and the payment orders had incorrectly identified the applicant ’s debtor as the branch office of T. whereas branch offices had no distinct legal personality and could not be sued .", "As a result of the quashing the enforcement proceedings against companies P - I. and PERSON were discontinued on DATE and CARDINAL DATE , respectively .", "In DATE the applicant ’s wife committed suicide .", "On DATE ORG dismissed a petition by a creditor to declare company LOC insolvent on the ground that the company had no assets . The company was subsequently struck off the register .", "On DATE company P. was declared insolvent . The insolvency proceedings are still pending .", "On DATE the applicant lodged his insolvency petition against T. in ORG .", "On DATE ORG requested the debtor to convene a meeting of creditors in accordance with LAW .", "In a letter of CARDINAL DATE ORG requested ORG opinion as to the implications of the insolvency petition on the process of ORG ’s privatisation . In a letter of CARDINAL DATE ORG expressed the view that as long as T. had not been declared insolvent , which was the case , there were no legal obstacles under the insolvency rules to privatisation .", "On DATE T. informed ORG that all of its assets had been transferred to S. On DATE S. informed ORG that the privatised assets had been transferred back to ORG as a result of its decision to rescind the privatisation agreement .", "On DATE ORG requested ORG to provide information about the current situation concerning the privatised assets . ORG responded on DATE .", "In a letter of CARDINAL DATE the President of ORG informed the applicant in reply to his complaint that the reason why the matter had not yet been concluded was the heavy workload of judges .", "On DATE ORG again requested ORG to provide information about the current situation concerning the privatised assets . ORG responded on DATE .", "On DATE ORG requested the applicant and his lawyer to specify the entity which was the defendant in the proceedings in view of the privatisation of ORG and the restructuring of P - I. In the absence of any response ORG reiterated the request on DATE .", "On DATE ORG discontinued the insolvency proceedings on the ground that despite repeated requests the applicant had failed to specify which entity was the defendant . The applicant did not appeal and the decision became final on DATE .", "On DATE the applicant filed an action challenging the decision of DATE concerning the dissolution of P - I. and the creation of CARDINAL new companies . The applicant also challenged the relevant entries in the register of companies and sought an interim measure staying the enforcement proceedings against PERSON in a different matter .", "On DATE ORG stayed the proceedings under LAW ( d ) of LAW pending the outcome of the insolvency proceedings concerning PERSON The proceedings are still pending ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE ORG in GPE opened an inquiry following a complaint by the director of the local telephone service that the applicant had been harassing him and other employees by making offensive statements and allegations that his telephone had been tapped .", "On DATE CARDINAL of the applicant ’s children complained about her father ’s aggressive behaviour and requested that he be examined by a psychiatrist . She later made a further complaint in writing , stating that the applicant had beaten her . She enclosed a medical certificate as proof of this .", "DATE and DATE the local police department collected written statements from employees of the telephone service , the applicant ’s daughter , his wife and neighbours .", "ORG in GPE requested the applicant to undergo a psychiatric examination on DATE . The applicant did not comply with the request .", "On DATE a prosecutor ordered the applicant ’s forced psychiatric examination and instructed the police to arrest him and bring him to the local mental health centre . These instructions did not refer to the length of time the applicant ’s confinement was to last .", "The applicant was not informed of the above decisions .", "On DATE the applicant was arrested and brought to the GPE mental health centre . On DATE , after a short examination , he was transferred to a psychiatric hospital .", "It transpires from a letter written in DATE by the director of the hospital concerning the complaints which the applicant lodged with the ORG that the hospital administration believed that the prosecutor had ordered that the applicant was to be confined for DATE .", "On DATE the applicant submitted a written complaint to the hospital administration requesting his release . He also complained orally that his detention was unlawful and , on CARDINAL occasion , asked for a lawyer .", "On DATE the applicant was discharged . He attended voluntarily an examination held on DATE but did not turn up when invited for another examination on DATE .", "On DATE the psychiatric hospital forwarded to ORG the ORG opinion on the applicant ’s mental condition . The doctors noted in their opinion that the applicant was suffering from certain disorders , but concluded that the need to subject the applicant to compulsory psychiatric treatment should be decided by the competent court following a fresh assessment of his mental condition .", "On DATE the prosecution authorities submitted to ORG a request for the applicant ’s compulsory psychiatric treatment under LAW of LAW . On DATE the proceedings were terminated .", "On an unspecified date in DATE the applicant complained to GPE about his arrest and detention as well as about the behaviour of the police officers involved in these measures .", "On DATE the applicant filed complaints with ORG and with the Minister of the ORG in which he described the events surrounding his arrest and subsequent detention in the psychiatric clinic . The applicant maintained that the authorities had acted unlawfully . By letter of DATE the Third ORG in GPE , to which ORG had transmitted the applicant ’s complaints , replied that the police officers involved had acted pursuant to the order of a prosecutor order and , therefore , lawfully . In reply to the applicant ’s request for further information , the same police department , in a letter of DATE , stated that the police had acted lawfully in accordance with the order of a prosecutor .", "According to section QUANTITY read in conjunction with sections CARDINAL § CARDINAL , DATE and CARDINAL § CARDINAL of LAW , a mentally ill person can be committed to compulsory psychiatric treatment by a decision of a district court .", "The relevant judicial proceedings are instituted by a district prosecutor who is obliged to undertake a prior inquiry , including the ordering of a psychiatric examination , in order to assess the need for instituting proceedings . The prosecutor would therefore normally invite the person concerned to undergo a psychiatric examination in the framework of his inquiry .", "LAW , as in force at the relevant time , did not contain any provision authorising a prosecutor to order that a person be brought by force to a hospital and be detained there for the purposes of a psychiatric examination .", "In DATE section QUANTITY of LAW was amended . According to the new provisions a prosecutor , in the framework of an inquiry , can order a person ’s confinement in a psychiatric hospital for the purposes of his medical examination if that person has refused to submit himself voluntarily to such an examination . The prosecutor is not obliged to seek a medical opinion before making a confinement order .", "The relevant law – even after the DATE amendment and at the time of the adoption of this judgment – does not provide for an appeal to a court in cases of persons who are detained for an examination in the framework of a district prosecutor ’s inquiry ." ]

[ "5" ]

[ "5-1" ]

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[ "On DATE the first applicant obtained a judgment of ORG ( PERSON районний суд PERSON області ) against the ORG “ PERSON ” ( ORG “ GPE ) , awarding him CARDINAL hryvnyas ( ORG ) in salary arrears and other payments .", "On DATE the second applicant obtained a judgment of ORG ( NORP міський суд GPE області ) against the ORG “ ATP-CARDINAL ” ( ORG ) , awarding him ORG CARDINAL,CARDINAL.CARDINAL in salary arrears .", "These judgments were not appealed against , became final and the enforcement proceedings were instituted to collect the judgments debts .", "On several occasions the bailiffs notified the applicants that they were unable to collect the full amounts of the awards , referring to the fact that financial assets of the debtor - companies were insufficient . They further explained that other assets could not be sold , as the ORG owned PERCENT of the debtor - companies ' share capital . The companies were therefore subject to LAW DATE “ on the LAW of a Moratorium on the Forced Sale of Property ” . The first applicant attempted to challenge the alleged inactivity of the bailiffs and to institute criminal proceedings against the debtor - company 's chief executive officer , however , his attempts were to no avail .", "By DATE and CARDINAL DATE the judgments given in favour of the second and the first applicant , respectively , were enforced in full .", "A description of the relevant domestic law can be found in ORG v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicants were born in DATE and DATE respectively and live in the city of GPE .", "In DATE the Poltava ORG ( hereinafter DATE the ORG ) instituted criminal proceedings for tax evasion against PERSON , who is , respectively , the son of the first applicant and the brother of the second applicant . On DATE the investigator placed PERSON under an obligation not to abscond .", "On DATE , following the failure of PERSON to appear for interrogation and in the absence of information about his whereabouts , an arrest warrant for PERSON was issued .", "On DATE the ORG investigator issued an order for interception and seizure of the postal and telegraphic correspondence of the applicants ( hereinafter DATE “ the interception order ” ) on the following grounds :", "“ The private entrepreneur PERSON , during the period DATE and DATE , intentionally did not pay taxes to the ORG budget in the amount of ORG CARDINAL,CARDINAL , having caused damage and substantial losses to the ORG .", "On DATE the preventive measure – obligation not to abscond – was ordered in respect of PERSON , but , having been summoned by the investigator , PERSON did not come to him , and his whereabouts at the present are unknown . On DATE the preventive measure – detention – was ordered in respect of PERSON", "... PERSON may inform his mother and brother about his whereabouts , using the postal and telegraphic correspondence . ”", "No time - limit for the interception had been fixed in the order .", "On DATE the President of ORG approved the interception order by having signed it . The applicants maintained that they had learned about this order by chance at DATE .", "On DATE the criminal case against PERSON was terminated as being time - barred .", "According to the applicants , PERSON had appeared in DATE and met with the investigator in his case . During this meeting he found out about the interception order .", "On DATE the ORG investigator cancelled the interception order on the grounds that the criminal case against PERSON had been closed and there were no further need to intercept the ORG correspondence . This cancellation was approved and signed by the President of ORG DATE .", "NORP By letter of DATE , ORG , in reply to their complaint , informed the applicants that the interception of their correspondence had been ordered lawfully and therefore the law - enforcement officers incurred no liability .", "On DATE , according to the Government , the whereabouts of PERSON were established by the investigation .", "NORP By letter of DATE to PERSON , in reply to his complaints about the criminal proceedings against him , ORG ( hereinafter “ the ORG ” ) noted , inter alia , that the interception order was not well - founded .", "NORP By letter of DATE , the first applicant was informed that on DATE ( DATE according to the Government ) a letter addressed to her had been intercepted by the police but , as it contained no information about the whereabouts of PERSON , it was not seized but was forwarded to her .", "On DATE the applicants claimed compensation from the Head of the PRPD for the damage caused by ordering the interception of their correspondence .", "By letter of DATE , the Head of the ORG informed the second applicant that the interception order had been lawful and that , therefore , there were no grounds to award damages .", "By letter of DATE , the Head of the ORG informed the second applicant that the seizure of correspondence had been in compliance with the law and that the applicant had no right to compensation , given that the criminal case against his brother had been terminated on non - exonerative grounds .", "NORP By letter of CARDINAL DATE , ORG informed the second applicant that the issue of compensation was within the competence of the courts .", "On DATE the applicants lodged a claim with the NORP ORG of PERSON against the ORG seeking compensation for the moral damage caused by the interference with their correspondence . In support of their claim , they referred to the letter of the ORG of DATE , where it was acknowledged that the interception order lacked grounds .", "On DATE the ORG found against the applicants . The court concluded that the interception order had been lawful and well - founded , the criminal proceedings against Mr V. having been terminated on non - exonerative grounds ( нереабілітуючі обставини ) , and that the applicants did not prove that they had suffered any moral damage due to the interference with their correspondence . The court held that the applicants’ claim was unsubstantiated and that the ORG ’s letter of DATE could not be a ground for awarding them any damages . It , therefore , rejected the ORG claim in full .", "On DATE ORG upheld the decision of the first instance court .", "On DATE the panel of CARDINAL judges of ORG rejected the ORG request for leave to appeal in cassation .", "The relevant extracts of LAW ( first published in the PERSON of the Verkhovna Rada of GPE of DATE , No . CARDINAL , article CARDINAL ) read as follows :", "DATE", "“ Everyone shall be guaranteed privacy of mail , telephone conversations , telegraph and other correspondence . Exceptions shall be established only by a court in cases envisaged by law , with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case , if it is not possible to obtain information by other means . ”", "“ Human and ORG rights and freedoms shall be protected by the courts .", "Everyone shall be guaranteed a right to challenge in court the decisions , actions or omissions of bodies of ORG power , bodies of local self - government , officials and officers . ...", "Everyone shall have a right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . ”", "Article CARDINAL", "“ Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions , acts or omissions by public or municipal bodies or civil servants in the performance of their official duties . ”", "“ CARDINAL . The existing procedure for the arrest , custody and detention of persons suspected of committing an offence , and the procedure for carrying out an examination and search of a person ’s home and other property , shall be retained for DATE after the entry into force of the present LAW . ”", "At the material time LAW in the wording of QUANTITY DATE ( the relevant LAW Law first published in the Gazette of the Verkhovna Rada of the NORP SSR , DATE , No . CARDINAL , article CARDINAL ) read as follows :", "The interception of correspondence and its seizure in postal and telegraphic establishments", "“ The interception of correspondence and its seizure in postal and telegraphic establishments shall be conducted with the approval of the prosecutor or his deputy , or upon the resolution of a court .", "The investigator shall issue an order for interception and seizure of postal and telegraphic correspondence . In that order , the investigator shall propose that a postal and telegraphic establishment intercept the correspondence defined in the order and inform him about it . The examination of correspondence shall be conducted in the presence of CARDINAL representatives of the post office , and TIME are drawn up to this end .", "The interception of correspondence shall be cancelled by an order of the investigator , when the application of this measure is no longer required . ”", "( This Article was substantially re - worded in DATE )", "The relevant provisions of the PERSON ( first published in the official newspaper “ PERSON Ukrainy ” , DATE , No . CARDINAL ) provided as relevant :", "“ The grounds for conduct of the search and seizure activities are :", "CARDINAL ) presence of sufficient information , about ...", "- persons who are preparing or have committed a crime ;", "- persons who are hiding from the investigative bodies , court or are evading the application of criminal sanctions ; ...", "It is prohibited to make decisions on the conduct of search and seizure activities for other purposes than the ones established by this Article . ”", "“ Operational units when executing their tasks in connection with operational searches ( ... ) have the following rights :", "CARDINAL ) to survey selectively , in accordance with particular characteristics , telegraphic and postal correspondence . ”", "Article CARDINAL", "Guarantees of lawfulness during the conduct of search and seizure activities", "“ ... During the search and seizure activities violation of rights and freedoms of individuals and legal persons shall not be allowed . Any limitation of these rights and freedoms shall be of an exceptional and temporary nature ... in the situations stipulated by the legislation of GPE with the aim of protecting the rights and freedoms of other persons , the safety of the society ...", "During the search and seizure activities , officers of the operational units shall be obliged to take into account their proportionality to the level of social danger of criminal attempts and the danger to the interests of the society and the ORG .", "In case of violation of rights and freedoms of individuals and legal persons ... ORG ... shall restore the violated rights and compensate for the material and moral damage which had occurred . ”", "The relevant provisions of the PERSON ( first published in the PERSON of the Verkhovna Rada of GPE of DATE , No . CARDINAL , article CARDINAL ) read as follows :", "Article CARDINAL", "“ Under the provisions of this PERSON a citizen is entitled to compensation for damages caused by :", "... CARDINAL ) unlawful conduct of search and seizure activities ...", "Article CARDINAL", "“ The right to compensation for damages in the amount of and in accordance with the procedure established by this PERSON shall arise in cases of :", "acquittal by a court ;", "the termination of a criminal case on grounds of the absence of proof of the commission of a crime , the absence of corpus delicti , or a lack of evidence of the accused ’s participation in the commission of the crime ;", "the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in sub - paragraph CARDINAL of paragraph CARDINAL of this Article ;", "the termination of proceedings for an administrative offence . ”", "Article CARDINAL", "“ In the cases referred to in LAW the applicant shall be compensated for ...", "CARDINAL ) moral damage . ”", "Article CARDINAL", "“ ... Compensation for moral damage shall be given in cases in which unlawful actions of bodies of inquiry , pre - trial investigation , prosecutors and courts caused moral losses to a citizen , led to disruption of his usual life relations and required additional efforts for organisation of his or her life .", "The moral damage shall be considered suffering caused to a citizen due to physical or psychological influence which led to deterioration or deprivation of possibilities to follow his or her usual habits and wishes , deterioration of relations with people around , other negative impacts of moral nature . ”" ]

[ "13", "8" ]

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[ "The applicant , Mr PERSON , is a GPE national who was born in PERSON in DATE and lives in PERSON , the GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .", "The respondent Government are represented by their Agent , Mrs A. ORG , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant works as a lorry driver .", "On DATE he failed , in an inspection by an agent of ORG ( ORG für GPE – hereinafter called ORG ) , to present documentation as to whether he had driven his lorry DATE and DATE . The protocol of that inspection was drawn up in NORP , contained the applicant ’s comments and was signed by him . The protocol further noted that he had paid a security ( PERSON ) of CARDINAL NORP Guilders .", "On DATE ORG issued a regulatory fine order ( ORG ) against the applicant , stating that he had committed a regulatory offence ( PERSON ) . It held that the applicant had violated section CARDINAL no . CARDINAL ( a ) in conjunction with section CARDINAL ( CARDINAL ) sentence CARDINAL of the crew regulations ( GPE ) .", "ORG imposed a fine of CARDINAL Deutschmarks ( DATE ) .", "The applicant was served the regulatory fine order on DATE . The fine order was written in NORP and included an instruction about his available legal remedies ( PERSON ) in NORP . According to that note the applicant had the right to lodge an objection with ORG within DATE after the serving of the decision .", "On DATE the applicant took notice of the regulatory fine order and sent it to his legal insurance company ( Rechtsschutzversicherung ) afterwards .", "The latter received the fine order on DATE and forwarded the regulatory fine order to the applicant ’s legal counsel on DATE .", "On DATE the applicant ’s legal counsel received the regulatory fine order and accompanying documents and lodged an objection with ORG on DATE .", "On DATE ORG informed the legal counsel that the objection had been lodged outside the statutory time - limit .", "On DATE the legal counsel requested the reinstatement of the proceedings ( Wiedereinsetzung in den vorherigen Stand ) . He argued that according to the general terms and conditions of the legal insurance company the applicant had been required to send the regulatory fine order first to the insurance company instead of sending it directly to his legal counsel . Hence he could not be held responsible for the time it took ORG to deliver his mail . The applicant submitted an according affirmation in lieu of an oath , but he presented neither a copy of the general terms and conditions of his legal insurance company nor any proof for the actual period of time it had taken his letter to reach his legal insurance company .", "On DATE ORG rejected the applicant ’s objection as inadmissible for having been lodged out of time . Furthermore , ORG rejected the applicant ’s request for reinstatement of proceedings . It held that the period of time for the delivery of his mail was contrary to all life experience and that the general terms and conditions of his legal insurance company did not justify the delay .", "On DATE the applicant requested the review by court ( Antrag auf gerichtliche GPE ) . Invoking LAW ( a ) of the LAW , the applicant argued that the regulatory fine order should have been served in a language he understood . Therefore , the decision had not been effectively served ( wirksam zugestellt ) . In this respect the applicant referred to instruction no . CARDINAL of the “ Instructions on Criminal Procedure and Administrative Fine Procedures ” ( PERSON das Straf- PERSON ) which stipulates that if the recipient does not have a sufficient knowledge of the NORP language , all documents have to be served with a translation into a language he understands ( see “ Relevant domestic law and practice ” below ) . Furthermore , the applicant drew the court ’s attention to the decision of the ORG decision of DATE ( see “ Relevant domestic law and practice ” below . )", "On DATE the GPE ORG confirmed ORG decision for the following reasons . It held that ORG had not been obliged to provide a translation of its regulatory fine order and the instructions about the available legal remedies , because LAW ( a ) of the LAW was only applicable to criminal proceedings . It denied its applicability to proceedings relating to regulatory offences ( PERSON - widrigkeitenverfahren ) . Furthermore , the court recalled that an affirmation in lieu of an oath was not sufficient in such proceedings , because it could only be qualified as a simple declaration .", "The applicant then lodged a constitutional complaint with ORG arguing that his right to be heard by a court ( LAW had been infringed , because he had not been granted reinstatement of the proceedings . The applicant repeated that LAW ( a ) of the LAW had been applicable to his case .", "On DATE ORG refused to admit the applicant ’s constitutional complaint without providing any reasoning .", "“ No . CARDINAL", "I ...", "ORG , arrest warrants , penal orders and other court decisions are to be served to a foreigner , if he does not have sufficient knowledge of the NORP language , with a translation into a language he understands . ...", "No . CARDINAL", "Nos . CARDINAL through CARDINAL apply analogously to administrative fine proceedings “", "Section CARDINAL", "“ If a person was prevented from observing a time - limit through no fault of his own , he shall be granted reinstatement of the proceedings upon his motion . ...", "Section CARDINAL", "( CARDINAL ) The motion for reinstatement of the proceedings shall be filed with the court at which the time - limit should have been observed , within DATE after the reason for non - compliance no longer applies . To observe that time - limit it is sufficient to file the motion in a timely fashion with the court that will decide on that motion .", "( CARDINAL ) The facts justifying the motion shall be demonstrated ( glaubhaft machen ) at the time the motion is filed or during the proceedings upon that motion . The omitted act shall subsequently be undertaken within the time limit for filing the motion . Where this is done , reinstatement may also be granted without an application being filed . ”", "In its decision ( see no . CARDINAL BvR CARDINAL/CARDINAL , Decisions of ORG ) , vol . CARDINAL , pp . CARDINAL et seq . ) ORG dealt with the following case . A NORP national , who could neither read nor write NORP , was served a penal order . It included instructions about his available legal remedies written in NORP . Having problems finding a translator , he missed the statutory time - limit for lodging an objection . His request for reinstatement of the proceedings was rejected . ORG held that the applicant ’s right to be heard under LAW had been violated . It found that the applicant , lacking sufficient knowledge of the NORP language , had been unaware of the statutory time - limit for lodging an objection . Therefore , his lack of understanding of the instructions about his available legal remedies was the reason for missing the time - limit . It followed that the applicant had to be treated as if he had never received instructions about his available legal remedies . ORG concluded that as a consequence for future cases , reinstatement has to be granted , if the recipient of a penal order ( PERSON ) or a regulatory fine order missed the time - limit for lodging an objection , because he did not understand the instructions about his available legal remedies ." ]

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[ "ORG Mr PERSON , a retired industrialist of NORP nationality , lives in PERSON ) . His sisters , PERSON and PERSON , live respectively in GPE and GPE .", "ORG The applicants held between them CARDINAL shares in the ORG immobilière du ORG , a company under NORP law whose sole asset was an agricultural estate of QUANTITY in the NORP province of PERSON and whose share capital comprised CARDINAL shares . They further owned almost all of the share capital of the ORG foncière du ORG , a non - trading company ( société civile ) under NORP law , which itself owned CARDINAL shares in the NORP company in addition to a building in GPE .", "ORG Under a dahir ( royal decree ) of DATE ORG nationalised agricultural land belonging to foreigners .", "ORG On DATE , following negotiations , the NORP and NORP Governments concluded a LAW with a view to making provision for the financial consequences of the nationalisation of NORP ORG assets . The following provisions are relevant to the instant case :", "\" The NORP Government shall pay the NORP Government compensation in a single lump sum and the NORP Government shall be responsible for apportioning that sum among the beneficiaries of this LAW .", "The beneficiaries shall be natural persons of NORP nationality who are individual or joint landowners or members of partnerships or companies , or who suffered the consequences of the dahir of DATE in any other capacity . \"", "\" The NORP Government shall be responsible for apportioning the compensation provided for in this LAW . ... \"", "\" With effect from the signature of this LAW , each Government undertakes , subject to the other ORG ’s compliance with their obligations under LAW , to refrain from submitting to the other Government or to an arbitral tribunal or a court any claims made by their nationals in respect of the assets , rights and interests referred to in LAW , CARDINAL and CARDINAL of this LAW or from supporting such claims . \"", "A decree of DATE promulgated the text of the agreement and charged the Prime Minister and the Minister for ORG with implementing it .", "ORG Under a decree of DATE a committee responsible for apportioning the NORP indemnity was set up . Article CARDINAL of the decree provided :", "\" The committee shall comprise", "( a ) a representative of ORG , who shall chair the committee ;", "( b ) a representative of ORG ;", "( c ) a representative of ORG ; and", "( d ) a representative of ORG .", "The Chairman and members of the committee shall be appointed by order of the Minister for ORG .", "...", "Decisions shall be taken by a majority . The Chairman shall have a casting vote . \"", "ORG In a decision of DATE , notified on DATE , the committee awarded the applicants , as natural persons , compensation solely in respect of the shares they owned directly in the ORG immobilière du ORG , i.e. CARDINAL shares in Mr PERSON ’s case and CARDINAL shares in the case of each of his sisters . On the other hand , pursuant to the second paragraph of LAW , it refused to pay them compensation in their capacity as majority shareholders of the ORG foncière du ORG .", "ORG On DATE the applicants challenged this decision in ORG . The grounds for their application were set out in a memorial filed on DATE . They complained that the committee had determined the compensation to be awarded in respect of the NORP property company ’s agricultural estate solely on the basis of the shares they held in that company in their own names , without taking into consideration the shares they owned in the NORP property company .", "The Minister for ORG , the respondent in the proceedings , submitted his observations in reply on DATE .", "ORG In an order of CARDINAL DATE the Vice - President of ORG held that the dispute fell outside that court ’s jurisdiction and forwarded the application and the file to the ORG d’Etat .", "ORG The Minister for ORG filed observations on DATE .", "ORG On DATE the ORG d’Etat deferred its decision on the application until the authority empowered to interpret the LAW had given its opinion . It gave the following reasons :", "\" The outcome of this dispute depends on whether , under LAW [ CARDINAL of the Franco - Moroccan Protocol ] , natural persons are entitled to claim compensation solely as members of partnerships or companies that were the direct owners of assets conferring a right to compensation under the above - mentioned LAW or whether they are also entitled to do so as shareholders of companies themselves members of the partnerships or companies which owned such assets . The outcome of the dispute is accordingly contingent on the interpretation of the LAW . The LAW is an international agreement and its meaning is unclear . Consequently , only the Minister for ORG is competent to interpret it . \"", "ORG In a note of CARDINAL DATE the Minister replied that the LAW in question \" was not ... intended to cover natural persons holding shares in companies which themselves were members of the partnerships or companies that owned the assets conferring a right to compensation \" , with the result that the applicants were not entitled to compensation under LAW .", "ORG On DATE the applicants filed further submissions , in which they argued that , if the ORG d’Etat considered itself bound by the minister ’s interpretation , such a decision would entail a violation of LAW para . CARDINAL ( article CARDINAL ) of the Convention .", "The respondent filed submissions on DATE .", "ORG In a judgment of CARDINAL DATE the ORG d’Etat dismissed the application on the following ground : \" The interpretation given by the Minister for ORG is binding on the PERSON d’Etat which can only draw the legal conclusions which follow from it . \"", "ORG Since DATE ( see the Veuve Murat , ORG , judgment of DATE , PERSON du ORG d’Etat [ Reports of the judgments of the ORG d’Etat ] , p. CARDINAL ) the PERSON d’Etat had held that the interpretation of international treaties fell outside the scope of its judicial functions . When confronted with provisions that it considered insufficiently clear - except for Community legislation , the interpretation of which is governed by LAW - it relied on the official interpretation given by the Minister for ORG . It deemed that interpretation to be a prerogative act that could not be dissociated from international relations , had binding force and was not open to challenge in the courts ( see the full court ’s judgment of DATE in the case of PERSON and ORG , PERSON du ORG d’Etat , p. CARDINAL , GPE DATE , III , p. CARDINAL ) .", "ORG On DATE the ORG d’Etat , sitting as a full court and endorsing the submissions of the Commissaire du gouvernement , PERSON , delivered a judgment relating to the conditions of circulation , residence and employment of NORP nationals and their families in GPE ( G.I.S.T.I. judgment , GPE des arrêts du ORG d’Etat , p. CARDINAL ; PERSON juridique . ORG administratif DATE , p. CARDINAL ; Revue générale de droit international public DATE , p. CARDINAL ; Revue française de droit administratif DATE , p. CARDINAL , with a note by Mr PERSON ; Revue critique de droit international public DATE , p. CARDINAL ) . It discontinued the practice - which had no equivalent in the other member ORG of referring a preliminary question to the minister on the construction of an international treaty containing ambiguous or unclear provisions . It now interprets international agreements itself and , if it seeks the opinion of the executive , it does not regard itself as bound thereby .", "ORG Since a judgment of DATE ( Dalloz CARDINAL , part CARDINAL , p. CARDINAL ) , ORG have held that the ordinary courts are entitled to interpret clauses of a treaty \" provided that they do not raise issues liable to jeopardise good international relations \" ( l’ordre public international ) . Otherwise , if an instrument is unclear they still require the question to be referred to the Minister for ORG ( judgment of DATE , ORG , ORG périodique DATE , part CARDINAL , no . DATE ) .", "In ORG the principle of a lack of jurisdiction entailing an obligation to seek a preliminary interpretation continues to apply . With the exception of ORG , \" international treaties are measures taken by the highest administrative authorities which can only be interpreted , if necessary , by the authorities which concluded them \" ( judgment of DATE , ORG [ ORG law reports ] , no . CARDINAL , p. CARDINAL ) . The official interpretation is of general application and is binding on the courts ( judgment of DATE , Bulletin des arrêts de la ORG , no . CARDINAL , p. CARDINAL ) .", "On the other hand , ORG recently abandoned the approach of distinguishing between international treaties and now interprets them without seeking to establish whether issues liable to jeopardise good international relations are raised ( ORG autonome mutuelle de retraite des agents des chemins de fer judgment of DATE and submissions filed by ORG , PERSON , ORG , DATE , p. CARDINAL ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and prior to his conviction lived in PERSON .", "On DATE the investigator of ORG , with approval by a prosecutor , requested ORG , ORG , to remand the applicant in custody on suspicion of banditry and involvement in an organised criminal group .", "On DATE the applicant was arrested .", "In the meantime , on DATE ORG remanded the applicant in custody . The court held as follows :", "“ The crimes of which [ the applicant ] is suspected fall into a category of especially grave crimes punishable by over DATE imprisonment .", "Opting for a more lenient preventive measure for [ the applicant ] is impossible , taking into account the particular gravity of the crimes of which [ the applicant ] is suspected , as well as the fact that disclosure of the identity of members of a criminal gang , including [ the applicant ] , can create a real threat to the safety of witnesses , victims and their relatives , which follows from [ statements ] by [ witness NORP ] ... ”", "On DATE charges of banditry , involvement in a criminal group , extortion and fraud under Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Criminal Code were brought against the applicant . He was questioned as the defendant .", "On DATE ORG upheld the decision of CARDINAL DATE on appeal .", "On an unspecified date the applicant challenged the lawfulness of his arrest . Stating that he was an advocate , the applicant claimed that his arrest required the prior consent of a court . On DATE ORG , acting as the most senior level of jurisdiction , found the applicant ’s arrest not to have breached the requirements of the domestic law .", "On DATE ORG extended the applicant ’s detention until DATE . The court held as follows :", "“ The crimes [ charged against the applicant ] belong , pursuant to LAW , to the category of particularly grave crimes , which according to LAW gives ground for the application of a [ custodial measure ] . ...", "At the present time it is necessary to carry out several operational and investigative actions , to establish the whereabouts of the known members of the criminal gang , to bring charges against them , to carry out interrogations and confrontations , as well as to familiarise the defendants , the victims and their counsel with the case - file material . ...", "The argument by defence counsel about the change of circumstances which laid the basis for application of a custodial measure can not be taken into consideration .", "The reference of defence counsel to the fact that the charges against [ the applicant ] do not involve an episode involving [ witness NORP ] , whose statement that he had received death threats from [ the applicant ] had been the ground for application of a custodial measure , is unsubstantiated .", "A statement by [ witness NORP ] , his handwritten explanation , as well as the record of the viewing of a video recording of DATE , from which it follows that NORP is a witness to a crime , [ that he ] fears for his life and [ that ] the threat comes , inter alia , from [ the applicant ] , have been examined by the judge [ ... ] as matters characterising [ the applicant ’s ] personality and giving grounds to believe that his being at large could constitute a real danger to safety for [ witness NORP ] as for other witnesses , victims and their families .", "Therefore , taking into account the foregoing and the nature of the crimes with which [ the applicant ] is charged , the court concludes that there are sufficient grounds to believe that [ if not detained , the applicant ] may interfere with the proceedings in the criminal case by influencing witnesses .", "In such circumstances there are no grounds for altering the custodial measure to a more lenient one . ... ”", "On DATE ORG upheld the above decision on appeal .", "On DATE and DATE ORG extended the applicant ’s detention until DATE and DATE respectively . The court relied on the gravity and the nature of the charges , the particular complexity of the case and the necessity to carry out subsequent investigative actions . It further invoked the risks of the applicant ’s absconding and hampering the criminal proceedings by exerting pressure on witnesses and victims , and the absence of any grounds for altering the custodial measure .", "On DATE ORG upheld the decision of DATE on appeal .", "On DATE ORG extended the applicant ’s detention until DATE . The court held as follows :", "“ It appears from the case - file material that the armed gang of which [ the applicant ] was a member had and has well - tested systems of secrecy and defence from law - enforcement bodies ( отработанные системы конспирации и защиты от правоохранительных органов ) ; if at liberty [ the applicant ] might take action against the ongoing investigation , including by way of exerting unlawful pressure on witnesses and victims .", "It follows from the case - file material that in the course of operational search activities officers of ORG at ORG of the ORG obtained information to the effect that the members of the GPE criminal group , knowing that criminal proceedings in connection with its criminal activity had begun , were making inquiries about those who had been questioned in the case as witnesses and victims , with the view of subjecting them to unlawful influence . ... ”", "On DATE ORG upheld the above decision on appeal .", "On DATE ORG further extended the applicant ’s detention until DATE , that is for a total duration of DATE . In taking the relevant decision ORG had regard to the particular gravity of the charges against the applicant and the risk that he would exert pressure on witnesses ( the court applied the wording of the previous extension order of DATE ) . The court also examined the possibility of applying a more lenient preventive measure and dismissed it .", "On DATE the charges against the applicant were rectified . They involved banditry , involvement in a criminal group , extortion , fraud , pressurising those involved to complete deals , organising robbery , murder , attempted murder and infliction of grave bodily harm , and trafficking in firearms and ammunitions under ORG CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § DATE , CARDINAL § CARDINAL ( in conjunction with LAW ) , CARDINAL § CARDINAL ( in conjunction with Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) , CARDINAL § CARDINAL ( in conjunction with LAW § CARDINAL ) and CARDINAL § CARDINAL ( alone and in conjunction with LAW ) of LAW .", "On DATE the applicant and his lawyer were informed that the pre - trial investigation had been terminated . From the documents submitted by the Government it can be seen that they both signed the document on termination of the pre - trial investigation and expressed the wish to read the case file , both together and separately .", "On DATE the applicant started reading the case file .", "On DATE the applicant ’s lawyer was invited to study the case file . This is supported by a letter inviting the applicant ’s lawyer to appear at the IZ-CARDINAL/CARDINAL facility in Ryazan at TIME to study the case - file material . The letter bears a handwritten note made by the head of the bar association , of which the applicant ’s lawyer was a member : “ Received for transfer to PERSON . CARDINAL DATE . Signature ” .", "On DATE ORG extended the applicant ’s pre - trial detention until he and his lawyer had finished studying the case file ( consisting of CARDINAL volumes ) , but not beyond DATE . The court held as follows :", "“ [ ... ] Pursuant to LAW , if upon completion of a pre - trial investigation the time - limits set out in LAW for giving the accused and his counsel access to the case file have been complied with , but the DATE period proves insufficient for them to read the entire file , an investigator [ ... ] may submit to the court , DATE before the expiry of the maximum detention period , a request for extension of the period of detention . In [ the applicant ’s ] case the above - mentioned requirements of law have been complied with .", "In his request for extension of [ the applicant ’s ] detention pending the investigation until [ the applicant ] and his counsel had finished reading the file [ ... ] the investigator indicated that at the present moment there were no grounds for altering or discontinuing the application of a [ custodial measure ] . As before , there are sufficient reasons to believe that , if released , [ the applicant ] , taking into account the gravity of the charges against him , may abscond or otherwise obstruct the proceedings in the case . Therefore , the circumstances which led the court to apply the custodial measure to [ the applicant ] have remained unchanged .", "At the same time , extending [ the applicant ’s ] detention until he and his counsel have finished reading the case file ... without indicating a specific DATE contradicts the requirements of LAW . The above Article implies that the extension is granted for the time requested by the investigation authorities . [ However ] , extending [ the applicant ’s ] detention without indication of a specific DATE ... would have worsened [ his ] situation and removed the preventive measure from judicial control .", "On DATE the Deputy Prosecutor General extended the time - limit for pretrial investigation ... until DATE inclusive .", "Therefore , the court extends [ the applicant ’s ] detention until he and his counsel have finished reading the case file ... , until DATE inclusive , that is until the expiry of the time - limit for the pre - trial investigation . ...", "The argument put forward by the defence , to the effect that the investigation authorities have breached the requirements of LAW , is unsubstantiated .", "It follows from the record on termination of the investigative actions of DATE that [ the applicant ] and [ his lawyer ] expressed their wish to read the case file both together and separately .", "On DATE the head of ORG [ of ORG ] , PERSON , received a notification in the name of [ the applicant ’s lawyer Yud . ] informing [ the latter ] that [ the applicant ] had started reading the case file and that he was also invited to appear on DATE at the Ryazan IZ-CARDINAL/CARDINAL remand prison to [ study the case file ] .", "According to the record of the studying of the case file and statements made by [ the applicant ] and [ his lawyer ] , they met in the remand prison on several occasions after DATE , yet did not discuss when they would jointly study the case file .", "It appears from the foregoing that until DATE [ applicant ’s lawyer Yud . ] deliberately did not appear to study the case file , to give himself an opportunity to use this situation before the court .", "The requirements of LAW were therefore complied with ... ”", "On DATE ORG upheld the above decision on appeal .", "On DATE , and DATE , CARDINAL DATE and CARDINAL DATE , ORG further extended the applicant ’s detention until he and his lawyer had completed their reading of the case file , but not beyond DATE , CARDINAL DATE and CARDINAL DATE , and CARDINAL DATE respectively . All the decisions were worded similarly to the decision of DATE .", "On DATE and DATE , CARDINAL DATE and CARDINAL DATE respectively , ORG upheld the above decisions on appeal .", "Following the request by the investigator , on CARDINAL DATE ORG limited until DATE the time for the applicant and his lawyer to study the case file .", "On DATE the investigator took a decision that the reading of the case file by the applicant and his lawyer should be terminated .", "On DATE the applicant and his lawyer signed the record to the effect that they had completed their reading of the case file .", "On DATE , however , ORG further extended the applicant ’s detention until DATE , with reference to LAW . The court had regard to the fact that the applicant ’s lawyer had submitted a request ( the nature of the request was not specified in the relevant court decision ) which had not yet been processed , that other co - defendants had not finished reading the case file , and also to the gravity and the nature of the charges against the applicant and the risk of his absconding or otherwise interfering with the course of the proceedings .", "On DATE the criminal case against the applicant and CARDINAL others was transferred to ORG for trial .", "At the preliminary hearing on DATE ORG extended the applicant ’s and CARDINAL other co - defendants’ detention during judicial proceedings until DATE . In so far as it concerned the applicant , the decision read as follows :", "“ ... [ The applicant ] was arrested on DATE . His detention has been repeatedly extended in accordance with the criminal procedural law , the last time until DATE , for a total of DATE , DATE and DATE .", "...", "Pursuant to LAW a preventive measure can be lifted or changed if it is no longer necessary or if the grounds for its application have changed .", "It follows from the material examined by the court that the factual circumstances which had served as the ground for the court decisions to apply a custodial measure to the defendants and its subsequent extension have not changed and remain ... sufficient , from the point of view of the principle of reasonableness , to maintain the [ above ] preventive measure . No convincing arguments were put forward by the defence as to the existence of any new factual or legal grounds for altering the preventive measure .", "The circumstances pointed out by the defendants and their counsel such as [ the GPE ] positive references , their family situation , [ the existence of ] permanent residence , [ their ] state of health and the necessity to support their families , do not preclude a risk of them absconding from justice or otherwise obstructing the proceedings in the case , since the defendants are charged with particularly grave crimes , including banditry . ...", "The [ above ] circumstances are not favourable for replacing the [ custodial ] measure with [ a more lenient one ] .", "Notwithstanding the overall length of the GPE detention , the existing risk of their absconding is a sufficient ground for limiting their [ right to ] liberty of person . Furthermore , the extension of detention in respect of defendants charged with banditry is justified by the necessity to protect the rights and interests of victims and witnesses , as well as the public interest , which , in spite of the presumption of innocence , outweighs the respect for individual liberty . ... ”", "On DATE ORG upheld the above decision on appeal .", "In the meantime , on DATE ORG had scheduled the opening date of the trial and maintained the preventive measures applied to the applicant and his co - defendants .", "On DATE ORG extended the applicant ’s and CARDINAL other co - defendants’ detention for DATE , until DATE . It found as follows :", "“ ... [ The defendants ] have been charged with banditry and involvement in criminal community , - criminal offences directed against public safety and public order . [ The applicant and CARDINAL other co - defendants ] have also been charged with aggravated murders . The crimes charged against the defendants belong to a category of grave and particularly grave crimes the punishment for which not only exceeds CARDINAL years’ imprisonment , but also exceeds the time the defendants had spent in custody so far .", "According to the information contained in the case file regarding the [ defendants’ ] personalities :", "- [ the applicant and CARDINAL others ] , who have families and children , were not working for a long time before their arrests ; ...", "It also follows from the submissions by the prosecution that :", "[ Prosecution witness PERSON . ] submitted to the court that pressure had been exerted on him by the defendants in respect of whom the custodial measure had been applied with the purpose of forcing him to make false statements about them .", "[ Defendant PERSON ] who admitted his guilt [ ... ] but who had not yet been questioned by the court on the merits of the charges , asked the court to take safety measures in his respect until he had been questioned , fearing [ intimidation ] by [ the defendants in detention ] . ...", "Safety measures had been taken in respect of a number of witnesses who [ also ] feared for their safety . Some of them ... were questioned by the court anonymously and in conditions in which they could not be seen by others present during the proceedings .", "[ Separate proceedings were instituted against several other suspects who are being searched for . ] ...", "The breaches of court orders committed by the defendants during the questioning of prosecution witnesses show that they were attempting to influence witnesses even in court .", "Of CARDINAL [ prosecution witnesses ] the court has questioned CARDINAL .", "Therefore , it has been established that the court had not questioned the majority of the witnesses and victims ; [ that ] there are grounds to be concerned about [ the risk of ] unlawful influence over them by the defendants ; [ that ] there are witnesses and one of the defendants who fear such influence ; [ that ] the defendants have actual opportunity to exert such influence even while they are in custody ; [ and that ] there are witnesses who have already been intimidated [ by the defendants ] .", "Analysis of the above information gives grounds to believe that , if released , the defendants not only may abscond and maintain their criminal activity , but also influence victims and witnesses who have not yet been questioned by the court , thereby obstructing the administration of justice .", "The defence has not put forward any circumstances preventing the defendants from being detained in custody ; nor can any such circumstances be seen from the case file . The defence has also not put forward a valid argument regarding the existence of new factual or legal grounds for altering the custodial measure .", "The circumstances mentioned by the defence ... such as [ the GPE ] positive references , their [ family situation ] and [ existence of permanent residence ] ... can not be viewed by the court as preferential and sufficient grounds for altering the custodial measure . Besides , the existence of these circumstances as such does not exclude the possibility that the defendants will abscond or otherwise obstruct the proceedings in the case , since they are charged with particularly serious crimes , including banditry , punishable with imprisonment .", "When examining parties’ requests concerning custodial measures the court takes into consideration : the gravity and the nature of the charges against the defendants ; the reasonableness of the suspicion justifying the placement of each defendant in custody ; the time each of the defendants had already spent in custody ; personal data in respect of each of the defendants ; [ and ] the possibility of applying a more lenient preventive measure .", "The [ defendants’ ] detention had been ordered and repeatedly extended in accordance with the rules of criminal procedure .", "LAW provides for the possibility of extending detention during criminal proceedings beyond DATE in cases concerning serious or particularly serious criminal offences , each time for no longer than DATE .", "It follows from the case - file material that the factual circumstances which [ were taken into consideration by the courts ] when [ applying and extending ] the custodial measure had not only remained unchanged , but had been expanded by new and substantial circumstances , which , taken together , are evaluated by the court as sufficient ... grounds for maintaining the custodial measure .", "The risk existing at the current stage of the proceedings of the GPE absconding is a sufficient ground for [ further ] deprivation of [ their ] liberty , notwithstanding the lengthy term of their pre - trial detention . Besides , the extension of detention in respect of those charged with banditry is justified by the necessity to protect the rights and interests of victims and witnesses , as well as [ the necessity to protect ] the public interest , which , in spite of [ the GPE ] presumption of innocence , outweighs respect for individual liberty . ... ”", "On DATE ORG upheld the above decision on appeal .", "On DATE ORG extended the applicant ’s and CARDINAL other co - defendants’ detention for DATE , until DATE inclusive . The court applied the same reasoning as in its extension order of DATE . In addition , the court took into account that the members of the criminal group of which the applicant was allegedly a member helped each other whenever criminal proceedings were instituted against either of them , so that the member would escape punishment or receive a less severe one . The court specifically referred to CARDINAL examples of such behaviour by members of the criminal group in question .", "On DATE ORG upheld the above decision on appeal .", "On DATE , DATE and DATE ORG extended the applicant ’s and CARDINAL other co - defendants’ detention each time for DATE , until DATE and CARDINAL DATE and CARDINAL DATE respectively . The court adopted the same reasoning as in its previous extension orders and addressed new arguments raised by some of the defendants ( not the applicant ) .", "On DATE , DATE and CARDINAL DATE respectively ORG upheld the above extension orders on appeal .", "On DATE ORG extended the applicant ’s and his CARDINAL co - defendants’ detention during judicial proceedings for DATE , until DATE . The court added to its previous reasoning the fact that during the trial some of the witnesses and the victims had changed their statements in so far as they concerned the applicant and CARDINAL other co - defendants . The court further referred to the large volume of case material and evidence , involving multiple episodes and numerous participants .", "On DATE , DATE , CARDINAL DATE and DATE ORG further extended the applicant ’s and his CARDINAL ORG detention during judicial proceedings , each time for DATE , until DATE and CARDINAL DATE and DATE and CARDINAL DATE respectively . The court applied the same line of reasoning as in its previous extension orders . The extension order of CARDINAL DATE further addressed the GPE argument that the length of their detention during judicial proceedings was excessive :", "“ The defendant ’s argument , that their detention during judicial proceedings has been excessively long , is disproved by the trial itself . The multi - episode criminal case with a large number of participants has been being examined [ by the court ] on the merits since DATE ; hearings are only adjourned at the request of the defence or when defence counsel are unable to attend ; there are no unjustified interruptions in the proceedings . The court has repeatedly applied ... measures to all the defendants detained during judicial proceedings ... for breaches of court orders and [ manifest actions aimed at ] delaying the proceedings . The legal and factual complexity of the case , the conduct of the defendants ... and the organisational measures being taken by the court show [ that the trial is being carried out in compliance with the reasonable time requirement ] . ”", "On DATE ORG convicted the applicant of banditry , aggravated murder , robbery , extortion , fraud and pressurising others to complete deals , and sentenced him to CARDINAL years’ imprisonment . The judgment ran to CARDINAL pages .", "On DATE ORG of GPE upheld the above judgment on appeal .", "Article CARDINAL of the LAW provides that everyone shall have the right to freedom and inviolability of person . It further provides that arrest , detention and remand in custody shall be allowed only by a court decision .", "The police may arrest a person suspected of committing an offence punishable by imprisonment if the person is caught in the act of committing an offence or immediately after committing it . No judicial authority is required for the arrest ( LAW ) .", "Within TIME of the time of the arrest a suspect must be released if a preventive measure in the form of remand in custody has not been imposed on the person or a final decision has not been deferred by a court . When remand in custody is deemed necessary , an application must be lodged to that effect with a district court by a prosecutor or by an investigator with the consent of a prosecutor ( LAW ) .", "“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention ( Article CARDINAL ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( обязательство о явке ) ( Article CARDINAL ) .", "When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend or obstruct 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 “ pending investigation ” . The maximum permitted period of detention “ pending investigation ” must not exceed DATE . It may subsequently be extended DATE ( LAW ) .", "Further extensions to DATE are possible only in relation to persons accused of serious or particularly serious criminal offences , in view of the complexity of the case and if there are grounds justifying detention . An investigator ’s request for extension must be approved by ORG ( Article CARDINAL § CARDINAL ) .", "An extension of detention beyond DATE and DATE may be authorised only in exceptional circumstances in respect of persons accused of particularly serious offences , upon an investigator ’s request approved by ORG or his Deputy ( Article CARDINAL § CARDINAL ) .", "Extension of detention beyond DATE is prohibited and the detainee must be released immediately , unless the prosecution ’s request for an extension for the purpose of studying the case has been granted by a court in accordance with LAW of the CCrP ( LAW ) .", "Upon completion of the investigation , the detainee must be given access to the case file DATE before the expiry of the maximum period of detention indicated in DATE ( Article CARDINAL § CARDINAL ) .", "NORP If access is granted on DATE the detainee must be released after the expiry of the maximum period of detention ( LAW ) .", "If access is granted DATE before the expiry of the maximum period of detention but the DATE period proves insufficient to read the entire case file , the investigator may request the court to extend the period of detention . The request must be submitted DATE before the expiry of the detention period . If several defendants are involved in the proceedings and the DATE period is insufficient for CARDINAL of them to read the entire case file , the investigator may request the court to extend the period of detention in respect of those defendants who have finished reading the case file , provided that the need for a custodial measure for them persists and that there are no grounds for choosing another preventive measure ( LAW ) .", "Within DATE of receipt of a request for an extension , the judge must decide whether to grant it or reject it and release the detainee . If the extension is granted the period of detention is extended until such time as will be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court ( Article CARDINAL § CARDINAL) .", "From the date the prosecutor forwards the case to the trial court , the defendant ’s detention is “ before the court ” ( or “ during judicial proceedings ” ) . The period of detention “ during judicial proceedings ” 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 ) .", "A decision to open a criminal case against an advocate is taken by a prosecutor with prior approval by a district judge ( Article CARDINAL § CARDINAL ) .", "Advocates are not immune from arrest ( Article CARDINAL ) .", "Prior to institution of criminal proceedings against an advocate investigative actions are carried out following approval by a district judge ( LAW ) .", "Examining the compatibility of LAW ( now replaced by LAW ORG , the sole difference between ORG being that LAW , in contrast to the new LAW , imposed a DATE limitation on the maximum period of detention for the purpose of studying the case file with the LAW , on DATE ORG ruled as follows :", "“ ... affording the defendant sufficient time for studying the file must not result in ... his being detained indefinitely . Indefinite detention would amount to punishment of the defendant for exercising his procedural rights and thereby inducing him to waive those rights ... ”", "On DATE ORG issued a further clarification of its position ( decision no . CARDINAL-O ) , finding as follows :", "“ CARDINAL . ... the studying of the file [ by the defendant and his counsel ] is a necessary condition for extending the term of detention [ beyond DATE ] but it may not be , taken on its own as a sufficient ground for granting such an extension ... For that reason , in each case the prosecutor ’s application for extending the period of detention beyond DATE ( LAW , CARDINAL of the RSFSR CCrP ) must refer not to the fact that the defendant and his counsel continue to study the file ... but rather to factual information demonstrating that this preventive measure can not be revoked and the legal grounds for its continued application remain ...", "... LAW RSFSR CCrP expressly provides that , on an application by a prosecutor , a judge may extend a defendant ’s detention until such time as the defendant and his counsel have finished studying the file and the prosecutor has submitted it to the [ trial ] court , but by no longer than DATE . Accordingly , the law does not provide for the lodging of repeated applications for extension of the defendant ’s detention , even after an additional investigation [ has been carried out ] ... In the absence of an express legal provision for repeated extensions of detention on that ground , any other interpretation of [ LAW ] would breach the prohibition on arbitrary detention within the meaning of ORG decision of CARDINAL DATE . ”", "By its decision no . CARDINAL of DATE ORG declined to examine a complaint by a PERSON . , in which he challenged the compatibility with LAW CARDINAL § CARDINAL of the Code of Criminal Procedure , in so far as it allowed the extension of detention pending investigation beyond the maximum time - limit and indefinitely while the defendant finished reading the material in the case file . ORG held that such an extension was only possible if there still existed “ sufficient grounds to believe ” that the accused might abscond during the investigation or trial , reoffend or otherwise obstruct the establishment of the truth , as provided by LAW . In so far as the challenged provision did not set a specific time - limit for holding the defendant in custody while he studied the case file , ORG considered that it allowed for the possibility of determining such a time - limit for each particular case , depending on its specific features , on condition that the grounds for detention established in LAW had been sufficiently confirmed . The court concluded that the challenged provision could not be interpreted as providing for superfluous or unlimited detention . Neither did it deprive the defendant and his counsel of the right to challenge before a higher court the lawfulness and validity of the extension order , as well as to make an application for lifting or altering the custodial measure .", "By decision no . CARDINAL of DATE , ORG confirmed its position , by reference to above - cited decision no . CARDINAL-O , that in the absence of an express provision to that effect , time - limits during a pre - trial investigation may not be repeatedly extended , particularly on the same grounds , in excess of the maximum time - limit set out in the CCrP.", "By its decision no . CARDINAL - O of DATE , ORG declined to examine a similar complaint by a Mr NORP With reference to its previous decisions of CARDINAL DATE , CARDINAL DATE and DATE , ORG held that even though Article CARDINAL § CARDINAL did not define the maximum period within which an extension could be granted for the purpose of studying the case file , it did not imply the possibility of excessive or unlimited detention because , in granting an extension , the court should not rely solely on a well - founded suspicion that the defendant had committed the offence , but should mainly base its decision on specific circumstances justifying the continued detention , such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending , as well as the importance of the subject matter of the proceedings , the complexity of the case , the conduct of the defendant and other relevant factors .", "DATE . In its decision no . CARDINAL of CARDINAL DATE “ On the ORG by ORG in ORG in Custody , Bail and ORG Arrest ” the Plenum of ORG held as follows :", "“ CARDINAL . [ ... ] Pursuant to LAW , following a request by an investigator the court may extend an accused ’s detention until such time as he and his defence counsel have finished studying the case file and the prosecutor has submitted it to the [ trial ] court , if upon completion of the pre - trial investigation the accused has been given access to the case file DATE before the expiry of the maximum period of detention indicated in LAW and CARDINAL [ CARDINAL , DATE ] . In that case the relevant extension order should indicate the exact period for which the extension is made . ”" ]

[ "5" ]

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

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[ "5" ]

[ "5-1" ]

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[ "The applicant , Mr ORG , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Mr V. Hajduk , a lawyer practising in PERSON .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE the applicant ’s neighbour , together with his wife and son , entered the applicant ’s courtyard against the applicant ’s will . They had an altercation with the applicant in the course of which both the applicant and the neighbour ’s wife were injured .", "The applicant was examined by doctors . The medical certificates indicate that the applicant ’s eye was injured and that he had facial bruising . The applicant was unable to work for DATE . Subsequently , the doctors established that the applicant ’s ear had been seriously damaged . According to the applicant , this was due to the injury which he suffered on DATE .", "On DATE the applicant filed a criminal complaint with the police department in GPE in which he complained that he had been wounded and that his right to respect for his home had been violated . On DATE the police concluded that the neighbours had not committed a criminal offence . The case was submitted to ORG with a view to establishing whether the actions complained of constituted minor offences falling under LAW .", "Subsequently , ORG instructed the police to investigate whether or not an offence had been committed in the context of the above altercation between the applicant and his neighbours . On DATE ORG stayed the proceedings pending the outcome of the investigation . It appears that criminal proceedings were brought against the applicant on the ground that he had injured the neighbour ’s wife . The criminal proceedings are still pending .", "On DATE ORG discontinued the proceedings under LAW . It found that DATE had lapsed from the date on which the alleged minor offences had been committed and that the liability of the persons concerned had lapsed .", "On DATE a public prosecutor of ORG in PERSON informed the applicant that he had found no shortcomings in the way in which his criminal complaint had been investigated .", "On DATE ORG dismissed the applicant ’s complaint that the police and public prosecutors had failed to investigate properly the incident of DATE . The letter stated that the ORG actions could only be qualified as minor offences .", "The Civil Code and the relevant practice", "Under Article CARDINAL(CARDINAL ) , owners of property are entitled to protection against persons who interfere with their property rights .", "In accordance with the relevant case - law , a court shall order a person who interfered , without justification , with the owner ’s rights to abstain from such interference . A claim under LAW may be successfully lodged even in cases where the interference consisted of a single action which remained without consequences if it can not be excluded that the action would be repeated in the future ( ORG and Opinions , CARDINAL . CARDINAL and CARDINAL ) .", "The Criminal Code", "Under Article CARDINAL , a person who commits an assault in that he or she deliberately damages the health of another person shall be punished by a fine or by a prison sentence up to DATE .", "Pursuant to LAW , a person who deliberately causes serious damage to another person ’s health shall be punished by a prison sentence DATE .", "Article CARDINAL provides that a person who , without justification , enters the domestic premises of another person commits the offence of violation of domestic privacy . Such an offence is punishable , depending on the circumstances , by a fine or by a prison sentence of DATE .", "Regulation No . CARDINAL/CARDINAL", "Regulation No . CARDINAL/CARDINAL , as amended , governs compensation for damage caused to a person ’s health .", "Pursuant to section CARDINAL(CARDINAL ) , adequate compensation shall be awarded in respect of pain resulting from damage to a person ’s health , subsequent medical treatment and the elimination of the effects of damage to health . The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation .", "Sections CARDINAL - CARDINAL govern the payment of compensation for lasting effects of damage to a person ’s health ." ]

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[ "The applicant company is an airline charter company incorporated in GPE in DATE .", "By an agreement dated DATE , the applicant company leased CARDINAL ORG CARDINAL - CARDINAL aircraft from ORG ( JAT ) , the national airline of the former GPE . These were , at all material times , the CARDINAL aircraft operated by the applicant company . The lease agreement was a “ dry lease without crew ” for a period of DATE from the dates of delivery of the QUANTITY aircraft ( DATE and CARDINAL DATE ) . According to the terms of the lease , the crew were to be the applicant company 's employees and the applicant company was to control the destination of the aircraft . While ownership of the aircraft remained with ORG , the applicant company could enter the aircraft on ORG provided it noted ORG 's ownership .", "The applicant company paid a lump sum of MONEY ( ORG ) per aircraft on delivery . The DATE rental was CARDINAL ORG per aircraft . On CARDINAL and CARDINAL DATE the CARDINAL aircraft were registered in GPE as provided for in the lease . On DATE the applicant company obtained its airline licence .", "DATE ORG adopted , and ORG implemented , a series of sanctions against GPE and GPE ) – “ the FRY ” – designed to address the armed conflict and human rights violations taking place there .", "NORP In DATE the applicant company began discussions with TEAM ORG ( “ TEAM ” ) with a view to having maintenance work ( “ C - Check ” ) done on CARDINAL of its leased aircraft . ORG was a limited liability company whose principal business was aircraft maintenance . It was a subsidiary of CARDINAL NORP airline companies wholly owned by ORG . Memoranda dated DATE showed that ORG considered , on the basis of information obtained , that the applicant company was not in breach of the sanctions regime , noting that it was doing business with many companies , including ORG , ORG and ORG ( a NORP aero - engine company ) . By a letter of DATE , ORG requested the opinion of ORG , ORG ( “ ORG ” ) and included copies of its memoranda of DATE . On DATE ORG forwarded the request to ORG .", "On DATE ORG adopted Resolution CARDINAL ( DATE ) , which provided that GPE should impound , inter alia , all aircraft in their territories “ in which a majority or controlling interest is held by a person or undertaking in or operating from the [ FRY ] ” . That resolution was implemented by Regulation ( ORG ) no . CARDINAL/CARDINAL , which came into force on DATE ( see paragraph CARDINAL below ) .", "On DATE ORG decided to refer the matter to ORG .", "By a letter of CARDINAL DATE , ORG indicated to ORG that it considered that the leased aircraft were not in breach of the sanctions regime and requested flight clearance pending ORG decision . On DATE GPE sought the opinion of ORG .", "On DATE CARDINAL of the applicant company 's leased aircraft arrived in GPE . A contract with ORG was signed for the completion of C - Check .", "On DATE ORG to ORG indicated by facsimile to ORG that informal advice from the Secretary to ORG was to the effect that there was no problem with ORG carrying out the work , but that an “ informal opinion ” from the “ legal people in the ORG ” had been requested . On DATE ORG explained this to TEAM by telephone .", "On DATE ORG confirmed to ORG that the “ informal legal advice ” obtained from the “ ORG legal office ” was to the effect that ORG should seek the “ guidance and approval ” of ORG before signing any contract with the applicant company . It was recommended that ORG submit an application to the ORG with relevant transaction details ; if the applicant company was to pay for the maintenance , it was unlikely that the ORG would have a problem with the transaction . On DATE ORG received a copy of that facsimile and sent a copy to ORG , who were also informed by telephone . By a letter dated DATE , ORG provided ORG with the required details and requested the latter 's “ guidance and approval ” .", "On DATE the ORG disagreed with the NORP government 's view that the aircraft could continue to operate , referring to LAW ( DATE ) of ORG . ORG to the United Nations was informed of that opinion by a letter dated DATE .", "At TIME on CARDINAL DATE the applicant company was informed by ORG that C - Check had been completed and that , on payment of CARDINAL , the aircraft would be released . DATE payment was received and the aircraft was released . While awaiting air traffic control clearance to take off , the aircraft was stopped . In his report , the duty manager of FAC noted that ORG had informed him that it had been advised by ORG that it would be “ in breach of sanctions ” for the aircraft to leave . He also stated that the aircraft had been scheduled to depart during that shift and that the airport police had been advised . TEAM informed the applicant company accordingly . ORG later confirmed by a letter ( of DATE ) its instructions of CARDINAL DATE :", "“ ... [ TEAM ] were advised by ORG that , in the circumstances , ORG should not release the [ aircraft ] ... Furthermore , it was pointed out that if TEAM were to release the aircraft TEAM itself might be in serious breach of the ORG resolutions ( as implemented by ORG ( ORG ) no . CARDINAL/CARDINAL ) ... and the matter was under investigation . At the same time directions were given to ORG , whose clearance is necessary for departure of aircraft , not to clear this aircraft for take - off . ”", "NORP By letters dated CARDINAL DATE to the applicant company , ORG noted that it was waiting for the opinion of ORG and that it had been advised by the authorities that release of the aircraft before receipt of that opinion would be in violation of the ORG sanctions regime .", "By a memorandum dated CARDINAL DATE , the NORP embassy in GPE requested the release of the detained aircraft to GPE , given the latter 's commitment to the sanctions regime", "By a letter dated DATE , ORG informed ORG that the maintenance work had in fact already been carried out , that the government regretted the failure to abide by the procedure it had initiated and that the matter had been taken up with ORG . The aircraft was being detained pending the ORG 's decision .", "On DATE the NORP government learned of ORG reply to the NORP government and that the chairman of ORG had indicated that it would be likely to favour impounding . ORG would not meet until DATE .", "On DATE ORG with GPE ( GPE and GPE ) ) Regulations DATE ( ORG no . CARDINAL of DATE ) were adopted . By a letter dated DATE , the Minister for ORG ) informed the FAC managers that he had authorised the impounding , until further notice , of the aircraft pursuant to that statutory instrument .", "Shortly afterwards the applicant company 's second aircraft was grounded in GPE , although the parties disagreed as to precisely why .", "By a letter of DATE , ORG informed ORG findings of its meeting of DATE :", "“ ... the provision of any services to an aircraft owned by an undertaking in the [ FRY ] , except those specifically authorised in advance by ORG ... , would not be in conformity with the requirements of the relevant ORG resolutions . The members of ORG also recalled the provisions of paragraph CARDINAL of [ Resolution CARDINAL ( DATE ) of ORG ] regarding such aircraft , under which the aircraft in question should have already been impounded by the NORP authorities . ORG , therefore , would be extremely grateful for being apprised of any action on behalf of Your Excellency 's Government to that effect . ”", "By a letter dated DATE , ORG informed ORG that the aircraft had been detained on CARDINAL DATE and formally impounded on DATE .", "In a letter of DATE to ORG , the applicant company challenged the impoundment , arguing that the purpose of Regulation ( ORG ) no . CARDINAL/CARDINAL was not to deal simply with legal ownership , but rather with operational control . On DATE the ORG replied :", "“ The Minister is advised that the intention and effect of the ORG resolution as implemented through [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] is to impose sanctions by impounding the types of commercial asset mentioned in DATE , including aircraft , in any case where a person or undertaking in or operating from the [ FRY ] has any ownership interest of the kind mentioned . As this view of the scope and effect of the original resolution has been confirmed by ORG ] , the Minister does not feel entitled to apply [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] in a manner which would depart from that approach . ... the aircraft must remain impounded . ... the Minister appreciates the difficulty that [ the applicant company ] finds itself in and would be anxious to find any solution that was available to him under [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] which would permit the release of the aircraft . ”", "By a letter dated DATE , the NORP embassy in GPE repeated its request for the release of the aircraft , stating that the NORP government would ensure impoundment in accordance with the sanctions . The NORP government indicated to ORG , by a letter of DATE , that it would be favourably disposed to grant that request . On CARDINAL August DATE ORG ruled that the aircraft had to remain in GPE , since the relevant resolutions required ORG to withhold all services from the aircraft , including services that would enable it to fly .", "In DATE the applicant company applied for leave to seek judicial review of the Minister 's decision to impound the aircraft . Amended grounds were later lodged taking issue with ORG 's role in the impoundment . On DATE the High Court struck out TEAM as a respondent in the proceedings , the applicant company 's dispute with ORG being a private - law matter .", "On DATE the applicant company 's managing director explained in evidence that rental payments due to ORG had been set off against the deposits initially paid to ORG and that future rental payments were to be paid into a blocked bank account supervised by ORG .", "On DATE Mr Justice PERSON delivered the judgment of ORG . The issue before him could , he believed , be simply defined as the question of whether ORG was bound by LAW ( ORG ) no . CARDINAL/CARDINAL to impound the applicant company 's aircraft . He considered ORG letter of DATE to the applicant company to be the most helpful explanation of the Minister 's reasoning . He found that :", "“ ... it is common case that the transaction between ORG and [ the applicant company ] was entirely bona fide . There is no question of ORG having any interest direct or indirect in [ the applicant company ] or in the management , supervision or direction of the business of that company . ...", "It is , however , common case that [ resolutions of ORG ] do not form part of NORP domestic law and , accordingly , would not of themselves justify the Minister in impounding the aircraft . The real significance of the [ resolutions of ORG ] , in so far as they relate to the present proceedings , is that [ Resolution CARDINAL ( DATE ) of ORG ] ... provided the genesis for DATE Regulation ( ORG ) no . CARDINAL/CARDINAL ] . ... ”", "In interpreting Regulation ( ORG ) no . CARDINAL , Mr Justice PERSON had regard to its purpose . He found the aircraft not to be one to which Article CARDINAL applied , as it was not an aircraft in which a majority or controlling interest was held by a person or undertaking in or operating from the former NORP , and that the decision of the Minister to impound was therefore ultra vires . However , the aircraft was , at that stage , the subject of an injunction obtained ( in DATE ) by a creditor of ORG ( ORG ) preventing it from leaving the country . That injunction was later discharged on DATE .", "Having indicated to the applicant company that the Minister for Transport was investigating a further impoundment based on Article CARDINAL.CARDINAL(e ) of Regulation ( ORG ) no . CARDINAL/CARDINAL , ORG informed the applicant company by a letter of CARDINAL DATE of the following :", "“ The Minister has now considered the continuing position of the aircraft in the light of the recent ruling of ORG and the provisions of LAW referred to .", "Arising out of the Minister 's consideration , I am now directed to inform you that the Minister has ... directed that the aircraft ... be detained pursuant to LAW ( ORG ) no . CARDINAL/CARDINAL ] as an aircraft which is suspected of having violated the provisions of that regulation and particularly LAW and [ Regulation ( ORG ) no . ] CARDINAL . The aircraft will remain detained pending completion of the Minister 's investigation of the suspected violation as required under LAW [ ( ORG ) no . ] CARDINAL/CARDINAL . ”", "Although not noted in that letter , the Minister 's concern related to the applicant company 's setting off of ORG 's financial obligations ( certain insurance , maintenance and other liabilities ) under the lease against the rental monies already paid by it into the blocked bank account .", "On DATE ORG adopted Resolution CARDINAL ( DATE ) . Although it temporarily suspended the sanctions as peace negotiations had begun , it did not apply to aircraft already impounded . It was implemented by Regulation ( ORG ) no . CARDINAL on DATE .", "In DATE the applicant company was given leave to apply for judicial review of the Minister 's decision to re - impound the aircraft . By a judgment of DATE , the High Court quashed the Minister 's decision to redetain the aircraft . It noted that almost all of the monies which had been paid into the blocked account by the applicant company had by then been used up ( with the consent of the holding bank in GPE ) in order to discharge ORG 's liabilities under the lease . The crucial question before ORG was the Minister 's delay in raising LAW ( ORG ) no . CARDINAL/CARDINAL given that the applicant company was an “ innocent ” party suffering heavy DATE losses . ORG found that the Minister had failed in his duty to investigate and decide such matters within a reasonable period of time , to conduct the investigations in accordance with fair procedures and to have proper regard for the rights of the applicant company .", "On DATE the NORP government appealed to ORG and applied for a stay on ORG order . On DATE ORG refused the Minister 's application for a stay . The overriding consideration in deciding to grant the stay or not was to find a balance which did not deny justice to either party . Noting the significant delay of the Minister in raising Article CARDINAL ) and the potentially minor damage to the ORG ( monies owed for the maintenance and parking in FAC ) compared to the applicant company 's huge losses , the justice of the case was overwhelmingly in the latter 's favour .", "The aircraft was therefore free to leave . By letters dated CARDINAL and DATE , the applicant company , ORG and ORG were informed that the Minister considered that he no longer had any legal responsibility for the aircraft .", "On DATE the Minister for Transport lodged an appeal in ORG against the High Court judgment of DATE . He took issue with ORG interpretation of Regulation ( ORG ) no . CARDINAL/CARDINAL and requested a preliminary reference to the ECJ ( Article CARDINAL , now Article CARDINAL , of the LAW establishing ORG – “ the LAW ” ) .", "By an order dated CARDINAL DATE , ORG referred the following question to the ECJ and adjourned the proceedings before it :", "“ Is LAW ( ORG ) no . CARDINAL/CARDINAL ] to be construed as applying to an aircraft which is owned by an undertaking the majority or controlling interest in which is held by [ the FRY ] where such aircraft has been leased by the owner for a term of DATE from DATE to an undertaking the majority or controlling interest in which is not held by a person or undertaking in or operating from the said [ FRY ] ? ”", "The parties made submissions to the ECJ . The applicant company noted that it was ironic that , following LAW ( DATE ) of ORG , ORG aircraft could fly whereas its own remained grounded .", "On DATE Advocate General PERSON delivered his opinion . Given the majority interest of ORG in the aircraft , LAW ( ORG ) no . CARDINAL/CARDINAL applied to it . The Advocate General disagreed with ORG , considering that neither the aims nor the texts of the relevant resolutions of ORG provided any reason to depart from what he considered to be the clear wording of LAW ( ORG ) no . CARDINAL/CARDINAL .", "As to the question of the respect shown in that regulation for fundamental rights and proportionality , the Advocate General pointed out :", "“ It is well established that respect for fundamental rights forms part of the general principles of Community law , and that in ensuring respect for such rights , the [ ECJ ] takes account of the constitutional traditions of ORG and of international agreements , notably [ the Convention ] , which has a special significance in that respect .", "Article ORG ) of the Treaty on NORP Union ... gives LAW expression to the [ ECJ 's ] case - law . ... In relation to LAW , it confirms and consolidates the [ ECJ 's ] case - law underlining the paramount importance of respect for fundamental rights .", "Respect for fundamental rights is thus a condition of the lawfulness of ORG acts – in this case , the ORG . Fundamental rights must also , of course , be respected by Member GPE when they implement Community measures . All Member GPE are in any event parties to the [ Convention ] , even though it does not have the status of domestic law in all of them . Although the ORG itself is not a party to the ORG , and can not become a party without amendment both of the LAW and of the LAW , and although the LAW may not be formally binding upon the ORG , nevertheless for practical purposes the LAW can be regarded as part of Community law and can be invoked as such both in the [ ECJ ] and in national courts where Community law is in issue . That is so particularly where , as in this case , it is the implementation of Community law by Member PERSON which is in issue . Community law can not release Member GPE from their obligations under the LAW . ”", "The Advocate General noted that the applicant company had relied on the right to peaceful enjoyment of property , protected by the ORG , and the right to pursue a commercial activity , recognised as a fundamental right by the ECJ . Having considered PERSON and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) , he defined the essential question as being whether the interference with the applicant company 's possession of the aircraft was a proportionate measure in the light of the aims of general interest Regulation ( ORG ) no . CARDINAL/CARDINAL sought to achieve . He had regard to the application of this test in ORG v. GPE ( judgment of DATE , Series A no . CARDINAL ) and ORG v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL-A ) and to a “ similar approach ” adopted by the ECJ in cases concerning the right to property or the right to pursue a commercial activity ( including PERSON v. PERSON , Case DATE ] ORG Reports ( ECR ) CARDINAL , § § DATE ) .", "While there had been a severe interference with the applicant company 's interest in the lease , it was difficult to identify a stronger type of public interest than that of stopping a devastating civil war . While some property loss was inevitable for any sanctions to be effective , if it were demonstrated that the interference in question was wholly unreasonable in the light of the aims sought to be achieved , then the ECJ would intervene . However , the Advocate General felt that neither the initial decision to impound nor the continued retention of the aircraft could be regarded as unreasonable .", "Whether or not the financial impact of the sanctions were as outlined by the applicant company , a general measure of the kind in question could not be set aside simply because of the financial consequences the measure might have in a particular case . Given the strength of the public interest involved , the proportionality principle would not be infringed by any such losses .", "The Advocate General concluded that the contested decision did not", "“ ... strike an unfair balance between the demands of the general interest and the requirements of the protection of the individual 's fundamental rights . That conclusion seems consistent with the case - law of [ this ORG ] in general . Nor has [ the applicant company ] suggested that there is any case - law under [ the LAW ] supporting its own conclusion .", "The position seems to be no different if CARDINAL refers to the fundamental rights as they result from ' the constitutional traditions common to the Member GPE ' referred to in the case - law of [ the ECJ ] and in Article ORG ) of the Treaty on ORG . In the [ above - cited PERSON case , the ECJ ] pointed out ... , referring specifically to ORG , LAW and LAW , that the constitutional rules and practices of the Member GPE permit the legislature to control the use of private property in accordance with the general interest . Again it has not been suggested that there is any case - law supporting the view that the contested decision infringed fundamental rights . The decision of ORG was based , as we have seen , on different grounds . ”", "By a letter of DATE , TEAM informed ORG that the aircraft was free to leave provided that debts owed to ORG were discharged .", "On DATE the ECJ ruled that Regulation ( ORG ) no . CARDINAL/CARDINAL applied to the type of aircraft referred to in ORG question to it . The ECJ noted that the domestic proceedings showed that the aircraft lease had been entered into “ in complete good faith ” and was not intended to circumvent the sanctions against the FRY .", "It did not accept the applicant company 's first argument that Regulation ( ORG ) no . CARDINAL/CARDINAL did not apply because of the control on a DATE basis of the aircraft by an innocent non - FRY party . Having considered the wording of Regulation ( ORG ) no . CARDINAL/CARDINAL , its context and aims ( including the text and aims of ORG resolutions it implemented ) , it found nothing to support the distinction made by the applicant company . Indeed , the use of DATE operation and control as opposed to ownership as a criterion for applying the regulation would jeopardise the effectiveness of the sanctions .", "The applicant company 's second argument was that the application of Regulation ( ORG ) no . CARDINAL/CARDINAL would infringe its right to peaceful enjoyment of its possessions and its freedom to pursue a commercial activity because it would destroy and obliterate the business of a wholly innocent party when the FRY owners had already been punished by having their bank accounts blocked . The ECJ did not find this persuasive :", "“ It is settled case - law that the fundamental rights invoked by [ the applicant company ] are not absolute and their exercise may be subject to restrictions justified by objectives of general interest pursued by ORG ( see [ the above - cited PERSON case ] ; Case DATE , ORG v. GPE fuer GPE und Forstwirtschaft [ DATE ] ECR CARDINAL ; and Case C-CARDINAL/CARDINAL , GPE v. Council [ DATE ] ECR I-CARDINAL ) .", "Any measure imposing sanctions has , by definition , consequences which affect the right to property and the freedom to pursue a trade or business , thereby causing harm to persons who are in no way responsible for the situation which led to the adoption of the sanctions .", "Moreover , the importance of the aims pursued by the regulation at issue is such as to justify negative consequences , even of a substantial nature , for some operators .", "The provisions of [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] contribute in particular to the implementation at Community level of the sanctions against the [ FRY ] adopted , and later strengthened , by several resolutions of ORG of ORG . ...", "It is in the light of those circumstances that the aim pursued by the sanctions assumes a special importance , which is , in particular , in terms of [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] and more especially the eighth recital in the preamble thereto , to dissuade the [ FRY ] from ' further violating the integrity and security of GPE and to induce NORP party to cooperate in the restoration of peace in this LOC ' .", "As compared with an objective of general interest so fundamental for the international community , which consists in putting an end to the state of war in the region and to the massive violations of human rights and humanitarian international law in GPE , the impounding of the aircraft in question , which is owned by an undertaking based in or operating from the [ FRY ] , can not be regarded as inappropriate or disproportionate . ”", "The answer to ORG question was therefore :", "“ LAW ( ORG ) no . CARDINAL of DATE concerning trade between ORG and the [ FRY ] applies to an aircraft which is owned by an undertaking based in or operating from the [ FRY ] , even though the owner has leased it for DATE to another undertaking , neither based in nor operating from [ the FRY ] and in which no person or undertaking based in or operating from [ the FRY ] has a majority or controlling interest . ”", "On DATE the Minister reinstated the impounding of the aircraft under LAW ( ORG ) no . CARDINAL/CARDINAL .", "By a notice of motion dated DATE , the applicant company applied to ORG for , inter alia , an order determining the action “ in the light of the decision of the [ ECJ ] ” and for an order providing for the costs of ORG and ECJ proceedings . The grounding affidavit of the applicant company of the same date stressed its bona fides , the benefit of having had the ECJ examine the regulation for the first time , the fact that ultimate responsibility for its predicament lay with the FRY authorities and that its operations had been destroyed by the impoundment . It referred to Regulation ( ORG ) no . CARDINAL , noting that it did not allow aircraft already impounded to fly whereas those not previously impounded could do so . Since its aircraft was the only CARDINAL impounded under the sanctions regime , no other lessee could have initiated the action it had in order to clarify the meaning of the relevant regulation .", "On DATE ORG delivered its judgment allowing the appeal of ORG from the order of ORG of DATE . It noted that the sole issue in the case was whether the Minister had been bound by LAW ( ORG ) no . CARDINAL/CARDINAL to impound the aircraft . Having noted the answer of the ECJ , ORG simply stated that it was bound by that decision and the Minister 's appeal was allowed .", "In DATE ORG allowed the appeal from the order of ORG of DATE . Given the intervening rulings of the ECJ and of ORG ( of DATE and DATE , respectively ) , the appeal was moot since , from DATE of the initial order of impoundment , the aircraft had been lawfully detained under LAW ( ORG ) no . CARDINAL/CARDINAL . There was no order as to costs .", "NORP The applicant company 's leases on both aircraft had expired by DATE ( see paragraph CARDINAL above ) . Further to the judgment of ORG of DATE ( see paragraph DATE above ) and given the relaxation of the sanctions regime ( see paragraphs CARDINAL - CARDINAL below ) , PERSON and the Minister for Transport reached an agreement in DATE concerning the latter 's costs . ORG deposited CARDINAL,CARDINAL.CARDINAL NORP pounds into a blocked account in the joint names of the Chief State Solicitor and its solicitors to cover all parking , maintenance , insurance and legal costs of the Minister for Transport associated with the impoundment . On DATE the aircraft was returned to ORG .", "In DATE ORG ( UNSC ) adopted a LAW ( DATE ) ) under LAW of its LAW by which it expressed concern about the conflict in the former GPE and implemented a weapons and military embargo . UNSC Resolution CARDINAL ( DATE ) , adopted in DATE , established a ORG to administer the relevant resolutions of ORG .", "The relevant parts of ORG ( DATE ) , adopted on CARDINAL DATE , provided as follows :", "“ CARDINAL . Decides further that no State shall make available to the authorities in the [ FRY ] or to any commercial , industrial or public utility undertaking in the [ FRY ] , any funds , or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to those authorities or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within the [ FRY ] , except payments exclusively for strictly medical or humanitarian purposes and foodstuffs ;", "...", "Decides that all GPE shall :", "( a ) Deny permission to any aircraft to take off from , land in or overfly their territory if it is destined to land in or has taken off from the territory of the [ FRY ] , unless the particular flight has been approved , for humanitarian or other purposes consistent with the relevant resolutions of the ORG , by the [ ORG ] ;", "( b ) Prohibit , by their nationals or from their territory , the provision of engineering or maintenance servicing of aircraft registered in the [ FRY ] or operated by or on behalf of entities in the [ FRY ] or components for such aircraft , the certification of airworthiness for such aircraft , and the payment of new claims against existing insurance contracts and the provision of new direct insurance for such aircraft ;", "...", "Decides further that all GPE , and the authorities in the [ FRY ] , shall take the necessary measures to ensure that no claim shall lie at the instance of the authorities in the [ FRY ] , or of any person or body in the [ FRY ] , or of any person claiming through or for the benefit of any such person or body , in connection with any contract or other transaction where its performance was affected by reason of the measures imposed by the present resolution and related resolutions ; ”", "The resolution was implemented in ORG by a ORG regulation of DATE ( Regulation ( ORG ) no . CARDINAL ) , which was in turn implemented in GPE by statutory instrument : ORG with ORG and GPE ) Regulations DATE ( ORG no . CARDINAL of DATE ) made it an offence under NORP law from DATE to act in breach of Regulation ( ORG ) no . CARDINAL .", "UNSC Resolution CARDINAL ( DATE ) , adopted in DATE , further tightened the economic sanctions against the FRY . This resolution was implemented by Regulation ( ORG ) no . CARDINAL , adopted in DATE .", "UNSC Resolution CARDINAL ( DATE ) , adopted on DATE , provided , inter alia , as follows :", "“ CARDINAL . Decides that all GPE shall impound all vessels , freight vehicles , rolling stock and aircraft in their territories in which a majority or controlling interest is held by a person or undertaking in or operating from the [ FRY ] and that these vessels , freight vehicles , rolling stock and aircraft may be forfeit to the seizing ORG upon a determination that they have been in violation of resolutions CARDINAL ( DATE ) , CARDINAL ( DATE ) , CARDINAL ( DATE ) or the present resolution ; ”", "This resolution was implemented by Regulation ( ORG ) no . CARDINAL/CARDINAL , which came into force on DATE , once published in ORG ) of DATE ( as specified in LAW ) pursuant to LAW ( now LAW establishing ORG ( “ the LAW ” ) .", "Articles CARDINAL.CARDINAL(e ) and CARDINAL of that regulation provided as follows :", "“ CARDINAL . As from DATE , the following shall be prohibited :", "...", "( e ) the provision of non - financial services to any person or body for purposes of any business carried out in GPE and GPE . ”", "“ All vessels , freight vehicles , rolling stock and aircraft in which a majority or controlling interest is held by a person or undertaking in or operating from the [ FRY ] shall be impounded by the competent authorities of the Member GPE .", "Expenses of impounding vessels , freight vehicles , rolling stock and aircraft may be charged to their owners . ”", "“ All vessels , freight vehicles , rolling stock , aircraft and cargoes suspected of having violated , or being in violation of Regulation ( ORG ) no . CARDINAL or this Regulation shall be detained by the competent authorities of the Member GPE pending investigations . ”", "“ Each Member ORG shall determine the sanctions to be imposed where the provisions of this [ Regulation ] are infringed .", "Where it has been ascertained that vessels , freight vehicles , rolling stock , aircraft and cargoes have violated this Regulation , they may be forfeited to the Member ORG whose competent authorities have impounded or detained them . ”", "On DATE the NORP Minister for ORG adopted ORG with GPE ( GPE and GPE ) ) Regulations DATE ( ORG no . CARDINAL of DATE ) , the relevant part of which provided as follows :", "“ CARDINAL . A person shall not contravene a provision of [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] .", "A person who , on or after DATE , contravenes LAW of these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £ MONEY or to imprisonment for a term not exceeding DATE or to both .", "NORP The Minister for Transport , Energy and Communications shall be the competent authority for the purpose of LAW and CARDINAL of [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] except in so far as the said LAW relates to vessels and the said LAW relates to cargoes .", "( CARDINAL ) The powers conferred on the Minister for Transport , Energy and Communications by ORG CARDINAL and CARDINAL of [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] as the competent authority for the purposes of those ORG may be exercised by –", "( a ) NORP members of ORG ,", "( b ) officers of customs and excise ,", "( c ) FAC of ORG , ...", "( d ) Officers of the Minister for Transport ... duly authorised in writing by the Minister for Transport , Energy and Communications in that behalf .", "...", "( CARDINAL ) A person shall not obstruct or interfere with a person specified in sub - paragraph ( a ) , ( b ) or ( c ) of paragraph ( CARDINAL ) of this Regulation , or a person authorised as aforesaid , in the exercise by him of any power aforesaid .", "( CARDINAL ) A person who , on or after DATE , contravenes sub - paragraph ( CARDINAL ) of this Regulation shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £ MONEY or to imprisonment for a term not exceeding DATE or to both .", "Where an offence under LAW or CARDINAL of these ORG is committed by a body corporate and is proved to have been so committed with the consent , connivance or approval of or to have been attributable to any neglect on the part of any person , being a director , manager , secretary or other officer of the body corporate or a person who was purporting to act in any such capacity , that person as well as the body corporate , shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first - mentioned offence . ”", "UNSC Resolution CARDINAL ( DATE ) , adopted on DATE , provided , inter alia , as follows :", "“ ( i ) the restrictions imposed by paragraph CARDINAL of LAW ( DATE ) , paragraph CARDINAL of Resolution CARDINAL ( DATE ) with regard to aircraft which are not impounded at the date of adoption of this ORG , ...", "shall be suspended for an initial period of DATE from DATE following the receipt ... of a report from the Secretary - General ... ”", "This resolution was implemented by Regulation ( ORG ) no . CARDINAL of DATE , LAW which suspended the operation of LAW ( ORG ) no . CARDINAL/CARDINAL “ with regard to aircraft ... which had not been impounded at DATE ” .", "DATE . The suspension of ORG ) was extended further by periods of DATE on numerous occasions in DATE , and these resolutions were each implemented by Community regulations .", "UNSC Resolution CARDINAL ( DATE ) was suspended indefinitely in DATE by LAW ( DATE ) . It was implemented in ORG ( ORG ) no . CARDINAL of CARDINAL DATE which provided , inter alia , as follows :", "“ CARDINAL . [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] is hereby suspended with regard to the [ FRY ] .", "NORP As long as [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] remains suspended , all assets previously impounded pursuant to that ORG may be released by Member GPE in accordance with the law , provided that any such assets that are subject to any claims , liens , judgments , or encumbrances , or which are the assets of any person , partnership , corporation or other entity found or deemed to be insolvent under the law or the accounting principles prevailing in the relevant Member ORG , shall remain impounded until released in accordance with the applicable law . ”", "UNSC Resolution CARDINAL ( DATE ) was later definitively suspended . That suspension was implemented by Regulation ( ORG ) no . CARDINAL of DATE , the relevant part of which provided as follows :", "“ As long as the Regulations [ inter alia , Regulation ( ORG ) no . CARDINAL/CARDINAL ] remain suspended , all funds and assets previously frozen or impounded pursuant to those ORG may be released by Member LAW in accordance with law , provided that any such funds or assets that are subject to any claims , liens , judgments or encumbrances , ... shall remain frozen or impounded until released in accordance with the applicable law . ”", "On DATE Regulation ( ORG ) no . CARDINAL/CARDINAL repealed , inter alia , Regulation ( ORG ) no . CARDINAL/CARDINAL . On DATE ORG concerning GPE ( GPE and GPE ) and Certain Areas of GPE and GPE ) Regulations CARDINAL ( ORG no . DATE ) repealed ORG no . CARDINAL of DATE .", "This judgment is concerned with the provisions of Community law of the “ first pillar ” of ORG .", "While the founding treaties of ORG did not contain express provisions for the protection of human rights , the ECJ held as early as DATE that fundamental rights were enshrined in the general principles of Community law protected by the ECJ . By DATE the ECJ had confirmed that , in protecting such rights , it was inspired by the constitutional traditions of the member ORG and by the guidelines supplied by international human rights treaties on which the member GPE had collaborated or to which they were signatories . The ORG 's provisions were first explicitly referred to in DATE , and by DATE its special significance amongst international treaties on the protection of human rights had been recognised by the ECJ . Thereafter the ECJ began to refer extensively to LAW provisions ( sometimes where the Community legislation under its consideration had referred to the LAW ) and latterly to this ORG 's jurisprudence , the more recent ECJ judgments not prefacing such Convention references with an explanation of their relevance to Community law .", "In a judgment of DATE , the ECJ was able to describe the role of ORG law in the following terms :", "“ CARDINAL . ... as the ORG has consistently held , fundamental rights form an integral part of the general principles of law , the observance of which it ensures . For that purpose the ORG draws inspiration from the constitutional traditions common to the Member GPE and from the guidelines supplied by international treaties for the protection of human rights on which the Member GPE have collaborated or of which they are signatories ... LAW ] has special significance in that respect ... It follows that ... the ORG can not accept measures which are incompatible with observance of the human rights thus recognised and guaranteed .", "As the ORG has held ... it has no power to examine the compatibility with the [ Convention ] of national rules which do not fall within the scope of Community law . On the other hand , where such rules do fall within the scope of Community law , and reference is made to ORG for a preliminary ruling , it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the ORG ensures and which derive in particular from the [ Convention ] . ”", "NORP This statement has often been repeated by the ECJ , as , notably , in its opinion on accession by ORG , in which it opined , in particular , that respect for human rights was “ a condition of the lawfulness of ORG acts ” .", "DATE . In Kondova , relied on by the applicant company , the ECJ ruled on the refusal by GPE of an establishment request of a NORP national on the basis of a provision in an association agreement between ORG and GPE :", "“ ... Moreover , such measures [ of the NORP immigration authorities ] must be adopted without prejudice to the obligation to respect that national 's fundamental rights , such as the right to respect for his family life and the right to respect for his property , which follow , for the Member ORG concerned , from LAW DATE or from other international instruments to which that ORG may have acceded . ”", "The case - law developments noted above were reflected in certain treaty amendments . In the preamble to LAW of DATE , the Contracting Parties expressed their determination", "“ to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member GPE , in the Convention for the Protection of Human Rights and Fundamental Freedoms ... ” .", "DATE ( formerly LAW of DATE reads as follows :", "“ CARDINAL . The Union is founded on the principles of liberty , democracy , respect for human rights and fundamental freedoms , and the rule of law , principles which are common to the Member GPE .", "NORP The Union shall respect fundamental rights , as guaranteed by LAW signed in GPE on CARDINAL DATE and as they result from the constitutional traditions common to ORG , as general principles of Community law .", "The Union shall respect the national identities of its Member GPE .", "The Union shall provide itself with the means necessary to attain its objectives and carry through its policies . ”", "The Treaty of GPE of DATE required the ECJ , in so far as it had jurisdiction , to apply human rights standards to acts of Community institutions and gave ORG the power to act against a member ORG that had seriously and persistently violated the principles of Article CARDINAL(CARDINAL ) of the LAW , cited above .", "The Charter of Fundamental Rights of ORG , proclaimed in GPE on DATE ( not fully binding ) , states in its preamble that it", "“ reaffirms , with due regard for the powers and tasks of the Community and the ORG and the principle of subsidiarity , the rights as they result , in particular , from the constitutional traditions and international obligations common to GPE , LAW , ORG , LAW , ORG adopted by the ORG and by ORG and the case - law of ORG of ORG and of ORG .", "LAW provides :", "“ In so far as this LAW contains rights which correspond to rights guaranteed by ORG , the meaning and scope of those rights shall be the same as those laid down by LAW . This provision shall not prevent Union law providing more extensive protection . ”", "The LAW establishing a LAW for LOC , signed on DATE ( not in force ) , provides in its Article I-CARDINAL entitled “ LAW ” :", "“ CARDINAL . The Union shall recognise the rights , freedoms and principles set out in FAC which constitutes Part II .", "NORP The Union shall accede to LAW . Such accession shall not affect the ORG 's competences as defined in the LAW .", "Fundamental rights , as guaranteed by LAW and as they result from the constitutional traditions common to LAW , shall constitute general principles of the ORG 's law . ”", "The Charter of Fundamental Rights cited above has been incorporated as Part II of this constitutional treaty .", "DATE LAW ) provides :", "“ Member GPE shall take all appropriate measures , whether general or particular , to ensure fulfilment of the obligations arising out of this LAW or resulting from action taken by the institutions of the Community . They shall facilitate the achievement of the ORG 's tasks .", "They shall abstain from any measure which could jeopardise the attainment of the objectives of LAW . ”", "The relevant part of LAW now LAW as follows :", "“ A regulation shall have general application . It shall be binding in its entirety and directly applicable in all Member GPE . ... ”", "The description of a regulation as being “ binding in its entirety ” and “ directly applicable ” in all member GPE means that it takes effect in the internal legal orders of member GPE without the need for domestic implementation .", "Article CARDINAL ( now Article CARDINAL ) reads as follows :", "“ The rights and obligations arising from agreements concluded before DATE or , for acceding GPE , before the date of their accession , CARDINAL hand , and CARDINAL countries on the other , shall not be affected by the provisions of this Treaty .", "To the extent that such agreements are not compatible with LAW , the Member ORG or GPE concerned shall take all appropriate steps to eliminate the incompatibilities established . Member GPE shall , where necessary , assist each other to this end and shall , where appropriate , adopt a common attitude .", "In applying the agreements referred to in the first paragraph , Member GPE shall take into account the fact that the advantages accorded under LAW by each Member ORG form an integral part of the establishment of the ORG and are thereby inseparably linked with the creation of common institutions , the conferring of powers upon them and the granting of the same advantages by all the other Member GPE . ”", "As regards the control exercised by the ECJ and national courts , the ECJ has stated as follows :", "“ DATE . Individuals are ... entitled to effective judicial protection of the rights they derive from the ORG legal order , and the right to such protection is CARDINAL of the general principles of law stemming from the constitutional traditions common to GPE . That right has also been enshrined in LAW and CARDINAL of LAW ...", "By LAW and LAW now LAW , on the one hand , and by LAW , on the other , LAW has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions , and has entrusted such review to ORG ... Under that system , where natural or legal persons can not , by reason of the conditions for admissibility laid down in the fourth paragraph of LAW , directly challenge Community measures of general application , they are able , depending on the case , either indirectly to plead the invalidity of such acts before ORG under LAW or to do so before the national courts and ask them , since they have no jurisdiction themselves to declare those measures invalid ... , to make a reference to ORG for a preliminary ruling on validity .", "Thus it is for the Member GPE to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection .", "In that context , in accordance with the principle of sincere cooperation laid down in LAW , national courts are required , so far as possible , to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application , by pleading the invalidity of such an act . ”", "Article CARDINAL ( now LAW , ORG , ORG with a right to apply to the ECJ for judicial review of a Community act ( “ annulment action ” ) . Applications from ORG and ORG are more restricted and , while subject to even greater restrictions , an individual ( a natural or legal person ) can also challenge “ a decision addressed to that person or ... a decision which , although in the form of a regulation or a decision addressed to another person , is of direct and individual concern to the former ” ( Article CARDINAL(CARDINAL ) , now Article CARDINAL(CARDINAL ) ) .", "According to LAW now LAW member PERSON and the Community institutions can also call , among others , ORG and ORG to account before the ECJ for a failure to perform their LAW obligations . LAW now LAW allows a plea of illegality of a regulation ( adopted jointly by ORG and the ORG , by the ORG , by the ORG or by ORG ) to be made during proceedings already pending before the ECJ on the basis of another Article : a successful challenge will result in the ECJ declaring its inapplicability inter partes , but not the annulment of the relevant provision .", "Having legal personality of its own , ORG can be sued for damages in tort , described as its non - contractual liability . Its institutions will be considered liable for wrongful ( illegal or invalid ) acts or omissions by the institution ( fautes de service ) or its servants ( fautes personnelles ) which have caused damage to the claimant ( Articles CARDINAL and CARDINAL , now Articles CARDINAL and FAC ) . Unlike actions under Articles CARDINAL , CARDINAL and CARDINAL ( now ORG , CARDINAL and CARDINAL ) , and subject to the various inherent limitations imposed by the elements of the action to be established , there are no personal or locus standi limitations on the right to bring such an action . It can therefore provide an independent cause of action before the ECJ to review the legality of an act or failure to act to those ( including individuals ) who do not have locus standi under ORG CARDINAL or CARDINAL but who have suffered damage .", "Under LAW ( now LAW now LAW ) , both the Commission ( in fulfilment of its role as “ guardian of the Treaties ” ) and a member ORG are accorded , notably , the right to take proceedings against a member ORG considered to have failed to fulfil its LAW obligations . If the ECJ finds that a member ORG has so failed , the ORG shall be required to take the necessary measures to comply with the judgment of the ECJ ( Article CARDINAL , now Article CARDINAL ) . The ORG can also take proceedings against a member ORG in other specific areas of ORG regulation ( such as ORG aids – Article CARDINAL , now LAW ) .", "There is no provision in LAW for a direct action before the ECJ against individuals . Individuals may , however , be fined under certain provisions of Community law ; such fines may , in turn , be challenged before the ECJ .", "Where individuals seek to assert their Community rights before national courts or tribunals , they may do so in the context of any proceedings of national law , public or private , in which Community rights are relevant , in pursuit of any remedy , final or interim , under national law .", "The “ direct effect ” of a provision of Community law means that it confers upon individuals rights and obligations they can rely on before the national courts . A provision with direct effect must not only be applied by the domestic courts , but it will take precedence over conflicting domestic law pursuant to the principle of supremacy of Community law . The conditions for acquiring direct effect are that the provision", "“ contains a clear and unconditional prohibition which is not a positive but a negative obligation . This obligation , moreover , is not qualified by any reservation on the part of the GPE which would make its implementation conditional upon a positive legislative measure enacted under national law . The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between ORG and their subjects ” .", "Certain EC Treaty provisions are considered to have direct effect , whether they impose a negative or positive obligation and certain have been found to have , as well as “ vertical ” effect ( between the ORG and the individual ) , a horizontal effect ( between individuals ) . Given the text of LAW ( now LAW , the provisions of regulations are normally considered to have direct effect , both vertically and horizontally . Directives and decisions can , in certain circumstances , have vertical direct effect , though recommendations and opinions , having no binding force , can not generally be relied on by individuals before national courts .", "The rights an individual may claim under Community law are no longer confined to those under directly effective Community provisions : they now include rights based on the principles of indirect effect and ORG liability developed by the ECJ . According to the principle of “ indirect effect ” ( “ interprétation conforme ” ) , a member ORG 's obligations under LAW now LAW ) require its authorities ( including the judiciary ) to interpret as far as possible national legislation in the light of the wording and purpose of the relevant directive .", "The principle of ORG liability was first developed in PERSON . The ECJ found that , where a ORG had failed to implement a directive ( whether or not directly effective ) , it would be obliged to compensate individuals for resulting damage if CARDINAL conditions were met : the directive conferred a right on individuals ; the content of the right was clear from the provisions of the directive itself ; and there was a causal link between the ORG 's failure to fulfil its obligation and the damage suffered by the person affected . In DATE the ECJ extended the notion of ORG liability to all domestic acts and omissions ( legislative , executive and judicial ) in breach of Community law provided the conditions for liability were fulfilled .", "In order to assist national courts in correctly implementing Community law and maintaining its uniform application , LAW now LAW ) provides national courts with the opportunity to consult the ECJ . In particular , Article CARDINAL reads as follows :", "“ ORG shall have jurisdiction to give preliminary rulings concerning :", "( a ) the interpretation of this LAW ;", "( b ) the validity and interpretation of acts of the institutions of the Community ... ;", "...", "Where such a question is raised before any court or tribunal of a Member ORG , that court or tribunal may , if it considers that a decision on the question is necessary to enable it to give judgment , request ORG to give a ruling thereon .", "Where any such question is raised in a case pending before a court or tribunal of a Member ORG against whose decisions there is no judicial remedy under national law , that court or tribunal shall bring the matter before ORG . ”", "The ECJ described the nature of this preliminary reference procedure as follows :", "“ CARDINAL . ... the procedure provided for by LAW ORG is an instrument of cooperation between ORG and national courts by means of which the former provides the latter with interpretation of such Community law as is necessary for them to give judgment in cases upon which they are called to adjudicate ...", "In the context of that cooperation , it is for the national court seisple , bound to give a ruling ... ”", "Article CARDINAL distinguishes between domestic courts which have a discretion to refer and those courts of last instance for which referral is mandatory . However , according to the ORG judgment , both categories of court must first determine whether an ECJ ruling on the Community law matter is “ necessary to enable it to give judgment ” , even if the literal meaning of Article CARDINAL would suggest otherwise :", "“ It follows from the relationship between the second and the third paragraphs of Article CARDINAL that the courts ... referred to in the third paragraph have the same discretion as any other national court ... to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment . ”", "In ORG the ECJ indicated that a court of final instance would not be obliged to make a reference to the ECJ if : the question of Community law was not relevant ( namely , if the answer to the question of Community law , regardless of what it may be , could in no way affect the outcome of the case ) ; the provision had already been interpreted by the ECJ , even though the questions in issue were not strictly identical ; and the correct application of Community law was so obvious as to leave no scope for reasonable doubt , not only to the national court but also to the courts of the other member PERSON and to the ECJ . This matter was to be assessed in the light of the specific characteristics of Community law , the particular difficulties to which its interpretation gave rise and the risk of divergences in judicial decisions within the Community .", "Once the reference is made , the ECJ will rule on the question put to it and that ruling is binding on the national court . The ECJ has no power to decide the issue before the national court and can not therefore apply the provision of Community law to the facts of the particular case in question . The domestic court will decide on the appropriate remedy .", "DATE , entitled “ General rule of interpretation ” , provides that a treaty shall be interpreted “ in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose ” . LAW further provides that , as well as the context , any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation together with any relevant rules of international law applicable in the relations between the parties shall be taken into account .", "The relevant part of LAW reads as follows :", "“ CARDINAL . Ireland affirms its devotion to the ideal of peace and friendly co - operation amongst nations founded on international justice and morality .", "...", "Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other GPE .", "CARDINAL ...", "CARDINAL No provision of this LAW invalidates laws enacted , acts done or measures adopted by the ORG which are necessitated by the obligations of membership of ORG or of the Communities , or prevents laws enacted , acts done or measures adopted by ORG or by the ORG or by institutions thereof , or by bodies competent under the Treaties establishing the ORG , from having the force of law in the ORG . ”" ]

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[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in the GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE , following proceedings held in absentia , ORG ( arrondissementsrechtbank ) convicted a person , calling himself PERSON , of a robbery committed on DATE , and sentenced him to DATE imprisonment less the time spent in pre - trial detention .", "At an unspecified date the applicant started a relationship with ORG , who holds both GPE and NORP citizenship and who is the mother of ORG , who was born in DATE from a previous relationship . The father of ORG also holds both GPE and NORP citizenship .", "On DATE , a daughter named PERSON was born of the applicant 's relationship with PERSON .", "On DATE the applicant , who until that moment had resided illegally in the GPE , applied for a residence permit for the purpose of “ staying with his GPE partner , PERSON ” . When , in this connection , the applicant was asked to sign a declaration stating that he had never had any dealings with the GPE police or the GPE criminal justice authorities ( antecedentenverklaring ) , he stated that he had served a prison sentence in the past , but under a false identity .", "Subsequent verifications disclosed that the applicant had been residing illegally in the GPE since DATE and that , in his various contacts with the police , he had not given his true identity and/or had failed to cooperate in establishing his identity . The applicant was in fact known to the GPE authorities under CARDINAL different identities and , under CARDINAL of them , namely PERSON , he had been convicted of robbery and sentenced to DATE imprisonment on DATE .", "On DATE , the immigration authorities informed the applicant of their intention to reject his request on grounds of his conviction in DATE and illegal residency in the GPE .", "On DATE , the Deputy Minister of Justice ( ORG ) rejected the applicant 's request for a residence permit . The Deputy Minister noted that , according to the relevant immigration policy rules , a request for a residence permit for the purpose of staying with a GPE partner could be granted if the alien concerned did not constitute a danger to public peace , public order or national security . Accordingly , admission could be refused on grounds of a criminal conviction for an offence entailing the imposition of an unconditional lengthy prison sentence . As the applicant had been convicted of a criminal offence and sentenced to imprisonment in DATE , his request for a residence permit could be rejected . The Deputy Minister further held that this decision did not constitute an interference with the applicant 's family life with PERSON , as it did not deprive him of any residence title . The Deputy Minister lastly considered that no special facts or circumstances existed which could give rise to any positive obligation upon the GPE authorities under LAW grant the applicant 's request for a residence permit , or which showed that there was an obstacle to the exercise of his family life outside of the GPE . On DATE , the applicant filed an objection ( bezwaar ) against this decision .", "On DATE the applicant and PERSON married and , on DATE , the applicant recognised his daughter PERSON .", "On DATE , the applicant was given the opportunity to make oral comments on his application for a residence permit before an official commission ( ambtelijke commissie ) . On this occasion , he stated inter alia that he had resided in the GPE since DATE , that in DATE he had been arrested , detained and released after DATE , and that owing to his then poor knowledge of NORP he had not understood what had then happened to him . He further stated that he had never been convicted or appeared before a court , and that until recently he had been unaware of his conviction in DATE . He further stated that ORG was expecting their second child , that she was receiving social security benefits on the grounds of an PERCENT incapacity for work , and that she did not wish to go to GPE . ORG , who attended this hearing , stated that since DATE the applicant had had no dealings with the GPE police .", "On DATE , the Deputy Minister of ORG rejected the applicant 's objection of DATE on the basis of the legal rules applicable to aliens seeking admission to the GPE to stay with a GPE non - marital partner . The Deputy Minister considered at the outset that , on grounds of the prison sentence imposed in DATE , the applicant could be declared an undesirable alien ( ongewenst vreemdeling ) under LAW ( Vreemdelingenwet ) . This had not been done at the material time , because the Deputy Minister had been unaware of the fact that the applicant was illegally residing in the GPE . In view of the time that had elapsed since the applicant 's conviction , the Deputy Minister decided , after balancing all the interests involved , not to declare the applicant an undesirable alien . This decision did not , however , imply that the Deputy Minister considered that the applicant no longer posed a danger to public order . The Deputy Minister further considered that , in the relevant immigration rules , the balancing of public order interests and the interests of family reunification / formation had already been made in abstracto , in that a residence permit could be refused to persons , like the applicant , who had been convicted of a serious offence for which they had been sentenced to an unconditional lengthy term of imprisonment . The Deputy Minister found that the applicant 's personal interests did not outweigh those of public order . On this point , the Deputy Minister took into account that the applicant had been illegally residing in the GPE when he developed his family life with PERSON and , later , with their daughter PERSON . The fact that the applicant had not committed any criminal offence since DATE and has responsibility towards his family did not , according to the Deputy Minister , create an obligation to grant him a residence permit .", "On DATE , a second child named PERSON was born to the applicant and PERSON .", "The applicant 's subsequent appeal to ORG of The Hague was accepted on DATE . It held that the Deputy Minister had incorrectly determined the applicant 's request on the basis of the immigration rules for foreign non - martial partners of GPE nationals and that , for this reason alone , the impugned decision should be quashed as the applicant was married to a GPE national .", "It did , however , reject the applicant 's argument that the Deputy Minister had incorrectly found that the applicant had been convicted of a serious offence for which he had been sentenced to an unconditional lengthy prison sentence , within the meaning of the relevant immigration policy rules . It further considered that , although the Deputy Minister had taken this into account in the decision not to declare the applicant an undesirable alien , the Deputy Minister had failed to take into consideration , in balancing the GPE public order interests against the applicant 's personal interests , the time that had elapsed since DATE , and the fact that the applicant had not committed any other offences since then . As the immigration policy rules stipulated that a residence permit “ could ” be rejected on grounds of a criminal conviction , these elements should be taken into account . It did , however , add that , in balancing the interests involved , the Deputy Minister could also take into consideration the fact that , owing to the applicant 's use of aliases and his hiding from the authorities , the prison sentence imposed in DATE had not been executed . It could thus be held against the applicant . The court therefore quashed the decision of DATE and ordered the Deputy Minister to take a new decision on the applicant 's objection .", "On DATE , the Deputy Minister took a fresh negative decision on the basis of the immigration rules for alien spouses of GPE nationals . The Deputy Minister noted that , pursuant to LAW ) , the admission of an alien spouse of a GPE national can be refused in case of a conviction of a serious offence for which an unconditional lengthy prison sentence has been imposed and that , in its decision of DATE , ORG had found that the applicant 's conviction and sentence in DATE qualified as such . The Deputy Minister further observed that , because of this sentence , the applicant could be declared an undesirable alien under LAW . This had not been done at the material time , as the Deputy Minister had been unaware of the applicant 's illegal residence in the GPE . Given the time that had elapsed since the applicant 's conviction , the Deputy Minister decided , after balancing all the interests involved , not to declare the applicant an undesirable alien . This decision did , however , not imply that the Deputy Minister considered that the applicant no longer posed a danger to public order . In this context , the Deputy Minister pointed out that the measure of declaring a person an undesirable alien entailed more serious consequences than a decision to refuse admission on grounds of posing a danger to public order . In the former case , the undesirable alien is not allowed to reside in or enter the GPE for a period of DATE , even for short ( family ) visits . The applicant was thus not subject to that restriction .", "As to the balancing of the interests involved , as required in the context of LAW DATE LAW , the Deputy Minister considered that the offence of which the applicant had been convicted had been committed a considerable time ago , that he had not reoffended since DATE , that in the meantime he had started a relationship with PERSON in the GPE out of which a child had been born in DATE which had been recognised by the applicant in DATE , that the applicant and PERSON had married in DATE , and that the applicant had an interest in exercising his family life with his spouse and their child . The Deputy Minister did not , however , find that on the basis of these interests the applicant should be granted a residence permit . In the establishment of the rules governing the immigration of foreign spouses of GPE nationals , the public order aspects were already balanced in abstracto against the interests of family reunification / formation , whereas in the particular circumstances of the instant case , the applicant had been convicted of a serious offence for which he had been sentenced to a lengthy term of imprisonment , and this offence , which seriously shook the legal order , was such that it could inflict serious emotional harm to the victims thereof . Furthermore , the applicant had not served this sentence , apparently because he had used various aliases and had hidden from the authorities , which also had the result that no decision had been taken to declare him an undesirable alien . As to the applicant 's interests in exercising his family life in the GPE , the Deputy Minister considered that , not having been declared an undesirable alien , the applicant could make short visits to his family in the GPE and that therefore a negative decision on his request for a residence permit did not render the exercise of his family life entirely impossible . In addition , it had not been shown that his spouse could not be expected to follow him to GPE as she is of NORP origin and speaks good LANGUAGE . This was not altered by the fact that PERSON and PERSON are GPE nationals , as it had not been argued and it had not appeared that they would not be admitted to GPE . As to the argument that PERSON had been born and raised in the GPE , the Deputy Minister held that she was very young and that it had not been established that she was so rooted in GPE society that she could not be expected to follow the applicant to GPE .", "In so far as the applicant relied on LAW , the Deputy Minister held that a negative decision on the applicant 's request did not constitute an interference with his rights under this provision as it did not deprive him of any residence permit which had previously enabled him to exercise family life in the GPE . The Deputy Minister further did not find that the GPE authorities were under a positive obligation under LAW to grant the applicant 's request . On this point , the Deputy Minister took into account that the family life on which reliance was placed had developed while the applicant was illegally residing in the GPE , and that no objective obstacles had arisen which prevented the exercise of this family life in GPE . In this respect the Deputy Minister again relied on the arguments outlined in the preceding paragraph , regarding the possibility of the applicant 's wife and child to follow him to GPE and the public danger which the applicant posed to GPE public order . On the basis of these considerations the Deputy Minister concluded that the GPE general interest in pursuing a restrictive immigration policy outweighed the interests of the applicant and his family in exercising their family life in the GPE .", "On DATE the applicant filed an appeal with ORG of The Hague .", "In its judgment of DATE , ORG rejected the applicant 's appeal . In so far as the applicant relied on LAW , ORG held :", "“ It is not disputed that there is family life within the meaning of LAW between the applicant , his spouse and the children . It must be put first that their right to respect for their family life does not entail that [ the GPE authorities ] are thus obliged to admit [ the applicant ] . It is important in this connection that , according to the constant case - law of ORG , the point of departure is that LAW does not contain an obligation for the State to respect an alien 's choice of domicile or to render possible family formation or family reunion on its territory by allowing immigration . As [ the applicant ] has never been allowed to reside in the GPE , no issue of an interference with the right to respect for family life within the meaning of DATE arises in this case . Whether , in the present case , respect for family life nevertheless gives rise to an obligation for [ the GPE authorities ] to allow [ the applicant ] to reside [ in the GPE ] must be determined on the basis of a reasonable balance that must be struck between the interests of the individual and the interests of the community as a whole . ORG is of the opinion that [ the Deputy Minister ] could adopt the position that the interests of GPE , which lies in maintaining public order and a restrictive admission policy , prevails over the interest of [ the applicant ] in being admitted in order to exercise in the GPE family life with his spouse and child . In this finding it has been taken into account that no objective obstacle to the exercise of family life in GPE has appeared . ”", "The admission , residence and expulsion of aliens were regulated at the material time by the DATE LAW and the DATE LAW ; a body of policy directives drawn up and published by ORG .", "In general , the Minister of ORG determined requests lodged by aliens for residence in the GPE under LAW . The Minister could refuse entry and residence on general interest grounds ( gronden aan het algemeen belang ontleend ) .", "In view of the situation in the GPE as regards population size and employment , Government immigration policy DATE as defined in the DATE LAW – was aimed at restricting the number of aliens admitted to the GPE . In general , an application for a residence permit in the GPE was granted only on the basis of treaty obligations , if the individual 's presence would serve an essential national interest or if there were compelling reasons of a humanitarian nature .", "Under LAW , an alien can be declared undesirable by the Minister of Justice when he or she has been convicted of an offence punishable by a prison sentence of DATE or more . A decision declaring a person an undesirable alien shall – upon a request thereto from the person concerned – be lifted after DATE residency abroad where the decision declaring this person an undesirable alien was been taken on grounds of a conviction for serious violent crimes or drug dealing . This period is DATE where the decision was based on a conviction for other crimes .", "The offence of robbery , as defined in LAW ) , attracts a prison sentence not exceeding DATE imprisonment or a heavy fine .", "According to LAW DATE , a child whose father is a NORP national automatically acquires NORP citizenship at birth ." ]

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[ "The applicant , a NORP national , was born in DATE . He is presently serving a prison sentence in GPE .", "On DATE the applicant came to GPE with GPE , a NORP national , and their CARDINAL children , born in DATE and DATE . The applicant and PERSON had been living together since DATE . On DATE they were granted permanent residence permits . In DATE their third child was born in GPE . They separated soon thereafter . All their children have NORP citizenship . On DATE the applicant married another NORP national , GPE", "By a judgment of DATE ORG ( tingsrätten ) of ORG convicted the applicant of a narcotics offence and of attempted smuggling of goods , both offences committed in DATE . The narcotics offence , which was considered as aggravated , involved QUANTITY of cocaine . The applicant was sentenced to DATE in prison . Further , in accordance with LAW , LAW ( Utlänningslagen , CARDINAL ) , the court ordered his expulsion from GPE and issued a DATE prohibition on his return , i.e. until DATE . When fixing the applicant ’s prison sentence , the court had regard to the detriment suffered by him on account of the expulsion . It also noted that he had been convicted for drunken driving and received suspended sentences in DATE and DATE . In deciding to expel the applicant , the court noted that the applicant was unemployed and had a poor command of NORP but nevertheless had strong ties to GPE on account of his children . However , notwithstanding these ties , the seriousness of the crimes constituted special reasons for expelling him .", "The applicant appealed to ORG ( PERSON hovrätt ) . He stated that his wife was pregnant and that he maintained close contacts with his children . On DATE ORG upheld ORG judgment .", "On DATE ORG ( ORG domstolen ) refused the applicant leave to appeal .", "In DATE the applicant ’s and GPE ’s son was born .", "The applicant later requested the Government to exercise its power under LAW , LAW of LAW to annul the expulsion order . The request was rejected on DATE .", "On DATE the applicant divorced GPE They have joint custody of their son . On DATE the applicant married PERSON", "According to a decision of ORG ( ORG ) of CARDINAL DATE , the applicant will be released on probation after having served CARDINAL of his prison sentence on DATE . However , it appears that the applicant has been indicted for tax crimes and has been summoned to appear before ORG on DATE .", "" ]

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[ "The applicants are spouses . They were born in DATE and DATE respectively and live in GPE . The first applicant is a lawyer practising in GPE . He is the President of the law firm PERSON , subsequently renamed PERSON and Partners .", "The applicants are the co - owners of a flat which , at the material time , was used by the first applicant as his office . The deed of ownership was issued in the name of the second applicant .", "In DATE and DATE the first applicant entered into legal services agreements with a company , PERSON Under those agreements PERSON transferred to the first applicant certain documents concerning its commercial activity .", "On DATE the investigator of ORG instituted criminal proceedings against the officials of company PERSON for alleged tax evasion and forgery of documents .", "On DATE the investigator issued a search warrant for PERSON ’s documents in the office of the first applicant . The warrant was approved by the Prosecutor of Kramatorsk . In the reasoning part of the search warrant the investigator noted that it had been established in the course of pre - trial investigation that a number of bookkeeping , tax accounting and other documents had been stored at the first applicant ’s law office .", "The warrant authorised the search and seizure of the following material :", "“ contractual documents , bookkeeping documents , primary and summary accounting documents , tax accounting and other documents which concern the relationships between [ K. ] and [ company NORP ] as regards the delivery of electricity by the latter to the former company in the period from DATE to date ; decisions and other procedural documents issued in the same period by the commercial courts when dealing with disputes between the CARDINAL companies . ”", "On DATE the investigator , the tax police officers , and CARDINAL attesting witnesses arrived at the first applicant ’s office to carry out the search . The first applicant objected to the search . He stated that the flat was private property and , accordingly , any search of it could be carried out only on the basis of a court decision , as required by LAW . He further stated that the documents requested by the investigator had been entrusted to him by PERSON in his capacity as the company ’s lawyer and , by virtue of section CARDINAL of LAW , could not be seized without his consent .", "The investigator ignored the first applicant ’s objections and commenced the search . In the course of the search a number of PERSON ’s documents , including some dated before DATE , were seized .", "The CARDINAL attesting witnesses countersigned the search report compiled by the investigator . The witnesses were born in DATE and at the relevant time were studying at ORG . Subsequently , in the course of “ pre - investigation ” enquiries , the CARDINAL witnesses confirmed that the first applicant repeatedly informed the investigator that the searched LOC were the ORG private property .", "On DATE the seized documents were attached to the criminal case file as material evidence .", "On DATE the decision of DATE instituting criminal proceedings against the officials of company PERSON was quashed as unfounded .", "On DATE and CARDINAL DATE the applicants complained to several ORG offices at various levels about the search of their LOC . They requested that criminal proceedings be instituted against those who had carried out the search .", "On DATE and DATE , DATE , DATE and DATE , DATE and DATE , DATE , DATE and DATE , DATE , DATE , DATE and CARDINAL DATE and CARDINAL DATE the prosecutor ’s offices adopted decisions refusing to open criminal proceedings against the investigator and the police officers involved in the search . According to those decisions there was no indication that criminal offences under ORG CARDINAL , CARDINAL , CARDINAL , and CARDINAL of LAW had been committed . The latest decision specified in particular that at the time of the search the flat had been used as business LOC , while the documents had been seized as evidence in the criminal case and therefore could not be covered by the lawyer - client privilege .", "All those decisions were quashed as unfounded , either by the supervising prosecutor or by the court . In quashing the impugned decisions the supervising authorities relied on the provisions of LAW requiring preliminary court authorisation for the search of an individual ’s LOC and on those of FAC safeguarding the professional secrecy afforded to lawyers .", "NORP In particular , on DATE the ORG of Donetsk , quashing the prosecutor ’s decision of DATE refusing to open criminal proceedings , found that the prosecutor ’s office had failed to take into account the fact that the searched flat was owned by private individuals and that , pursuant to domestic legislation , any search of it could be carried out only on the basis of a court decision . Besides , the materials of the enquiries suggested that the seized documents had been entrusted to the first applicant in the course of his activity as a lawyer and had been covered by lawyer - client privilege . The court therefore concluded that the search and the seizure of documents had been carried out unlawfully . The court remitted the case for additional “ pre - investigation ” enquiries , for the adoption of the proper decision under LAW .", "On DATE ORG upheld that decision of the first - instance court , adding that the investigative authorities had not yet examined whether the investigator had seized documents which had no relevance to the criminal case against the officials of company PERSON", "DATE LAW provides :", "“ Everyone shall be guaranteed the inviolability of his or her dwelling .", "Any entry into , examination of or search in the dwelling or other possession of a person shall not be permitted other than pursuant to a reasoned court decision .", "In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects , the law may provide for a different procedure for entering into , examining or searching in the dwelling or other possession of a person . ”", "Article CARDINAL of the Code provides :", "“ CARDINAL . Unlawful entry into , examination of or searches in a dwelling or other possession of a person , unlawful eviction or any other actions violating the inviolability of a citizen ’s home –", "shall be punishable by a fine of CARDINAL times the amount of the non - taxable minimum - level income or by up to CARDINAL years’ correctional labour , or by a restriction of liberty for DATE .", "NORP The same acts , if committed by officials ... –", "shall be punishable by imprisonment for DATE . ”", "LAW , as worded at the relevant time , provided :", "“ CARDINAL . Abuse of power or office , namely intentional use , for financial gain or with other personal interest or in the interest of third persons , by an official of his / her power or office against the interest of the service , if it has caused serious damage to ORG or public interests or to lawful interests , rights and freedoms of natural or legal persons , –", "shall be punishable by DATE correctional labour or by CARDINAL months’ detention or by a restriction of liberty for DATE , with a prohibition for DATE on the holding of certain posts or the performance of certain activities . ...", "NORP The same acts , if they have caused grave consequences , –", "shall be punishable ...", "Acts as described in DATE or DATE , if committed by law - enforcement officers , –", "shall be punishable by imprisonment of CARDINAL , with a prohibition of DATE on holding certain posts or performing certain activities , and with confiscation of property . ”", "Article CARDINAL § CARDINAL of the Code , as worded at the relevant time , provided :", "“ The exceeding of power or office , namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the ORG or public interest or to the lawful interests , rights and freedoms of natural or legal persons –", "shall be punishable by DATE correctional labour or by restriction of liberty for DATE , or by imprisonment for DATE , with a prohibition for DATE on the holding of certain posts or the performance of certain activities . ”", "Article CARDINAL of the LAW provides :", "“ CARDINAL . Any obstruction of defence counsel or another representative in the course of his / her lawful activities in providing legal assistance , or a violation of the lawful guarantees of his / her activities and professional secrecy –", "shall be punishable by a fine of CARDINAL times the amount of the non - taxable minimum - level income or by CARDINAL years’ correctional labour , or by CARDINAL months’ detention , or by a restriction of liberty for DATE .", "NORP The same acts , if committed by officials in the performance of their duties –", "shall be punishable by a fine of CARDINAL times the amount of the non - taxable minimum - level income or a restriction of liberty for DATE with a prohibition of DATE on the holding of certain posts or the performance of certain activities . ”", "DATE LAW provides :", "“ The court , the prosecutor , the investigator or the body of inquiry must , to the extent that it is within their power to do so , institute criminal proceedings in every case where evidence of a crime has been identified , take all necessary measures provided by law to establish whether a crime has been committed , identify the perpetrators , and punish them . ”", "Under LAW , a person who has sustained damage as a result of a criminal offence can lodge a civil claim against an accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court . A civil claimant in criminal proceedings shall be exempt from the court fee for the lodging of a civil claim .", "The relevant parts of LAW provide :", "“ A prosecutor , investigator , body of inquiry or judge is obliged to accept applications or communications regarding crimes which have been committed or planned , including in cases that are outside its competence .", "Following an application or communication in respect of a crime , the prosecutor , investigator , body of inquiry or judge is obliged , within a DATE time - limit , to adopt one of the following decisions :", "( CARDINAL ) to institute criminal proceedings ;", "( CARDINAL ) NORP to refuse to institute criminal proceedings ;", "( CARDINAL ) NORP to remit the application or communication for further examination according to jurisdiction .", "...", "In the event that it is necessary to examine the information or communication in respect of a crime before initiating criminal proceedings , such an examination shall be conducted by a prosecutor , investigator or body of inquiry , within a time - limit of DATE , by obtaining statements from individual citizens or officials or by requesting the necessary documents . ... ”", "Article CARDINAL of the Code provides that in the course of the investigation the investigator shall make all the decisions on his own as regards the direction of the investigation and the investigative actions that should be taken , except in cases where the law requires approval by the court or the prosecutor .", "Article CARDINAL of the Code provides , inter alia , that in the course of the search CARDINAL witnesses should be present . The witnesses should be unbiased . The witnesses can not be chosen from among the victims , their relatives , the relatives of the suspect or the accused or officers of the body of inquiry or investigation .", "Article CARDINAL of the Code provides :", "“ ... A search in a person ’s home and other possession may be conducted only on the basis of a reasoned court decision , except for urgent cases . ... A court decision authorising the search is not subject to appeal . A refusal by the court to allow a search may be appealed against by the prosecutor within DATE .", "In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects , the search may be performed without a court decision . The search report shall state the reasons for its performance without a court decision . Within TIME the investigator shall refer a copy of the search report to the prosecutor . ”", "Article CARDINAL of the PERSON provides :", "“ Complaints against a decision of a body of inquiry , investigator , or prosecutor refusing to open criminal proceedings shall be lodged with the district ( city ) court ... by the person whose interests are affected , or by a representative of that person , ... within DATE of receipt of the decision or of information from the prosecutor that he refused to quash the decision . ”", "Article CARDINAL of the PERSON provides :", "“ Complaints against a decision of a prosecutor , investigator or body of inquiry refusing to open criminal proceedings shall be examined by a single judge within DATE of the arrival of the case file at the court .", "The judge shall request relevant materials on which the refusal to initiate criminal proceedings was based , examine them and inform the prosecutor and the complainant of the date on which it will be examined . If necessary a judge shall hear explanations from the person who lodged the complaint . A verbatim record of the hearing shall be drawn up .", "... a judge shall take one of the following decisions :", "CARDINAL ) NORP to quash the decision refusing to open criminal proceedings and return the case file materials for additional [ “ pre - investigation ” ] enquiries ;", "CARDINAL ) NORP to reject the complaint .", "A judge ’s decision in this regard may be appealed against before the court of appeal within DATE of its adoption , by a prosecutor or a complainant . ... ”", "Section CARDINAL of the LAW provides that documents relating to a lawyer ’s professional activity may not be examined , divulged or seized without the lawyer ’s consent ." ]

[ "13", "8" ]

[ "8-1" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) are represented by PERSON , Agent , ORG and Law Enforcement .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant signed a contract for the purchase of the flat of ORG . PERSON and paid the first instalment of the price . The applicant was aware of the fact that a third individual , ORG , enjoyed the beneficial ownership of the flat and that ORG . PERSON had obtained ownership by virtue of a life annuity contracted with ORG Since ORG was mentally disabled and permanently placed in a mental hospital , he did not actually live in the flat .", "In order to finance the transaction , the applicant sold her own flat and requested a loan from her employer .", "In DATE the applicant requested ORG to approve the transaction .", "In DATE ORG refused her request and informed her that ORG had sued ORG . PERSON before ORG because of the breach of the life annuity contract . On DATE the applicant , being of the view that it was no longer possible to obtain ownership of the flat , signed a lease with ORG and moved into the flat with her CARDINAL children . She received ORG approval for the lease on DATE .", "( On DATE the ORG established that ORG had died on DATE , and that ORG had inherited ownership of the flat . )", "In the meantime , following ORG death , the applicant appealed against ORG decision of CARDINAL DATE , requesting the ORG to approve her original purchase of the flat instead of the lease . ORG , acting as a second administrative level , terminated the proceedings on DATE in view of the death of ORG The applicant did not seek judicial review of this decision .", "Subsequently , the applicant , considering that the death of ORG had removed any obstacles to the purchase of the flat , paid the second instalment of the purchase price to ORG . Z.", "On CARDINAL DATE Cs . PERSON forced the applicant to leave the flat , since she had been unable to pay the final instalment of the purchase price . The applicant did not initiate any proceedings in order to challenge ORG . PERSON ’s action . Since then she has been renting another flat , being unable to buy a new one .", "On DATE the applicant brought an action in compensation before ORG against the individuals , lawyers and ORG officials who had been a party to , or otherwise involved in , the abovementioned proceedings . ORG transferred the case to the competent ORG .", "On DATE ORG held a hearing .", "On DATE ORG partly found for the applicant and awarded her MONEY ( MONEY ) plus accrued interest in compensation . ORG relied on documentary evidence and the testimony of the parties .", "On appeal , on DATE ORG upheld the first - instance decision in substance . This decision was served on the applicant in DATE .", "On DATE the applicant requested the execution of the final decision . On DATE ORG ordered the enforcement . On DATE the bailiff informed the applicant of the suspension of the proceedings since the debtor did not possess any executable property . However , on DATE the sum awarded was paid to the applicant .", "“ ( CARDINAL ) Those who have been deprived of their possessions without justified reason or are being disturbed therein ( illicit power ) , are entitled to the protection of possession . ”", "“ ( CARDINAL ) Those who have been deprived of their possessions or are being disturbed in their enjoyment thereof may request the restoration of the original state of possession , or the termination of the disturbance , from a Notary within DATE . ”" ]

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[ "The applicant was born in DATE and lives in ORG .", "In DATE ORG convicted the applicant of soliciting for prostitution and the murder of a prostitute , committed in a particularly cruel way by a group of persons . The applicant was sentenced to DATE imprisonment . This was his first conviction . CARDINAL of his accomplices were also sentenced to CARDINAL years’ imprisonment .", "When the applicant arrived in FAC to serve his sentence in DATE , he was placed in DATE , Section CARDINAL of the prison ( IV būrys , CARDINAL brigada ) . Subsequently , he was moved to Wings DATE , CARDINAL and again to Wing CARDINAL . He spent DATE in each of those parts of the prison .", "On DATE the applicant was moved to ORG , LAW of the prison . He did not sustain any injuries while residing there , nor did he complain to the doctors about health issues that could have shown any traces of prison violence .", "R.J. , who was born in DATE , arrived in FAC on DATE . He was placed in FAC , Section CARDINAL of the prison . Notwithstanding ORG ’s CARDINAL convictions for crimes ranging from theft ( in DATE ) and attempted murder ( in DATE ) to hooliganism ( in DATE ) , he was considered as serving an imprisonment penalty for the first time , given that following his first conviction the court had suspended the imposed sentence and the sentences for the second and third convictions had been combined .", "The CARDINAL character reports drawn up by ORG administration in DATE describe the applicant as tactful with other inmates and respectful to the guards ; he was also said to have had “ certain authority ” with other prisoners . The authorities noted that the applicant had breached the prison ’s internal rules CARDINAL times ( for keeping his hands in his pockets in the presence of guards , being intoxicated , and staying at prison quarters he was not assigned to ) . Nonetheless , he had also been commended CARDINAL times for positive behaviour and good work in prison .", "As it appears from the documents submitted by the parties , in DATE PERSON had been assessed twice by the prison administration . He was described as having authority among other inmates and tactful with them , capable of easily adapting in prison .", "On DATE at TIME , a fight broke out between the applicant and PERSON As a consequence , the applicant suffered severe head injuries ; his skull was fractured . DATE he underwent an operation in a public hospital . He was later placed in the prison hospital in a coma .", "According to a doctor ’s report , ORG sustained an injury to his forehead and had blood on his face . His leg was broken and he had bruises on his arms .", "On DATE the prison governor started a pre - trial investigation into the incident .", "On DATE the ORG convicted PERSON of having caused the applicant severe bodily injury ( sunkus kūno sužalojimas ) . The court established that on DATE , at TIME , PERSON had hit the applicant CARDINAL times over the head and other parts of the body while in DATE at the prison . PERSON confessed to the crime . CARDINAL guards who testified before the court stated that once they had learned of the fight , which happened at QUANTITY , after the evening check - up , they had run to the applicant ’s cell and found him lying on the floor with his head covered in blood . The guards also stated that PERSON had smelled of alcohol .", "The transcript of the trial hearing states that PERSON testified that “ the quarrel between me and the applicant had been spontaneous ” , and “ the fight had been short ” . He also stated that he had punched and kicked the applicant ’s body and head , and that as a result the applicant had fallen down and hit his head on an aquarium . Another inmate , PERSON , had attempted to separate them . “ Afterwards the guards had run in and it had all been over ” . In answer to a question by a prosecutor , PERSON stated that “ he had had no prior conflicts with the applicant ” . He added that “ everything had happened very fast ; until the guards had run into the cell , the applicant had only managed to reach the bed and lie down ” .", "ORG testified that the conflict had taken place after TIME check - up . He said “ I tried to separate PERSON and the applicant ... the conflict happened very fast ” .", "The medical report stated that PERSON had not been intoxicated when blood samples had been taken from him “ on DATE ” . The court therefore decided to remove from the charges against him the accusation that he had been intoxicated when the crime was committed .", "The doctor ’s report reads that PERSON was tested for alcohol at TIME on DATE . The test showed PERCENT of alcohol in his blood .", "When imposing the sentence , the court took into consideration PERSON ’s young age and the fact that he had confessed to the crime . PERSON was sentenced to DATE and CARDINAL months’ imprisonment , with confiscation of all his property . The court added that term of imprisonment to his prior conviction , and PERSON was ordered to spend in total DATE in prison . Upon a civil claim by a prosecutor , PERSON was also ordered to reimburse the costs which the ORG had paid for the applicant ’s hospitalisation and treatment , which amounted to CARDINAL NORP litai ( LTL ) . At that time the applicant had not submitted a civil claim for non - pecuniary damages from PERSON", "By a ruling of CARDINAL DATE , ORG dismissed PERSON ’s appeal . The court found that there were no grounds for lowering the sentence imposed on PERSON The crime was particularly grave , with very serious consequences .", "In DATE a ORG commission declared the applicant Category I disabled ( most severe condition of disability ) and unfit to work .", "On DATE the FAC released the applicant from the remainder of his sentence . The court noted that after the incident of DATE , the applicant had become totally disabled . He could walk only by leaning on furniture and with the help of others and was unable to adequately assess his surroundings . Moreover , he had already served CARDINAL of his sentence .", "After the incident , the applicant was treated in numerous hospitals and rehabilitation centres . According to a report from ORG municipality of DATE , the applicant could not speak clearly , had poor balance , and had trouble shaving , washing himself and climbing stairs . He required constant care from his family .", "On DATE the applicant , who believed that he was eligible for pecuniary and non - pecuniary damages on account of his injury while in prison , lodged a civil claim against the ORG . He argued that the prison authorities were under an obligation to maintain order in the correctional facility and should have protected and defended him from the injury that nearly cost him his life . He submitted that there was a direct causal link between his injury and the prison authorities’ alleged failure to act and guarantee safe conditions in which to serve a sentence .", "ORG was a third interested party in those proceedings , given that the outcome of the litigation for damages directly affected his pecuniary situation .", "When the case was examined before ORG , the applicant ’s lawyer also argued that the administration of Pravieniškės Prison had failed to observe prison rules stipulating that certain prisoners should be kept separately . In that context , the lawyer referred to a letter of DATE in which the prosecutor said that ORG had to be kept in isolation . The lawyer also argued that PERSON , who had CARDINAL convictions in total , was a more hardened criminal than the applicant , so the CARDINAL should have been held separately . He also submitted that although , after the incident , PERSON had smelled of alcohol , blood samples had not been taken from him until TIME . In the past the applicant had also been punished for consuming alcohol while in prison . The lawyer argued that the guards on duty had not kept the prisoners under constant observation , as they were obliged to do under the prison regulations . He also maintained that the administration ’s decision to move an inmate from one section of the prison to another had to be justified , which had not happened in the applicant ’s case . Lastly , the lawyer argued that his client had not started the proceedings for damages earlier because of his state of health .", "PERSON testified before ORG that he had been serving his sentence in the same section of FAC since DATE . In his view , “ it was the ORG that should bear responsibility for the injuries the applicant had sustained ” . He also argued that his relations with the applicant had always been tense , that “ the applicant did not fit in [ in Wing CARDINAL , LAW ] ” , “ the applicant was a ‘ simple’ person and the other inmates in that section were ‘ ORG ” and “ the fight between the CARDINAL of them would have occurred sooner or later ” . In his opinion , “ the prison administration could have foreseen the tension between him and the applicant if it had wanted ” . PERSON did not answer the judge ’s question about the reasons for the fight . Nor did he reply to her question whether he had been under the influence of alcohol at the time of the fight . He nevertheless submitted that prisoners could obtain as much alcohol in the prison “ as they wanted ” . The guards caught them with alcohol very rarely and , as far as PERSON ’s recalled , the applicant had been sober at the time of the fight . PERSON also said that after TIME check - up , the guards carried out the first night - time check at TIME , and TIME at a later time .", "The Pravieniškės Prison administration and ORG , the defendants in the case , asked the court to dismiss the civil claim , arguing that the fight had been spontaneous and the conflict could not have been foreseen . They submitted that the applicant had never informed the prison administration that he had been in danger . Accordingly , the ORG was not liable for the incident that had caused the applicant ’s incapacity .", "The prison authorities also pointed out that the inmates should have been in bed by TIME , and that at TIME the guards checked the sleeping quarters twice .", "On DATE ORG dismissed the applicant ’s civil claim . It noted , firstly , that the applicant had missed a statutory DATE deadline for lodging a claim for damages . Nevertheless , the court proceeded with the examination of whether the complaint was founded .", "As to the merits of the complaint , ORG held that there was no evidence , either written or factual , of the applicant having ever approached the authorities claiming that he was unsafe in FAC , even though such a right was guaranteed by LAW ( see Relevant Domestic Law and Practice below ) . The court also emphasised that the prison administration had properly executed its duties as concerns the placement of inmates . Both the applicant and PERSON had been serving a prison sentence for the first time , so they could be held in the same wing and section . As to the suggestion by the applicant ’s lawyer that the applicant had been moved from CARDINAL part to another of the prison without a valid reason , the court held that “ the applicant could have challenged those actions [ but had failed to do so ] ” . Moreover , the applicant himself had not been an exemplary prisoner and had been punished a number of times for breaching internal rules ( ranging from alcohol consumption to leaving his living quarters ) . The court found weighty the prison administration ’s argument that the applicant had never approached them claiming , either verbally or in writing , that he was unsafe in prison in general or that he had had any conflicts with a particular inmate . Consequently , there were no grounds for finding the prison administration liable for not preventing the incident . According to the case - file , the fight was spontaneous and took place after the TIME check - up , when all the inmates , including the applicant and PERSON , should have been sleeping or at least in bed . Overall , there was no legal basis for granting the applicant ’s civil claims .", "The applicant appealed , invoking LAW and reiterating his earlier arguments that the ORG had not protected him from serious injury in prison , as a consequence of which his health had been permanently damaged . He also submitted that the prison administration had failed to ensure that prisoners could not obtain alcohol , arguing that alcohol made prisoners unpredictable and aggressive .", "ORG asked that the civil claim be dismissed as unfounded . They pointed out that there was no objective evidence that PERSON had been under the influence of alcohol during the incident . That fact had not been established in the criminal proceedings .", "On DATE ORG examined the applicant ’s appeal but dismissed it on the merits . There was no evidence in the case file that any action or inaction on the part of staff at FAC had contributed to the incident between the applicant and PERSON During the criminal proceedings , it had been established that it was PERSON who had injured the applicant , and PERSON had been convicted accordingly . Therefore , as it had not been possible to establish any illegal acts or failure to act on the part of the prison staff , the ORG could not be held responsible for the non - pecuniary damage the applicant had sustained .", "The Code of Correctional Works ( Pataisos darbų kodeksas ) , as in force at the relevant time , reads as follows :", "“ The purpose of accommodating convicts separately or in isolation in correctional institutions is :", "to separate convicts who , due to the nature of their crimes or their character , might negatively influence other inmates ;", "to facilitate the social rehabilitation of convicts ;", "to help ensure the supervision and safety of convicts ;", "to help safeguard the requirements of security and administration of the correctional institutions ...", "The following categories of convict should be isolated from each other within the same correctional institutions , or if possible placed in different institutions : convicts sentenced to imprisonment for the first time ; those convicted for intentional and negligent crimes , ... very dangerous recidivists ; those convicted for serious crimes ...", "If a convict , serving his sentence at a correctional prison , addresses the administration in writing with a request to be isolated from other inmates for important reasons , the director of the prison has a right to transfer the convict to a cell and to hold him in isolation or with other inmates transferred to the cell for the same reasons . The duration of such a transfer shall be fixed by the prison administration . A transfer to a cell is not considered as a penalty ... ”", "“ The main obligations of prison authorities are the following : where necessary , the isolation of convicts and their constant supervision ; ... guaranteeing different conditions of custody for convicts having regard to the nature of their crime and their dangerousness , character of a convict and his or her behaviour . ”", "“ The convicts have the right to address the ORG and municipal officials ... submitting requests , proposals and complaints ... ”", "The Internal Regulations of Correctional Institutions ( Pataisos darbų įstaigų vidaus tvarkos taisyklės ) , approved by decision no . CARDINAL of the Minister of Justice on DATE , read as follows :", "“ CARDINAL . Convicts must be treated in such a way as to safeguard their health ...", "Prisons may be divided into sectors . In accordance with Recommendation No . R ( CARDINAL ) CARDINAL of ORG , the purposes of allocating prisoners to separate sectors are :", "to separate from others those prisoners who , by reasons of their criminal records or their personality , are likely to benefit from that or who may exercise a bad influence ;", "to facilitate their treatment and social resettlement taking into account the management and security requirements ...", "Psychologists , heads of wing , internal investigation officers , supervisors and staff ... conduct investigatory and explanatory work upon the arrival of new prisoners who are placed in quarantine ... While placed in quarantine , prisoners must be provided with adequate information about their rights , duties , prison regulations and the conditions in which their sentence will be carried out ...", "NORP In order to guarantee internal order at the correctional institution , safeguard the security of the institution , their personnel and prisoners , and also to ensure the discipline of prisoners , the latter are forbidden :", "( ... )", "to obtain , produce , consume and distribute alcoholic drinks , their substitutes , toxic , psychotropic and narcotic substances ...", "Health care staff shall examine a convict who has sustained bodily injury and shall make a note of the nature of the convict ’s injury , describing the circumstances ( according to the convict ’s statements ) under which the injury was inflicted , also indicating place and time . The medical personnel shall make an entry in a special journal and inform the [ prison administration ] . ”", "On DATE the Minister of ORG issued an Instruction for the Security and ORG , which sets out the measures prison authorities must take to ensure continuous supervision of prisoners , isolation where necessary and the implementation of regime requirements . Supervision is also aimed at preventing possible breaches of discipline and crimes . For that purpose , the guards watch and count the prisoners , and search the prisoners and LOC . The guards supervise the prisoners and LOC from their posts located throughout the prison and while moving around the prison . They must ensure that the prisoners obey the DATE schedule and that they remain in the sectors allocated to them . The prisoners are counted CARDINAL times a day . In order to find and collect prohibited items , the guards perform both scheduled and surprise searches of the inmates and LOC .", "Under LAW , an abridged DATE statutory time - limit applies to claims for damages ( LAW . The LAW also provides :", "“ CARDINAL . Civil liability shall arise from the non - performance of a duty established by law or by contract ( unlawful failure to act ) , or from the performance of actions that are prohibited by law or by contract ( unlawful action ) , or from the violation of the general duty to behave with care . ”", "“ CARDINAL . Damage caused by the unlawful action of a public authority institution must be compensated by the ORG from the resources of the ORG budget , irrespective of any fault on the part of a particular public servant or other employee of the public authority institution ...", "For the purposes of this LAW , the notion ‘ public authority institution’ shall mean any subject of public law ( ORG or municipal institution , official , public servant or any other employee of these institutions , etc . ) , as well as a private person performing the functions of a public authority .", "For the purposes of this LAW , the notion ‘ GPE shall mean any action ( or inaction ) by a public authority institution or its employees that directly affects the rights , liberties and interests of persons ...", "Civil liability of the ORG or a municipality subject to this Article shall arise where employees of public authority institutions fail to act in the manner prescribed by law for those institutions and their employees . ”", "Recommendation no . R(CARDINAL)CARDINAL of ORG to member states on ORG of CARDINAL DATE ( “ ORG ” ) includes in its basic principles :", "“ CARDINAL . CARDINAL . In allocating prisoners to different institutions or regimes , due account shall be taken of their judicial and legal situation ( untried or convicted prisoner , first offender or habitual offender , short sentence or long sentence ) , of the special requirements of their treatment , of their medical needs , their sex and age .", "NORP Males and females shall in principle be detained separately , although they may participate together in organised activities as part of an established treatment programme .", "NORP In principle , untried prisoners shall be detained separately from convicted prisoners unless they consent to being accommodated or involved together in organised activities beneficial to them .", "Young prisoners shall be detained under conditions which as far as possible protect them from harmful influences and which take account of the needs peculiar to their age ...", "The purposes of classification or reclassification of prisoners shall be :", "a. to separate from others those prisoners who , by reasons of their criminal records or their personality , are likely to benefit from that or who may exercise a bad influence ; and", "b. to assist in allocating prisoners to facilitate their treatment and social resettlement taking into account the management and security requirements .", "So far as possible separate institutions or separate sections of an institution shall be used to facilitate the management of different treatment regimes or the allocation of specific categories of prisoners . ”", "Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on the management by prison administrations of life sentence and other long - term prisoners , adopted on DATE , reads as follows :", "“ CARDINAL . A careful appraisal should be made by the prison administration to determine whether individual prisoners pose risks to themselves and others . The range of risks assessed should include harm to self , to other prisoners , to persons working in or visiting the prison , or to the community , and the likelihood of escape , or of committing another serious offence on prison leave or release .", "Needs assessments should seek to identify the personal needs and characteristics associated with the prisoner ’s offence(s ) and harmful behaviour ( ” criminogenic needs ” ) . To the greatest extent possible , criminogenic needs should be addressed so as to reduce offences and harmful behaviour by prisoners both during detention and after release .", "The initial risk and needs assessment should be conducted by appropriately trained staff and preferably take place in an assessment centre .", "a. Use should be made of modern risk and needs assessment instruments as guides to decisions on the implementation of life and long - term sentences .", "b. Since risk and needs assessment instruments always contain a margin of error , they should never be the sole method used to inform decision - making but should be supplemented by other forms of assessment .", "c. All risk and needs assessment instruments should be evaluated so that their strengths and weaknesses become known .", "NORP Since neither dangerousness nor criminogenic needs are intrinsically stable characteristics , risk and needs assessments should be repeated at intervals by appropriately trained staff to meet the requirements of sentence planning or when otherwise necessary .", "Risk and needs assessments should always be related to the management of risks and needs . These assessments should therefore inform the choice of appropriate interventions or modifications of those already in place . ”", "“ CARDINAL . a. The maintenance of control in prison should be based on the use of dynamic security , that is the development by staff of positive relationships with prisoners based on firmness and fairness , in combination with an understanding of their personal situation and any risk posed by individual prisoners .", "b. Where technical devices , such as alarms and closed circuit television are used , these should always be an adjunct to dynamic security methods ...", "a. LOC regimes should be organised so as to allow for flexible reactions to changing security and safety requirements .", "b. Allocation to particular prisons or wings of prisons should be based on comprehensive risk and needs assessments and the importance of placing prisoners in environments that , by taking account of their needs , are likely to reduce any risk posed .", "c. Particular risks and exceptional circumstances , including requests by prisoners themselves , may necessitate some form of segregation of individual prisoners . Intensive efforts should be made to avoid segregation or , if it must be used , to reduce the period of its use .... ”" ]

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[ "The case originated in an application ( no . CARDINAL ) against GPE lodged with ORG under LAW ( “ the LAW ) by a NORP company , ORG ( “ the applicant company ” ) , on DATE . The applicant company was represented by PERSON and Mr PERSON , lawyers practising in GPE , GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , Attorney General .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE ORG and the ORG issued a call for tenders for the design , organisation and management of a quality national event , on the occasion of the celebration of GPE ’s accession to ORG .", "The deadline for submitting bids was DATE .", "CARDINAL participants ( the applicant company , ORG and ORG ) paid the relevant fees and guarantees and submitted their bids .", "On DATE the tender was awarded by ORG .", "On DATE the applicant company objected to this decision . On DATE a hearing took place before ORG ( the “ ORG ” ) .", "The applicant company alleged that the bid made by PERSON had not met the formal requirements of the tender . In particular , its components had been presented collectively and not individually and it had not been submitted in an itemised format . Moreover , the bid in question had been based on incorrect and misleading information . It had made reference to “ laser cannons ” which , according to the applicant , did not exist , and to a TV transmission deal with ORG ( the “ GPE ) , which was not dependent on the involvement of PERSON . In the applicant ’s view , as the ORG would have broadcast all the major shows from the CARDINAL acceding countries , this matter should not have been taken into consideration during adjudication . The applicant company further stated that its bid was better value for money .", "Welcomeurope challenged the applicant company ’s arguments . It contended that “ cannon lights ” would be used in the show . Furthermore , the ORG had informed them that , due to the presence of an artist who had signed a contract with PERSON for the exclusive right to use his services , GPE would have been allotted a longer transmission period .", "Representatives from ORG gave oral evidence , stating that both bids had satisfied the formal requirements of the tender and that the final choice in favour of PERSON had been based on the price and on the satisfactory standard reached .", "The applicant company requested the production of a number of documents , namely ORG report , TIME of meetings regarding the bids , letters from PERSON relating to TV coverage , ORG detailed list of equipment and its certificate of insurance cover . It alleged that these documents were indispensable for allowing it to substantiate its objections .", "PERSON objected to this request , noting that some of the documents contained commercial information of a highly confidential nature .", "The ORG observed that it could authorise the production of documents only in so far as they were relevant to the objections raised and strictly necessary for giving a ruling on their merits . As a consequence , only a small extract from ORG report was produced . The chairman of ORG had in fact noted that other parts of the report might have contained commercial and other information of a confidential nature .", "In a decision of DATE , the ORG rejected the applicant company ’s claim . It held that the invalidity of ORG bid had not been proved and that there had been no reason to doubt the method used by ORG to assess the bids , which had been based on an overall assessment and had not been dependent on the amount or type of lasers used .", "On DATE the applicant company lodged an application with ORG ( FAC ) in its constitutional jurisdiction . It alleged that the rejection of its request for the production of documents had infringed its right to a fair hearing .", "By a judgment of DATE , ORG dismissed the applicant company ’s claim on the ground that LAW was not applicable to the proceedings before the ORG .", "It recalled that this provision only applied to disputes concerning civil rights and obligations . These rights belonged to private and not to public law and existed only if they arose from a “ clearly defined statutory right ” . Thus , although a company was entitled not to be discriminated against in the adjudication procedure , it did not have a civil right to be awarded the tender . The fact that it carried out commercial activities aimed at earning profit was not in itself sufficient to bring LAW into play .", "Moreover , it could not be said that the ORG was a “ tribunal ” within the meaning of this provision . It was not independent since essential features of its constitution and of the exercise of its functions depended on the Prime Minister . Furthermore , its decisions took the form of specific recommendations , which were final as regards the award of the contract . They were binding on ORG who could not be considered a body having judicial powers . According to domestic case - law , a recommendation did not have the same authority as a judgment of a competent court determining the existence of civil rights and obligations .", "On DATE the applicant company appealed to ORG .", "It claimed that according to the case - law of ORG , the word “ tribunal ” in LAW had to be given a wider interpretation , not based on the distinction between quasi - judicial and purely administrative bodies . All judicial authorities that determined a person ’s complaints affecting his or her rights should be considered a “ tribunal ” . In particular , the dispute submitted to the ORG concerned civil rights and obligations . Indeed , the participation in the tender involved substantial financial and logistical efforts and the award of the contract would have entailed significant financial benefits for the applicant . By its very nature , the whole process gave rise to rights and obligations in respect of any person entering into negotiations to obtain such an award .", "The applicant further argued that , having regard to the manner of appointment of its members and to its procedures , the ORG resembled more a court or judicial tribunal than an administrative body .", "By a judgment of DATE , ORG rejected the applicant company ’s appeal .", "It held that NORP law applicable at the time ( ORG ) did not grant any rights in the context of a public call for tenders . The mere act of submitting a tender did not give the applicant company the right to have its tender accepted . It was true that the amount of work involved in submitting a tender and the financial expenses attached to it carried with it an obligation to act in good faith and with the diligence of a bonus pater familias throughout the negotiations . However , these obligations only had a pre - contractual nature ; they could give rise to a claim for damages , but not to any right to demand specific performance .", "In the present case , the applicant did not request damages but a reconsideration of the decision . The fact that the result of the proceedings before the ORG had economic consequences for the applicant was not sufficient to conclude that the dispute concerned the determination of a civil right . ORG distinguished the applicant company ’s case from the case of ORG and Others and PERSON and Others v. GPE ( see judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) . Although that case had dealt with tenders , the right at issue was the right not to be discriminated against in the job market .", "In view of the above , ORG concluded that the proceedings before the ORG did not involve a determination of civil rights and obligations . It was therefore irrelevant to establish whether the ORG was a “ tribunal ” within the meaning of LAW .", "LAW A ( CARDINAL ) of LAW ( the “ COCP ” ) , reads as follows :", "“ Save as is otherwise provided by law , the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null , invalid or without effect only in the following cases :", "( a ) where the administrative act is in violation of the LAW ;", "( b ) when the administrative act is ultra vires on any of the following grounds :", "( i ) when such act emanates from a public authority that is not authorised to perform it ; or", "( ii ) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon ; or", "iii ) when the administrative act constitutes an abuse of the public authority ’s power in that it is done for improper purposes or on the basis of irrelevant considerations ; or", "iv ) when the administrative act is otherwise contrary to law . ”", "Regulation CARDINAL.CARDINAL of ORG read as follows :", "“ These regulations do not confer any right on any tenderer , supplier or contractor beyond those pertaining under civil law . ”", "Regulation CARDINAL of the sixth schedule to LAW to :", "“ evaluate tenders submitted as well as reports and recommendations made thereon by the respective departments and public organisations and make definite recommendations for the award of tenders ensuring that the best value for money at the lowest possible cost is attained . In this regard , due consideration shall be given to", "i. the final cost including financing costs to Government or to the public organisation , and", "ii . the impact of each offer on the recurrent expenditure of Government or the public organisation ; ”", "LAW were amended by LAW of DATE , ( the “ DATE Regulations ” ) . In so far as relevant LAW read as follows :", "Regulation CARDINAL", "“ ( CARDINAL ) Contracting authorities shall ensure that there is no discrimination between undertakings , and that all undertakings are treated equally in all calls for tenders whatever their estimated value .", "...", "( CARDINAL ) Contracting authorities shall respect fully the confidential nature of any information furnished by candidates and tenderers .", "( CARDINAL ) In the context of provision of technical specifications to interested candidates and tenderers , the qualifications of candidates and selection of tenderers and the award of contracts , contracting authorities may impose requirements with a view to protecting the confidential nature of information which they may wish to make available . ”", "Regulation CARDINAL", "“ ( CARDINAL ) Any tenderer who feels aggrieved by a proposed award of a contract and any person having or having had an interest in obtaining a particular ... contract and who has been or risks being harmed by an alleged infringement may ... file a notice of objection with ORG or the contracting authority involved as the case may be . ”", "The functions of the ORG have not been subject to any relevant changes in the past amendments and ORG in so far as relevant read as follows :", "“ ( CARDINAL ) The sessions of ORG during which the complaint is heard shall be held in public and both the complainant and the interested party shall have the right to attend and to be accompanied by any person , professional or otherwise , whom they consider suitable to defend their interests .", "( CARDINAL ) The Chairman shall ensure that during the public hearing all interested parties are given the opportunity to state their cases .", "...", "( CARDINAL ) All decisions taken by the ORG shall be submitted in writing and shall contain the full facts and reasons on which the ORG ’s final decision is taken . All decisions shall be concluded with definite recommendations which shall be binding on ORG .", "( CARDINAL ) Any bidder submitting a complaint who is not satisfied with the final decision taken by the ORG shall have final legal rights to refer the matter to a LAW and to seek any redress or compensation which he considers due to him as a result of the decision with which he may disagree . Such recourse by any bidder to a LAW shall not deter ORG from implementing the ORG ’s final decision . ”" ]

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[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the Court by Mr PERSON , PERSON and PERSON GPE , lawyers practising in GPE .", "NORP The applicant ’s village is situated on the banks of NORP river , at QUANTITY downstream from LOC .", "On DATE and DATE , following heavy rain , the river broke its banks and flooded the applicant ’s house . The water ruined a stone fence , a shed and a DATE kitchen , and carried away furniture , wood , home - canned food , and other chattels . The house ’s cellar and basement were damaged by dampness .", "On DATE the applicant brought a claim for damages under section CARDINAL ( CARDINAL ) of ORG DATE against ORG and the Governor of GPE . She alleged that the flood water had carried away trees and branches which had cluttered the riverbed . As the defendants had failed to clean it , this had impeded the flow of water and had caused flooding . She also alleged that no embankments or other protective facilities had been built to protect her village from flooding , and that no monitoring or alert systems had been put in place . She claimed that those omissions had been in breach of the defendants’ obligations under several provisions of LAW DATE that expressly envisaged such measures .", "Having initially decided to proceed with the case , in a decision of CARDINAL August CARDINAL , ORG dismissed the applicant ’s claim as inadmissible . It held that the administrative courts were not competent to examine it because the alleged omissions of the defendants did not constitute administrative action within the meaning of Article CARDINAL § CARDINAL of the Code of Administrative Procedure and section CARDINAL ( CARDINAL ) of LAW . The relations between the applicant and the authorities in connection with the flood were not characterised by an exercise of authority and were therefore not governed by the rules of administrative law . The impugned omissions of the authorities did not form part of their administrative activities .", "NORP On appeal , on DATE ORG upheld that decision , with almost identical reasoning . It went on to say that the applicant could bring a claim before the civil courts ." ]

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[ "The applicants were born in DATE , DATE and DATE respectively . When they introduced the application , they were all living in GPE .", "The first applicant went to GPE in DATE to live with his parents and siblings . As from DATE he cohabited with the second applicant , who was born in GPE and has lived there all her life . They married under NORP law in DATE and under NORP civil law in DATE . Their daughter , the third applicant , was born on DATE .", "On DATE the first applicant was sentenced to CARDINAL ORG imprisonment on probation for shoplifting by ORG .", "On DATE ORG ( Bezirksgericht ) convicted him of theft without pronouncing a sentence . The court established that in DATE the first applicant had stolen moped - accessories , cutlery and other commodities , CARDINAL gold rings and a gold bracelet , worth altogether CARDINAL NORP schillings ( ORG ) , equivalent to MONEY ( ORG ) . A probation period of DATE was fixed .", "In DATE and DATE the first applicant was convicted of CARDINAL minor breaches of traffic rules and sentenced to pay fines of ORG CARDINAL , CARDINAL respectively . DATE he was convicted CARDINAL times of driving a car without a driving licence and sentenced to pay fines of ORG CARDINAL,CARDINAL , CARDINAL , respectively ( equivalent to EUR CARDINAL , CARDINAL and CARDINAL ) .", "On DATE , still without a driving licence , he overran a red traffic light and exceeded the speed limit of QUANTITY , driving at CARDINAL km / h . On DATE ORG ( GPE ) convicted him of these offences and sentenced him to a fine of ORG CARDINAL .", "On DATE ORG imposed a DATE residence ban on the first applicant .", "On DATE ORG ) dismissed the first applicant ’s appeal .", "The authority referred to section QUANTITY of the DATE LAW , which paragraphs provide that a residence ban has to be issued against an alien , inter alia , if he has been convicted more than once for similar offences by a domestic or foreign court , or if a fine has been imposed on him more than once for a grave administrative offence by an administrative authority . The ORG found that both conditions had been met in this case .", "Further , ORG , referring to the first applicant ’s stay in GPE since DATE , the fact that his close family was living in GPE , his co - habitation with a NORP national who was born in GPE , and his employment , found that the residence ban constituted an interference with the applicant ’s right to respect for his private and family life . However , it was necessary for the aims set out in LAW , namely for the prevention of crime and the protection of the rights of others . Given the first applicant ’s continuous disregard of NORP law , the authority assumed that it was probable that he would commit similar offences in the future . Thus , despite the first applicant ’s high degree of integration in GPE , the public interest in issuing a residence ban outweighed the first applicant ’s interest in staying . This decision was served on the first applicant on DATE .", "On CARDINAL DATE the applicant was taken into detention with a view to his expulsion .", "On DATE ORG refused to deal with the first applicant ’s complaint as it lacked sufficient prospects of success .", "Subsequently , the first applicant lodged a complaint with ORG . He requested that the decisions relating to the residence ban against him be quashed for errors of law . He submitted that the contested decisions violated his right to respect for his private and family life . In particular , he complained that the competent authorities had failed duly to weigh his interests in staying in GPE against the public interest of issuing a residence ban against him . Although he had been convicted of theft , no punishment had been imposed on him . The other convictions only concerned administrative offences . Neither his fiancée , the second applicant , who was born in GPE and worked there , nor their daughter , the third applicant , could be expected to follow him to GPE .", "Furthermore , the first applicant submitted that GPE had become a member of ORG on DATE and was therefore bound by ORG between ORG and GPE . According to this Agreement , and the decisions on its implementation , NORP workers who had been legally employed in a member ORG for a certain period had a right of free access to the employment market and also to a residence permit . In this context the first applicant requested ORG to refer the case to ORG of ORG for a preliminary ruling under LAW of LAW . Moreover , measures of public security against such workers were only possible if the public interest was massively and actually endangered . Therefore , it would contradict GPE - law to issue a residence ban against the child of a migrant worker ’s family who has never committed anything else than petty crimes .", "On DATE ORG granted the first applicant ’s complaint suspensive effect . Thereupon , on CARDINAL DATE , the applicant was released from detention with a view to his expulsion .", "On DATE ORG dismissed the first applicant ’s complaint . It found that the contested residence ban served aims set out in LAW , namely the prevention of crime and the protection of the rights of others . Furthermore , ORG had duly weighed the interests involved . Given the fact that the first applicant had committed several criminal and administrative offences during a protracted period , the public interest weighed more heavily than the private interest , even in cases where an alien was integrated as the first applicant .", "As to ORG between ORG and GPE , and in particular decree no . CARDINAL of ORG , ORG noted that the rights contained therein only applied after a certain number of DATE of lawful employment . The first applicant had failed to submit the relevant facts to the administrative authorities , in particular whether he had been working in GPE for the requisite period . Thus , ORG could not be reproached for not having taken into account that ORG and the above decree . The decision was served on the first applicant on DATE .", "On DATE an order to leave NORP territory was served on the first applicant , with which he complied on DATE .", "The first applicant is currently living in GPE . The validity of his residence ban expired in DATE . However , according to his submissions , which were not contested by the Government , the possibilities of legally returning to GPE are very limited and involve long waiting periods .", "It appears that the second and third applicants visited the first applicant on a number of occasions in GPE and spent a longer period of time there at DATE and in DATE . In DATE the first and second applicants divorced . According to the divorce decree issued by a NORP court , the second applicant has sole custody over the third applicant while the first applicant has a right of access . In DATE the second applicant returned to GPE . She has a settlement permit and a work permit . She has left the third applicant temporarily in GPE where the latter is being cared for by relatives but intends to bring her back to GPE .", "" ]

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