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jonathanli

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echr

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[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Mr B. PERSON , a lawyer practising in PERSON .", "NORP In DATE the applicant was initially diagnosed with narcolepsy ( chronic sleep disorder ) . That diagnosis was confirmed in DATE . Narcolepsy is characterised by excessive sleepiness and sleep attacks . Since DATE the applicant has been followed by a psychiatrist and received pharmacological treatment . In DATE the applicant was diagnosed with diabetes and hypertension ( DATE ) , sleep apnoea ( DATE ) as well as epilepsy ( DATE ) . He was hospitalised following an epileptic seizure ( DATE and DATE ) and a cardiac arrest ( DATE ) .", "In DATE a psychiatrist treating the applicant advised the applicant to take PERSON ( PERSON ) which , in contrast to previous drugs , had positive effects on his condition . The drug was initially provided by a pharmaceutical company free of charge to the applicant ’s doctor . Subsequently , the drug became available in pharmacies but was not listed on ORG register of refunded drugs . The applicant could buy the drug at his own expense .", "In DATE the applicant was admitted to ORG at ORG in GPE . He was diagnosed with narcolepsy and breathing difficulties while sleeping . On the certificate dated DATE Doctor PERSON stated that PERSON ( PERSON ) was the basic drug used in the treatment of narcolepsy .", "In DATE the applicant underwent a bypass surgery in the ORG . In DATE he was hospitalised for pneumonia .", "On DATE the applicant requested the Szczecin Branch of ORG ( “ the NHF ” ) to refund him the cost of the drug . He submitted that he suffered from narcolepsy as well as from diabetes . He also had a stroke . He had frequently lost consciousness and was hospitalised on account of those ailments . He claimed that the psychiatrists and neurologists treating narcolepsy were of the view that PERSON ( PERSON ) was the only effective drug for his condition . He submitted opinions of CARDINAL doctors from private practice to that effect . The applicant was not able to afford to buy the drug and submitted that there was no generic drug available .", "By a letter of CARDINAL DATE the applicant was informed that the ORG refunded the cost of drugs in accordance with the Ordinance of ORG on the register of drugs which were distributed free of charge , against the payment of a lump sum or against a partial payment ( “ the LAW ” ) . The contents of the register of the refunded drugs and related matters were determined by ORG . The applicant was informed that there was no possibility to refund the cost of those drugs which were non - refundable according to the Ordinance . Lastly , he was advised that he could be assisted by the social services .", "On DATE the applicant requested ORG of ORG to prepare an opinion as to whether PERSON ( PERSON ) could be considered a life - saving drug in his case . In the opinion of DATE Doctor PERSON , having regard to the applicant ’s medical history , replied in the affirmative . She noted that PERSON ( PERSON ) was the basic drug used in the treatment of narcolepsy and that it had improved the applicant ’s condition . The expert established that the first attacks of narcolepsy had been diagnosed in DATE and that from DATE he has been under psychiatric care .", "It appears that on an unspecified date in DATE the applicant again requested to be refunded the cost of the drug . On DATE the ORG informed him that according to the opinion of the regional consultant in neurology , Professor ORG , PERSON ( PERSON ) was not a drug routinely used in the treatment of narcolepsy and that it was not a life - saving drug . Furthermore , the limited financial resources of ORG of the ORG did not permit the refunding of all expensive drugs which were fully at the charge of a patient .", "In an opinion dated DATE , which appears to have been commissioned by the applicant , Doctor PERSON noted that PERSON ( PERSON ) was the only tested and widely used drug in the treatment of narcolepsy .", "NORP On DATE the applicant sued the Szczecin Branch of the NHF for reimbursement of expenses incurred in purchasing PERSON ( PERSON ) DATE ( PLN CARDINAL,CARDINAL.CARDINAL ) . In support of his claim he relied on the opinions of DATE and DATE . ORG ordered that an opinion be prepared with a view to determining whether PERSON ( PERSON ) was a lifesaving drug given the applicant ’s condition .", "The opinion was submitted to the court on DATE . The expert established that the applicant suffered from narcolepsy ( he had been diagnosed in DATE ) , sleep behaviour disorder and breathing difficulties in sleep . In addition , the applicant suffered from hypertension , ischaemic heart disease , type CARDINAL diabetes and epilepsy . The applicant ’s sleep disorders increased the risk of strokes . The expert concluded that the applicant ’s narcolepsy together with his numerous ailments required that he was treated with PERSON ( PERSON ) , which in his case was a life - saving drug . The conclusions of the opinion were similar to those in the opinion of DATE .", "In its letter of DATE LOC of the ORG again informed the applicant that , despite the positive opinion of the regional consultant in neurology , there was no possibility of individual reimbursement of the cost of the drug which remained fully at the patient ’s charge since PERSON ( PERSON ) was not a life - saving drug and narcolepsy was not a fatal condition . The drug PERSON ( PERSON ) was not listed on the Minister of ORG ’s register of refunded drugs and thus it was to be purchased exclusively at the expense of the patient . He was further informed that persons in a difficult financial situation could have recourse to social services .", "On an unspecified date LAW transmitted the case to ORG of the court , since the latter instance was competent to hear the case . ORG of the District Court found that it did not have jurisdiction to hear the case since it examined appeals against administrative decisions , and in the applicant ’s case the ORG had not issued any such decision . On DATE ORG found that it did not have jurisdiction to hear the case and transmitted it to LOC of the NHF for a decision in respect of the reimbursement of the cost of the therapy .", "On DATE the applicant requested the Szczecin Branch of the ORG to reimburse him for the cost of the drug . In reply , he was informed that no decision could be given until the delivery of a decision in the case pending before ORG .", "On DATE the applicant submitted a similar request . On DATE the ORG refused his request . It found that PERSON ( PERSON ) was neither included on the relevant register of refunded drugs of ORG nor on the separate register of specific serious diseases and drugs which could be refunded in the treatment of those diseases . The drugs which were not listed in those registers were nonrefundable and remained fully at the patient ’s charge . The applicant was further advised that the regional branch of the ORG could , in necessary cases , authorise non - standard medical treatment at the request of ORG , the establishment where he was treated .", "The applicant appealed , arguing , inter alia , that he was unable to afford to buy PERSON ( PERSON ) .", "On DATE the President of the ORG upheld the contested decision . He noted that LAW provided that citizens were ensured equal access to health care services , financed from public funds . However , the conditions and the scope of the provision of services should be established by statute . At the material time those issues were regulated by ORG from LAW ( “ the LAW ” ) . In accordance with the LAW , the ORG was to refund to a pharmacy the price of a drug which appeared on the list of fully or partially refunded drugs .", "The LAW introduced the rule that patients were to pay a part of the price of drugs sold by pharmacies and designated the Minister of Health as the competent authority to determine the scope of the partial payment as well as of the financing from public funds . It was noted that the ORG had no discretion to exercise in this respect . The Minister of ORG was competent to establish the list of drugs which were to be fully or partially refunded in his CARDINAL ordinances of DATE and the drug PERSON ( PERSON ) did not appear on that list . Lastly , it was noted that the refund of the cost of a drug by the ORG was only allowed in cases of administering the drug in the framework of the provision of health services by health establishments to patients in accordance with contracts concluded between the ORG and those establishments .", "The applicant filed a complaint against that decision with ORG . He alleged that the refusal to refund the cost of PERSON ( PERSON ) amounted to a violation of NORP CARDINAL ( equality ) , CARDINAL ( protection of life ) and CARDINAL of the LAW ( equal access to health care services ) and a breach of section CARDINAL and CARDINAL of LAW . He pointed out that for DATE he had been suffering from a rare neurological disease and that according to medical expert opinions PERSON ( PERSON ) was a life - saving drug in his case . Furthermore , the cost of the DATE intake of the drug was in the region of PLN CARDINAL,CARDINAL , while the joint income of the applicant and his wife ( both retired ) was ORG and they were already spending DATE LAW on various medications .", "On DATE ORG declared the decision of the President of the NHF and the preceding decision null and void for the lack of competence on the part of that authority to deal with the matter . It noted that LAW did not envisage the possibility that a patient could seek reimbursement of the cost of medical treatment . Such a possibility was reserved exclusively for entities providing health care services . The court observed that there was no legal basis for the ORG ’s decision in respect of the refund for a particular drug . It appears that the applicant did not lodge an appeal with ORG .", "On DATE the applicant again requested the President of the NHF to refund the cost of PERSON ( PERSON ) . In his reply of CARDINAL October DATE the Director of ORG of the NHF informed the applicant that , in accordance with ORG judgment , the ORG was not competent to issue decisions in respect of the refund of costs of health care services .", "On DATE the ORG declined to examine the applicant ’s constitutional complaint .", "On DATE the applicant again sued ORG of the NHF for reimbursement of expenses incurred in purchasing the drug . On DATE ORG rejected his statement of claim , having found that the branch of the NHF did not have standing in the proceedings .", "On DATE the applicant unsuccessfully requested the President of the NHF to refund the cost of the drug . His request was forwarded to the Minister of Health as the competent authority to list a drug on the register of drugs which were partially or fully refunded .", "On DATE ORG informed the applicant that the company making PERSON ( PERSON ) had not applied for the listing of the drug on the register of refunded drugs and therefore the Ministry could not act on the matter .", "By a decision of DATE LOC of the NHF , acting in line with ORG judgment , discontinued the proceedings in respect of the applicant ’s request for refund .", "It appears that the applicant continues to buy PERSON ( PERSON ) at his own expense .", "DATE the LAW reads in so far as relevant :", "“ CARDINAL . Everyone shall have the right to have his health protected .", "Equal access to health care services , financed from public funds , shall be ensured by public authorities to citizens , irrespective of their material situation . The conditions for , and scope of , the provision of services shall be established by statute .", "Public authorities shall ensure special health care to children , pregnant women , handicapped people and persons of advanced age . ”", "The CARDINAL Act defined the conditions for and the scope of health care services financed from public funds . It stipulated that the Minister of Health shall set out in an ordinance the list of basic and complementary drugs and the rules concerning payment for those drugs ( section CARDINAL ) and the list of drugs in respect of certain serious conditions which were prescribed free of charge , against payment of a lump sum or against a partial payment ( section CARDINAL )" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is married and has CARDINAL children . Prior to his application for an earlyretirement pension he had been employed for DATE and had paid social security contributions to the ORG .", "NORP In DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an earlyretirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the socalled “ EWK ” pension .", "Along with his application for a pension , the applicant submitted , among other documents concerning his son ’s health condition , a medical certificate issued by a specialist medical centre on DATE . The certificate stated that the child ( born in DATE ) suffered from mild asthma and bronchitis ( astma oskrzelowa lagodna i spastyczne zapalenie oskrzeli ) and that he was in need of his parent ’s constant care .", "On DATE ORG ( “ the FAC ” ) issued a decision granting the applicant the right to an earlyretirement pension as of DATE in the net amount of MONEY ( PLN ) .", "On DATE the ORG asked ORG doctor ( PERSON ) to inform it whether the applicant ’s son required the permanent care of a parent . On DATE the doctor stated that , on the basis of the medical documents , the child could not be considered as ever having required such care .", "On DATE ORG issued simultaneously CARDINAL decisions in respect of the applicant . By virtue of CARDINAL decision , the payment of the applicant ’s pension was discontinued with immediate effect . By virtue of the other decision , ORG reopened the proceedings , revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the DATE Ordinance .", "NORP The applicant appealed against the respective decisions divesting him of the right to an earlyretirement pension . He submitted that he should receive the benefit because his child required constant care , as confirmed by the medical certificate attached to the applicant ’s original application for a pension . Moreover , the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights .", "On CARDINAL DATE ORG ( PERSON ) dismissed the appeal . ORG concluded on the basis of the evidence that the applicant ’s child did not require his father ’s permanent care since his health condition did not significantly impair his bodily functions . The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the DATE Ordinance as he did not satisfy the requirement of necessary permanent care .", "The applicant further appealed against the firstinstance judgment .", "On DATE ORG ( FAC ) dismissed the appeal .", "On DATE ORG ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant .", "Following the social security proceedings the applicant was not ordered to return his earlyretirement benefits paid by ORG , despite the revocation of his right to an earlyretirement pension .", "The applicant submitted that after revocation of the EWK pension he remained unemployed until DATE . During this time he received no social or unemployment benefits . His wife had been employed seasonally as a heating system operator in schools . They owned a farm which was too small to qualify them for the social security scheme for farmers and from which they derived no income .", "The Government submitted that the applicant took up employment in DATE . They failed to specify the amount of his salary . However , after DATE the family ’s yearly income increased from ORG CARDINAL,CARDINAL ( approx . CARDINAL ( ORG ) ) to ORG CARDINAL ( approx . EUR CARDINAL ) . The applicant ’s wife worked DATE during DATE only . The Government maintained that the applicant ’s wife also owned a small farm which might have constituted an additional source of income .", "In addition , the ORG submitted information as regards the various types of social benefits available in GPE . However , they did not specify which of those benefits , if any , were available in the applicant ’s situation .", "NORP Under the relevant laws currently in force , it appears that the applicant will qualify for a regular retirement pension in DATE .", "CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The majority of the applicants form ORG ( ORG przez ZUS ) ( “ the Association ” ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .", "Out of all applications lodged with the ORG , about twentyfour applicants decided not to lodge a cassation appeal against the judgment of ORG given in their case .", "One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases . ORG entertained and dismissed on the merits DATE appeals . In eightyone applications ORG refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require ORG to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts . In the remaining CARDINAL cases cassation appeals were rejected for failure to comply with various procedural requirements .", "NORP The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of GPE GPE , no . CARDINAL , § CARDINAL , DATE .", "NORP The social security scheme for farmers is regulated by ORG the DATE LAW ; ustawa o ubezpieczeniu społecznym rolników ) .", "The reopening of the proceedings concerning the earlyretirement pension is regulated in section CARDINAL ( CARDINAL ) of LAW DATE on the system of social insurance ( Ustawa o systemie ubezpieczeń społecznych ) , which at the relevant time read as follows :", "“ The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered . ”", "On DATE a new subparagraph CARDINAL ( CARDINAL ) a was added , which reads as follows :", "“ Section CARDINAL shall apply respectively , if , after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension , disability pension or its amount . ”", "A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a judicial decision of a secondinstance court . A party had to be represented by an advocate or a legal adviser .", "Article CARDINAL of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged . It read as follows :", "“ The cassation appeal may be based on the following grounds :", "CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;", "CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”", "Pursuant to LAW , having allowed a cassation appeal , could quash the challenged judgment in its entirety or in part and remit the case for reexamination . Where ORG failed to find nonconformity with the law , it dismissed the cassation appeal . According to Article CARDINAL if the cassation appeal was wellfounded ORG could also amend the impugned judgment and adjudicate on the merits .", "On DATE the ORG made an application to ORG , asking for section CARDINAL § CARDINAL of the Law of DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych ) ( “ the DATE LAW ) to be declared unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . More specifically , the ORG submitted that the introduction of an agelimit in respect of persons taking care of a child , which in essence amounted to a deprivation of the right to a benefit , constituted a violation of the principle of equality set forth in LAW .", "On DATE ORG ( KCARDINAL/CARDINAL ) declared the impugned section CARDINAL § CARDINAL of the DATE Law unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . ORG reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits .", "On DATE the ORG made an application to ORG , asking for CARDINAL ( CARDINAL)(a ) of the DATE Law to be declared unconstitutional in so far as it allowed the ORG to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted .", "On DATE ORG ( GPE declared the impugned section CARDINAL ( CARDINAL)(a ) of the DATE Law unconstitutional in so far as it allowed the ORG to reopen such proceedings following a new assessment of evidence which had already been submitted ." ]

[ "P1" ]

[ "P1-1" ]

[ "P1-1-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .", "On DATE the applicant arrived at the NORP ORG of GPE to meet with the president of that court . It appears that the applicant attempted to enter the president ’s waiting room ahead of the queue of visitors causing their dissatisfaction . The president ’s assistant called an usher who invited the applicant to leave the waiting room and to wait in the corridor . As the applicant refused to comply , the usher forced him out and drew up a report stating that the applicant had committed an offence punishable under LAW of LAW , that is , disobeyed the usher ’s order aimed at maintaining public order on the court ’s LOC .", "According to the applicant , he was unable to meet the president of the court on DATE as a result of those events .", "On DATE the applicant lodged a claim against the bailiffs’ service with ORG . It appears that he sought compensation for non - pecuniary damage .", "In a decision of CARDINAL DATE the NORP ORG declined to examine the applicant ’s claim , stating that it fell outside its territorial jurisdiction and that the applicant should apply to ORG of GPE . ORG of GPE also declined to examine the applicant ’s claim in a decision of DATE , stating that it fell within the jurisdiction of ORG .", "In a letter of DATE the prosecutor ’s office of LOC of GPE informed the applicant that they had examined his complaint and established that the usher ’s actions had been lawful and that he had acted within his competence .", "On DATE the applicant again filed a claim with ORG . It appears that he complained that he had endured emotional and physical suffering as a result of the usher ’s actions on DATE and requested that the court hold the usher liable under administrative and criminal law and to award the applicant compensation for non - pecuniary damage .", "On DATE the Savelovskiy ORG declined to examine the applicant ’s claim , stating that it could not be examined in civil proceedings , as the applicant had asked the court to hold the usher liable for abuse of power , that is , for a criminal offence . The court noted that the applicant should thus lodge his request with a prosecutor ’s office .", "On DATE ORG upheld the above decision on appeal .", "Article CARDINAL of LAW of DATE provides that decisions and actions or lack of action of state bodies , bodies of local self - government , public associations and officials may be appealed against in court .", "LAW provides for the right to be compensated by the state for damage caused as a result of the unlawful actions ( or omission ) of state bodies and their officials .", "Article CARDINAL of the NORP Civil Code provides that compensation in respect of non - pecuniary damage is payable only in the event that physical or psychological damage has been inflicted on a person in violation of his rights ." ]

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[ "The applicant was born in DATE and lives in GPE .", "NORP In DATE the GPE I / ORG charged the applicant with disorderly conduct and vandalism , punishable by DATE of imprisonment .", "ORG held hearings on DATE , DATE and DATE . On the latter date it found the applicant guilty of vandalism and fined him MONEY ( ORG ) ( MONEY ( ORG ) ) . ORG relied on documentary evidence , the opinion of an expert , and the testimony of witnesses and the applicant .", "The applicant appealed , seeking acquittal on the ground that the judgment was ill - founded , and requested the court to hold a public hearing . The GPE Chief prosecutor also appealed , and requested the court to quash the first - instance judgment and remit the case to ORG because of shortcomings in the finding of facts .", "ORG notified the applicant ’s lawyer that it would determine the appeal sitting in camera . In reply , the lawyer put forward supplementary arguments and again requested the court to hold a public hearing .", "On DATE ORG held a session in camera and upheld the applicant ’s conviction . The applicant , his lawyer and the prosecutor were absent .", "ORG reviewed the entirety of the proceedings and established their lawfulness . Furthermore , it considered that the findings of fact by the first - instance court were not ill - founded within the meaning of section CARDINAL(CARDINAL ) of LAW , and were thus suitable for an appellate review without taking further evidence .", "NORP However , ORG , relying on the existing case file , modified the findings of fact as established by the first - instance court . When delivering its judgement , it relied on the modified facts .", "Act no . ORG of DATE on the [ New ] Code of Criminal Procedure provides , in so far as relevant , as follows :", "“ ... ( CARDINAL ) An appeal may concern questions of fact or law . ”", "“ ( CARDINAL ) The second - instance court shall base its decision on the facts as established by the first - instance court unless the first - instance judgment is ill - founded ....", "( CARDINAL ) The first - instance judgment is ill - founded if :", "a ) the facts have not been explored ;", "b ) the first - instance court has failed to establish the facts or the findings of fact are deficient ;", "c ) the findings of fact are in contradiction with the contents of the documents ;", "d ) the first - instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact . ”", "“ ... ( CARDINAL ) In order to eliminate the ill - foundedness of the first - instance judgment , evidence may be taken if the findings of fact have not been established or are deficient . Evidence shall be taken ... at a hearing . ”", "“ ( CARDINAL ) Within DATE of receiving the file , the president of the panel in charge shall schedule , in order to deal with an appeal , deliberations in camera ( tanácsülés ) , a public session ( nyilvános ülés ) or a hearing ( tárgyalás ) . ... ”", "“ ( CARDINAL ) The second - instance court shall hold a public session , if – the first - instance judgment being ill - founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions , or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence .", "( CARDINAL ) The second - instance court shall summon to the public session those persons whose hearing it deems necessary ... ”", "“ ( CARDINAL ) The second - instance court shall notify the public prosecutor and DATE if they are not summoned -– ... the defendant and his lawyer of the public session . ... ”", "“ ( CARDINAL ) In order to take evidence , a hearing ( tárgyalás ) ... shall be scheduled . ”", "“ ( CARDINAL ) The court ’s final decision on the merits is susceptible to a [ ORG ] review ( felülvizsgálat ) if ...", "c ) the decision has been adopted amidst procedural irregularities within the meaning of section CARDINAL(CARDINAL ) subparagraphs II to PERSON . ”" ]

[ "6" ]

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

[ "6-3-c" ]

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[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .", "NORP The facts of the case , as submitted by the applicant , may be summarised as follows .", "NORP In DATE the applicant married PERSON The couple had a son O. , born on DATE . The family lived together until DATE when the applicant took ORG and moved back to her old house . On DATE , after a scuffle with the applicant , PERSON took ORG from her and from that time onwards maintained the actual custody over the child .", "On DATE the applicant filed a petition for divorce . At ORG ( PERSON ) request , on DATE CARDINAL experts of ORG ( Rodzinny Ośrodek PERSON , hereinafter : FAC ) gave an expert opinion , in which they pointed to O. ’s clear entanglement in the strong marital conflict between the applicant and PERSON The experts observed that PERSON was being strongly influenced by his father and that many of his statements were “ induced ” statements deprecating the applicant whom the child perceived very negatively . They found the existing family situation to be detrimental to the child and proposed to separate him temporarily from both parents and place him in a health resort ( sanatorium ) . They moreover advised the court to consider the supervision of the family situation by an appointed court guardian ( kurator sądowy ) .", "On CARDINAL DATE the ORG specified the access arrangements , allowing the applicant to visit O. once a week for TIME at PERSON ’s house and under the supervision of a court guardian . On DATE ORG ( Sąd Apelacyjny ) dismissed the applicant ’s appeal , holding that the access arrangements specified by ORG were reasonable .", "At the court hearing held on DATE , an expert of ORG recommended that the applicant ’s contacts with O. take place in a neutral place instead of the father ’s house . Consequently , on DATE ORG provisionally changed the access arrangements , allowing the applicant to meet PERSON on DATE in a fast - food restaurant under the supervision of a court guardian . Due to unspecified organisational problems , CARDINAL of the CARDINAL planned meetings took place .", "On DATE ORG permanently changed the access arrangements , allowing the applicant to see O. once a week for TIME in a fast - food restaurant under the supervision of a court guardian . On DATE ORG dismissed the applicant ’s appeal , finding that the right of access was primarily the right of the child and not that of the applicant . The ORG noted that the child apparently did not wish to see the applicant and pointed to the applicant ’s lack of patience and her unwillingness to cooperate with the supervising court guardian .", "At the hearing held on DATE , the court guardian informed the court that during the meetings in the restaurant ORG had not wanted to see the applicant without his father ’s presence .", "At ORG request , on DATE the FAC prepared another opinion . The opinion stated that the reason for O. ’s aversion to the applicant had been his father ’s behaviour . The experts noted that the child was under the strong influence of his father and reacted hysterically to the applicant ’s presence . They urged the court to suspend O. ’s meetings with the applicant and to undertake steps aimed at improving their mutual relations . The opinion moreover recommended placing the child under psychological assistance and stated that the child ’s father should be persuaded to participate in the meetings with a psychologist in order to correct his attitude .", "On DATE the applicant requested the court to change the access arrangements and allow her to meet O. at her own home . On DATE ORG dismissed her request , holding it to be premature , on account of ORG recommendation that the applicant ’s contacts with ORG be temporarily suspended . ORG noted that ORG clearly did not wish to see his mother and that it would be contrary to the child ’s best interests if the meetings were to take place at the applicant ’s home .", "On DATE ORG dismissed the applicant ’s appeal . ORG observed that ORG should issue appropriate decisions in view of the expert findings indicating the child ’s father ’s incorrect parental behaviour . ORG urged ORG to consider changing the access arrangements and , in particular , to consider the possibility of allowing the applicant to meet her son without the father ’s presence , under the supervision of the court guardian , in order to improve the relations between the applicant and the child . It further noted that it would be detrimental to the child ’s emotional health if the existing situation were to persist .", "On DATE the ORG dissolved the applicant ’s marriage without attributing the fault to either party . The court awarded custody rights to PERSON , finding that O. demonstrated strong affection for his father who , in the court ’s view , offered better prospects for the proper exercise of custody . The court restricted the applicant ’s custody rights over O. , holding her to have been an inept mother who in the past had largely neglected O. ’s education . ORG further decided that the access arrangements would be specified by ORG , hereafter : ORG ) in PERSON . The divorce court also held that placing O. in a health resort ( sanatorium ) would only constitute a temporary remedy while putting him in a foster family would be contrary to his best interests , given his affection for , and dependence on , his father .", "The applicant did not appeal against the divorce decision and it subsequently became final .", "In DATE the Director of ORG informed the applicant that her DATE meetings with O. would be TIME long and take place on the LOC of ORG . It appears that no psychologist has ever assisted in the meetings .", "In DATE the Director of ORG requested the court to discharge ORG from the duty to organise the applicant ’s meetings with O. , due to the child ’s and his father ’s visible unwillingness to comply with the access arrangements . The Director explained that from the very outset the meetings had met with difficulties and that from DATE O. had no longer been coming to the meetings .", "On DATE ORG ( Sąd Rejonowy ) ordered PERSON to comply with the access arrangements , on pain of a fine in the amount of ORG CARDINAL ( approx . ORG CARDINAL ) being imposed on him . PERSON ’s appeal was dismissed by ORG on DATE . It appears that PERSON has since then complied with the access arrangements and brought O. to the meetings with the applicant .", "On DATE the applicant requested the court to fine PERSON once more for his non - compliance with the access arrangements . The applicant argued that ORG would only briefly appear at the meetings and not talk to her , after which he would leave ORG and be driven home by his father or grandfather .", "On DATE ORG dismissed her request , finding that PERSON had complied with the access arrangements by bringing O. to the meetings and that he could not be blamed for O. ’s own reluctance to see the applicant . On DATE ORG dismissed the applicant ’s appeal . In passing , ORG expressed a view that the child was clearly being harmed , a circumstance which both parents PERSON and the applicant alike – refused to admit .", "On DATE the ORG ex officio issued a temporary order on access arrangements , allowing the applicant to meet O. at her home DATE for TIME and for TIME on GPE DATE . The applicant ’s appeal was dismissed by ORG on DATE .", "At LOC request , on DATE ORG in GPE issued another expert opinion . Without giving any excuse , the applicant did not appear at either of the CARDINAL interviews with ORG experts . The experts found that in DATE the applicant had been absent from ORG ’s life and that ORG ’s attitude towards her was hostile . They noted that ORG did not wish to see the applicant and they recommended a temporary suspension of their contacts . The experts moreover recommended that psychological assistance be given to ORG with a view to analysing and rectifying his relations with the applicant . At the same time , they criticised the applicant for her inability to deal with her role as a mother and observed that her motivation for having access to her son appeared to be superficial .", "On DATE ORG dismissed the applicant ’s renewed request for changing the access arrangements . It noted that ORG had come to the applicant ’s home on several occasions and invited her out for a walk or for coffee but that the applicant , to O. ’s disappointment , had shown no flexibility and insisted that the meetings only take place at her home . ORG concluded that the applicant ’s inflexible stance did not warrant changing the access arrangements . The applicant ’s appeal was dismissed by ORG on DATE .", "At the applicant ’s request filed on DATE , on DATE ORG ordered PERSON to comply with the access arrangements , on pain of a fine in the amount of ORG CARDINAL ( approx . ORG CARDINAL ) being imposed on him , as the applicant had had no effective access to ORG since DATE .", "On DATE the ORG ex officio changed the access arrangements , deciding that the venue of the applicant ’s contacts with O. was to be a local café instead of the applicant ’s house . ORG recognised that O. was disappointed with the applicant ’s lack of flexibility as to the venue of the meetings and it acknowledged the findings of an expert psychologist , according to which ORG ’s attitude towards the applicant was now genuinely his own and no longer influenced by his father . The applicant ’s appeal was rejected by ORG on formal grounds on DATE .", "On DATE the ORG refused the applicant ’s request to fine PERSON for non - compliance with the access arrangements , finding the applicant to be at fault for the unsuccessful meetings with NORP on account of her bringing other members of her family to the meetings without seeking ORG ’s prior consent . The applicant ’s appeal was dismissed by ORG on DATE .", "According to the applicant , ORG , who is now DATE , currently does not come to the meetings with her or appears at the meetings in the café but stays for no longer than half an hour , instead of TIME specified by the access arrangements . On several occasions , the applicant unsuccessfully requested the court to change the venue of the meetings with ORG back to her house .", "If the court obliges a parent exercising custody rights to ensure access by the other parent to the child , LAW ( ORG postępowania cywilnego ) is applicable to the enforcement of this obligation .", "Article CARDINAL provides , in so far as relevant :", "“ 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 the 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 being imposed on him .", "If the debtor fails to comply with this obligation , further time - limits may be fixed and further fines may be imposed by the court . ”" ]

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[ "The applicant was born in DATE and is currently in prison in GPE .", "On DATE the applicant was sentenced by a ORG to a total of CARDINAL years’ imprisonment for conspiracy to supply Class A drugs and CARDINAL offences of possession of a Class A drug with intent to supply .", "On DATE , while on bail pending trial , the applicant suffered a brain haemorrhage for which he underwent surgery . On DATE he underwent further surgery . Following his discharge to prison , he required monitoring and was required to go to hospital DATE for a specialist check - up by a neuro - radiologist .", "In DATE the applicant was held in a high - security prison which held Category A ( high - risk ) prisoners as well as Category B prisoners such as himself . As a result , he fell within the provisions of a general order , ORG ( PSO ) CARDINAL , which applied to all prisoners of whatever security category who were being held in a unit which held Category A prisoners ( see paragraph CARDINAL below ) .", "The applicant wished to correspond confidentially with his external medical specialist to ensure that he would receive the necessary medical treatment and supervision in prison . He expressed his concerns about his medical correspondence with his external medical specialist being read and applied to the prison governor for a direction that such correspondence should be accorded confidentiality .", "On DATE the governor of the prison in which the applicant was being detained agreed to the applicant ’s request . It was decided that the applicant ’s medical correspondence would not be read provided that certain conditions were met . All outgoing and incoming mail was to be marked “ medical in confidence ” . Outgoing correspondence would be checked to ensure that it was being sent to a nominated address and incoming mail was to be marked with a distinctive stamp of the relevant health authority .", "NORP The prison governor subsequently reconsidered his decision after seeking advice from ORG . On DATE the prison governor informed the applicant that he had been advised that it was necessary to examine his medical correspondence for illicit enclosures . All correspondence between the applicant and his external medical specialist would be directed , unopened , to the prison medical officer . The latter would examine the content of the envelope in order to ascertain its medical status and then reseal it . Incoming and outgoing correspondence would then be sent to the applicant and his external medical specialist respectively .", "NORP The applicant contested the decision to monitor his medical correspondence . He was concerned that his attempts to confirm that he was receiving adequate treatment in hospital might be regarded by the prison medical officer as criticism and that this might inhibit his relationship with his external medical specialist .", "On DATE the applicant applied for leave to apply for judicial review of the prison governor ’s decision of CARDINAL DATE . On DATE the presiding High Court judge , Mr Justice PERSON , allowed the applicant ’s claim for judicial review .", "ORG had submitted , inter alia , that it would be difficult to make the necessary arrangements to permit medical correspondence to remain confidential . They argued that there were a large number of health bodies with which a prisoner might wish to correspond and that some health bodies might lack franking machines that would enable prisons to identify the authenticity of the sender .", "Mr Justice PERSON concluded that there were exceptional circumstances in the applicant ’s case . The exceptional circumstances were said to be the life - threatening nature of the applicant ’s condition and his desire to ensure that his treatment in prison did not affect him adversely . The applicant , understandably , wanted to obtain reassurance from the medical specialist who was involved in treating him and from whom he required continual medical care , in the form of DATE specialist observations . Mr ORG also found that the initial decision of the prison governor to enable the applicant to correspond on a confidential basis with his external medical specialist indicated that it was reasonable to permit such confidential correspondence . The evidence of ORG as to the practical problems involved in making arrangements to enable confidential medical correspondence were not directly material in an exceptional case such as the present one .", "In the circumstances , and emphasising that this was a case which turned on its own exceptional facts , Mr Justice PERSON considered it appropriate to quash the prison governor ’s decision of DATE . He granted the applicant a declaration that “ the governor of whatever prison the [ applicant ] resides [ in ] should make a decision in accordance with the principles made in light of this judgment ” .", "On DATE ORG allowed the appeal by the Secretary of ORG and the prison governor . Lord Justice PERSON gave the judgment of the court . It was noted that there was no dispute that the reading of ORG correspondence was governed by law , and that it was directed to the prevention of crime and the protection of the rights and freedoms of others . The issue to be decided was whether , in the language of LAW , the reading of the applicant ’s correspondence was proportionate . While the prison governor ’s initial decision to allow confidentiality to the applicant ’s medical correspondence with his external medical specialist strongly suggested that its exemption from LAW would be a perfectly reasonable course , the onus still remained on the applicant to establish that anything more invasive would constitute a disproportionate interference with his LAW .", "ORG concluded that although the procedure set out in the prison governor ’s letter of DATE amounted to an interference with the applicant ’s right to respect for his correspondence , the interference was justified and proportionate under LAW . It considered that although it was of course possible to verify the existence , address and qualifications of the applicant ’s external medical specialist ( whose bona fides was not in question ) , there was no way of ensuring that the latter would not be intimidated or tricked into transmitting illicit messages . While the same was true of , for example , the secretarial staff of members of parliament ( MPs ) , the importance of unimpeded correspondence with MPs outweighed the risk . By contrast , as regards correspondence with doctors , the prisoner ’s health was the concern and the immediate responsibility of ORG . Though it may well be the case that allowing the prison medical officer to read the prisoner ’s correspondence with an outside medical practitioner might lead the former to “ encounter criticism of his own performance ” , it was inherently unlikely that this would carry the same degree of risk that might attend the reading by a discipline officer of a letter of complaint to ORG . Moreover , if it related to the prisoner ’s well - being it was probable that the prison medical officer ought in any event to know about it .", "ORG concluded that the monitoring of the applicant ’s medical correspondence was a proportionate interference with his Article CARDINAL rights , although it did not exclude the possibility that in another case it might be disproportionate to refuse confidentiality to medical correspondence in the prison context . ORG based its conclusion on the following factors . Firstly , the monitoring of the applicant ’s medical correspondence answered legitimate and pressing policy objectives which were clearly stated in LAW ( see paragraph CARDINAL below ) . Secondly , short of withdrawing all scrutiny , it considered that there was no less invasive measure available to the prison service . Thirdly , the reading of the applicant ’s medical correspondence which was limited to the prison medical officer was not in its view excessive . Fourthly , the process by which the measure had been decided upon was not found to be arbitrary . In particular , it had not been the result of the rigid application of a policy . The withdrawal of monitoring had not only been considered but had been implemented until , upon reconsideration , monitoring had been resumed . The interference in question had not denied the essence of the applicant ’s LAW as it related to CARDINAL correspondent only ( the external medical specialist ) and it confined the interference to a medically qualified reader ( the prison medical officer ) . It was recognised that there was an inescapable risk of abuse , for example , if the applicant ’s prison life or treatment was made more difficult because of what he was observed to be writing . However , the risk , having been minimised by virtue of confining surveillance to the prison medical officer , was outweighed by the above - mentioned factors .", "On DATE the applicant ’s petition for leave to appeal was refused by ORG on the ground that the petition did not raise an arguable point of law of general public importance .", "NORP Since CARDINAL DATE the applicant has been located in a Category B prison in GPE .", "NORP The Secretary of ORG is responsible for the management of the prison system in GPE and GPE ( Prison Act DATE , sections CARDINAL and CARDINAL ) .", "Until DATE each prison was required to appoint a medical officer ( Prison Act DATE , section CARDINAL(CARDINAL ) ) . The medical officer was a prison officer who had to be a registered medical practitioner ( Prison Act DATE , section CARDINAL ) . This requirement was removed by section GPE ) of LAW DATE which came into force on DATE . Prison health care is now generally integrated with , and commissioned by , ORG ( ORG ) .", "Section CARDINAL(CARDINAL ) of the Prison Act DATE authorises the Secretary of ORG to make rules for the regulation and management of prisons and for the classification , treatment , employment , discipline and control of persons required to be detained therein . Such rules are made by statutory instrument , laid before ORG , and are subject to annulment in pursuance of a resolution of either ORG of ORG ( Prison Act DATE , section CARDINAL(CARDINAL ) and LAW DATE , section CARDINAL ) ) .", "Prisoners are classified in accordance with directions of the Secretary of ORG ( Prison Rules SI CARDINAL/CARDINAL rule CARDINAL(CARDINAL ) ) . Prisoners are classified in accordance with ORG DATE . Paragraph CARDINAL of ORG DATE contains the definitions of the CARDINAL categories of prisoner ( A , B , C and D ) . Category A is applied to prisoners whose escape would be highly dangerous to the public or the police or the security of the ORG , no matter how unlikely that escape might be , and for whom the aim must be to make escape impossible . Category B is applied to prisoners for whom the very highest conditions of security are not necessary , but for whom escape must be made very difficult .", "Rule CARDINAL of ORG is headed “ Communications Generally ” It provides as relevant :", "“ ( CARDINAL ) Without prejudice to sections CARDINAL and CARDINAL of the Prison Act DATE and except as provided by these Rules , a prisoner shall not be permitted to communicate with any person outside the prison , or such person with him , except with the leave of the Secretary of ORG or as a privilege under rule CARDINAL .", "( CARDINAL ) Notwithstanding paragraph ( CARDINAL ) above , and except as otherwise provided in these Rules , the Secretary of ORG may impose any restriction or condition , either generally or in a particular case , upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed DATE", "( a ) does not interfere with the Convention rights of any person ; or", "( b ) ( i ) is necessary on grounds specified in paragraph ( CARDINAL ) below ;", "( ii ) reliance on the grounds is compatible with the Convention right to be interfered with ; and", "( iii ) the restriction or condition is proportionate to what is sought to be achieved .", "( CARDINAL ) The grounds referred to in paragraph ( CARDINAL ) above are –", "( a ) the interests of national security ;", "( b ) the prevention , detection , investigation or prosecution of crime ;", "( c ) the interests of public safety ;", "( d ) securing or maintaining prison security or good order and discipline in prison ;", "( e ) the protection of health or morals ;", "( f ) the protection of the reputation of others ;", "( g ) maintaining the authority and impartiality of the judiciary ; or", "( h ) the protection of the rights and freedoms of any person .", "...", "( CARDINAL) In this rule –", "...", "( c ) references to Convention rights are to the Convention rights within the meaning of LAW DATE . ”", "Rule CARDINAL of the Prison Rules deals with correspondence with legal advisers and courts and provides that such correspondence may only be opened , read or stopped by the prison governor in accordance with the provision of that rule , namely when the governor has cause to believe either that the correspondence contains an illicit enclosure or that its contents endanger prison security or the safety of others or are otherwise of a criminal nature .", "LAW , which was applicable at the relevant time and which dealt with prisoner communications in connection with those who were in Category A prisons , or who were in prisons which held Category A prisoners , provided as follows :", "“ Prison management must provide facilities for prisoners to maintain contact with family and friends . Prisoners’ rights to respect for their private and family life and correspondence are also protected by LAW . ORG duty to protect the public allows us to interfere in this privacy in order to minimise the possibility that , in communicating with the outside world , prisoners :", "( i ) plan escapes or disturbances ;", "( ii ) jeopardise the security and good order of the prison ;", "( iii ) engage in offences against criminal law or prison discipline ;", "( iv ) jeopardise national security ;", "( v ) infringe the rights and freedoms of others . ”", "Chapter CARDINAL of PSO CARDINAL read :", "“ All correspondence , other than correspondence protected by GPE [ that is correspondence with legal advisors ] or that with the Samaritans , must be read as a matter of routine in the following cases :", "( i ) all prisoners of whatever security category , held in a unit which itself holds Category A prisoners . ”", "Chapter CARDINAL continued as follows :", "“ Routine reading is necessary in these cases in order to prevent escape and , in the case of Category A prisoners , in the interests of public safety . It is also necessary in preventing crime and disorder , for the protection of the rights and freedoms of others , and , in some cases , necessary in the interests of national security or the economic well being of the country . ”", "PSO CARDINAL is entitled “ Prisoner Communications : Correspondence ” . It came into operation on DATE . So far as is material to the present case it reflects the practice and procedure in operation from DATE to DATE .", "Special treatment was at the relevant time and still is given to various forms of correspondence apart from that with legal advisers , specifically covered by rule CARDINAL of ORG and that with the NORP , specifically mentioned in LAW . Correspondence with , inter alia , the courts , ORG , ORG , ORG , ORG , ORG , ORG , ORG , ORG and MPs are generally treated as confidential .", "PSO CARDINAL introduced a new category of correspondence subject to confidential handling arrangements . LAW includes ORG as CARDINAL of the bodies with which a prisoner is entitled to correspond confidentially . ORG is the independent watchdog for health care in GPE . It assesses and reports on the quality of services provided by the ORG and the independent health - care sector .", "Chapter III , paragraph CARDINAL of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) standards published in DATE states the following :", "“ While in custody , prisoners should be able to have access to a doctor at any time , irrespective of their detention regime ... The health - care service should be so organised as to enable requests to consult a doctor to be met without undue delay .", "Prisoners should be able to approach the health - care service on a confidential basis , for example , by means of a message in a sealed envelope . Further , prison officers should not seek to screen requests to consult a doctor . ”", "Paragraph CARDINAL of the ORG standards provides :", "“ Medical secrecy should be observed in prisons in the same way as in the community . ... ”" ]

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[ "The applicant was born in DATE and lives in GPE . He is currently a member of ORG .", "On DATE the applicant was elected President of GPE . He took office on DATE , following his inauguration . On that occasion , in accordance with LAW , he took an oath to be loyal to GPE and the LAW , to fulfil the duties of his office conscientiously , and to be equally just to all .", "On DATE the applicant issued Decree no . DATE , countersigned by the Minister of the ORG , granting NORP citizenship “ by way of exception ” ( išimties tvarka ) to a NORP businessman , PERSON , who had been awarded the Medal of PERSON and ORG in DATE by the applicant 's predecessor , PERSON , for services to GPE ( he was subsequently divested of the medal following the events outlined below ) .", "On DATE the Seimas ( ORG ) requested ORG to determine whether Presidential Decree no . DATE was in compliance with the LAW and LAW . The LAW submitted that the procedure of granting citizenship by way of exception appeared to have been applied inappropriately in this case . In particular , it asserted that ORG had no special merit warranting his exceptional treatment and that the applicant had in fact granted him citizenship as a reward for his substantial assistance by financial and other means to the applicant 's election campaign .", "On DATE ORG accepted the request for consideration as case no . CARDINAL . On DATE it held a public hearing and examined witnesses .", "On DATE an article was published in a NORP DATE newspaper , PERSON , reporting that the President of ORG had been seen in a coffee bar with the Deputy Speaker of the Seimas , who had been closely involved in the inquiry into the applicant 's activities . The newspaper implied that during this informal meeting the CARDINAL officials had discussed the proceedings taking place in ORG , thus casting a shadow of suspicion over that court 's objectivity . The CARDINAL men had subsequently said that they often met professionally and socially , and denied discussing the merits of the case .", "Referring to the above - mentioned newspaper article , the applicant 's lawyers challenged the President of ORG for bias , seeking his removal from the examination of case no . CARDINAL . Their challenge was dismissed on the ground that the mere fact that the CARDINAL officials had met informally did not constitute a basis for the withdrawal of a judge from proceedings before ORG .", "On DATE the ORG gave its ruling in case no . CARDINAL , finding that Decree no . DATE was not in compliance with LAW , LAW of the LAW , the constitutional principle of the rule of law and section CARDINAL(CARDINAL ) of LAW .", "On the last point , ORG observed that citizenship could be granted by way of exception only to persons who had never been NORP citizens . It noted in that connection that PERSON , a NORP citizen by birth from a NORP military family , had acquired NORP citizenship under LAW of DATE , by which citizenship could be granted , inter alia , to persons who on DATE had had their permanent residence and permanent place of work or source of income in GPE . In DATE ORG had ruled that “ soldiers of GPE who previously served in the NORP occupying military forces unlawfully stationed in the territory of GPE [ could ] not be regarded as permanently residing and working in GPE ” . On DATE ORG ( established in DATE under LAW for LAW ) had found that ORG 's status was unlawful , since he had served in the NORP armed forces . It had nevertheless recommended that his status be regularised in accordance with the above - mentioned section CARDINAL , by which exceptions could be made for persons who had acquired citizenship in good faith before DATE on that unlawful ground . On DATE ORG of ORG had followed that recommendation . However , in DATE PERSON had applied for NORP citizenship , which he had been granted in DATE ; on DATE he had been issued with a NORP passport , thereby losing his NORP citizenship . ORG observed that the applicant had signed Decree no . CARDINAL on DATE even though ORG of ORG had reminded him DATE before that PERSON had previously lost his NORP citizenship .", "ORG held that , as a result , Decree no . DATE was also in breach of LAW of LAW – which provides that the President is to grant citizenship in accordance with the procedure established by law – and the constitutional principle of the rule of law .", "The Constitutional Court went on to note that , although the NORP authorities had already made an exception in his favour by regularising his status in DATE , ORG had acquired NORP citizenship in DATE . This showed that “ citizenship of GPE was of less value to [ J.B. ] than citizenship of the GPE ” . ORG further noted that ORG had informed the applicant , prior to DATE , that an investigation was being carried out into PERSON 's activities as director of an aviation company and , on DATE , that ORG had threatened to disseminate information discrediting the applicant if the latter failed to keep his promise to appoint him as an adviser . In ORG view , the applicant had knowingly ignored these circumstances , although they were of crucial importance in deciding whether or not to grant citizenship to PERSON by way of exception . Having regard also to the fact that PERSON had made a significant financial contribution to the applicant 's election campaign , it concluded that the decision to grant him citizenship had been “ determined not by any merit rendering [ J.B. ] worthy of becoming a citizen of GPE , but by his significant assistance by financial and other means to [ the applicant 's ] election campaign in DATE ” . Thus , “ the granting of citizenship to [ J.B. ] by way of exception was nothing but a reward by the President of GPE to [ J.B. ] for the aforesaid support ” ; consequently , in issuing Decree no . DATE , the President had heeded “ neither the LAW ... nor the law , nor the interests of the people and the ORG , but purely his own interests ” . The court therefore concluded that the applicant had “ afforded [ J.B. ] exceptional treatment and knowingly disregarded the fundamental principles enshrined in LAW and LAW respectively , whereby all persons are equal before ORG institutions or officials , and the President of the Republic must be equally just to all ” .", "In a public speech on DATE , and again in his New Year speech , the applicant declared that “ politics [ had ] taken precedence over the law ” in ORG ruling . In reply , on DATE ORG issued a public statement emphasising its independence and noting , inter alia , that the applicant had attempted to undermine its authority .", "On DATE , CARDINAL members of the Seimas submitted a proposal to initiate impeachment proceedings against the applicant . On DATE the ORG set up a special commission to investigate the reasonableness and seriousness of certain allegations about the applicant 's conduct , in order to determine whether such proceedings should indeed be initiated .", "On DATE the special investigation commission concluded that some of the charges levelled against the applicant were founded and serious . Accordingly , it recommended that the NORP institute impeachment proceedings . ORG had apparently provided the commission with transcripts of secretly taped telephone conversations involving the applicant . The applicant 's lawyers were not given access to the transcripts by the ORG or by the commission , because it had decided not to rely on them .", "Also on DATE the Seimas decided to follow the special investigation commission 's recommendation and requested ORG to determine whether the specific acts of the applicant cited by the commission had breached LAW . The impeachment charges submitted to ORG included the following allegations in particular , involving purely private interests to the detriment of those of the nation , thus discrediting the institution of the presidency :", "– that the applicant had undertaken to perform a number of actions in ORG 's favour in exchange for financial and other forms of support during his election campaign , and had later acted under PERSON 's influence ;", "– that , as a reward for this support , the applicant had unlawfully granted NORP citizenship to ORG ;", "– that he had disclosed a ORG secret by informing PERSON that the secret services were investigating his activities , notably by telephone tapping ; and", "– that he had exercised undue pressure on the management decisions of a private company in order to secure pecuniary advantages for certain people close to him .", "On DATE ORG accepted the request for consideration as case no . CARDINAL .", "The applicant 's lawyers sought the removal of the President of ORG and all its members on grounds of bias , arguing that they had in effect already determined the case in the previous ruling of DATE in case no . CARDINAL . The challenge was dismissed .", "In a declaration of CARDINAL DATE the ORG unsuccessfully proposed that the applicant tender his resignation in order to avoid protracted impeachment proceedings . The declaration alleged that his actions had become increasingly unpredictable and represented a danger to the ORG , its citizens and the prestige of the presidency .", "On DATE ORG concluded that the applicant had committed gross violations of the LAW and a breach of his constitutional oath on account of the following acts :", "DATE unlawfully granting citizenship to J.B. by Decree no . CARDINAL as a reward for the latter 's financial and other forms of support , in breach of section CARDINAL(CARDINAL ) of LAW and LAW § CARDINAL , LAW CARDINAL § CARDINAL of the LAW ;", "– knowingly hinting to ORG , in breach of sections CARDINAL(CARDINAL ) , CARDINAL ) and CARDINAL ) of LAW and LAW and LAW , that the law - enforcement institutions were investigating him and tapping his telephone conversations ; and", "– exploiting his official status to influence decisions by the ORG keliai company concerning the transfer of shares with a view to defending the property interests of certain private individuals close to him , in breach of section CARDINAL of ORG in LAW and LAW , LAW and LAW .", "The applicant sought clarification of these conclusions under section CARDINAL of LAW , but his request was refused by ORG on DATE on procedural grounds .", "On DATE the ORG decided to remove the applicant from the office of President on account of the gross violations of the LAW found by ORG . Its decision was taken by CARDINAL votes to CARDINAL for the first breach , CARDINAL votes to CARDINAL for the second and CARDINAL votes to CARDINAL for the third .", "The applicant wished to stand as a candidate in the presidential election called for DATE . On DATE ORG ( ORG ) found that there was nothing to prevent him from standing . By DATE the applicant had gathered the required number of signatures in support of his candidacy , and submitted them to the ORG with a view to his registration as a candidate .", "NORP However , on DATE the Seimas amended LAW by inserting the following provision :", "“ A person who has been removed from parliamentary or other office by the LAW in impeachment proceedings may not be elected President of the LOC if less than DATE have elapsed since his removal from office . ”", "Following this amendment , the ORG refused to register the applicant as a candidate in the forthcoming election . The applicant lodged a complaint with ORG on DATE , arguing in particular that that decision thwarted the legitimate expectations of his supporters and ran counter to the principles of the rule of law and the prohibition of retrospective legislation .", "On an unspecified date , a number of members of the ORG requested ORG to review the constitutionality of the amendment to LAW , arguing that barring a person who had been removed from office from running for election as President was in itself in breach of the LAW . The request was registered as case no . CARDINAL .", "ORG held on DATE that disqualifying a person who had been removed from office from standing in presidential elections was compatible with the LAW , but that subjecting such a restriction to a time - limit was unconstitutional . The court held , inter alia :", "“ ... ORG has held that a breach of the oath is , at the same time , a gross violation of the LAW , while a gross violation of LAW is , at the same time , a breach of the oath to the nation ( ORG ruling of CARDINAL DATE ; ORG conclusion of DATE ) ...", "A gross violation of the LAW or a breach of the oath undermines trust in the institution of the presidency and in ORG authority as a whole ... Removal from office of a president who has grossly violated the LAW or breached the oath is one of the ways of protecting the ORG for the common good of society , as provided for in the LAW .", "It needs to be stressed that , under LAW , a person in respect of whom the Seimas – following a finding by ORG that he , as President , has committed a gross violation of the LAW and breached the oath – has applied the constitutional sanction , namely removal from office , may not evade constitutional liability through fresh presidential elections , a referendum or any other means ...", "The LAW does not provide that , after a certain time has elapsed , a president whose actions have been recognised by ORG as having grossly violated the LAW , and who has been found to have breached the oath and has been removed from office by the LAW [ on that account ] ... , may [ subsequently ] be treated as though he had not breached the oath or committed a gross violation of the LAW ... [ A person ] ... who has been removed from office by the Seimas , the body representing the people , will always remain someone who has breached his oath to the nation and grossly violated the LAW , and who has been dismissed as President for those reasons ...", "[ A person removed from the office of President ] may never again ... give an oath to the nation , as there would always exist a reasonable doubt ... as to its reliability ...", "Impeachment is a form of public and democratic scrutiny of those holding public office , a measure of self - protection for the community , a ... defence against high - ranking officials who disregard the LAW and laws ...", "Where a person has been removed from the office of President ... for a gross violation of the LAW or a breach of the oath ... he may never again be elected President of the Republic [ or ] a member of the LAW ; [ he ] may never hold office as ... a member of the Government , [ or ] ORG , that is , [ he ] may not hold an office provided for in LAW for which it is necessary to take an oath in accordance with LAW ... ”", "On DATE ORG dismissed the applicant 's complaint against the decision of the ORG , referring , inter alia , to ORG ruling of CARDINAL DATE . It noted in particular :", "“ ... It appears from the reasoning of ORG that ... the applicant has forfeited the right to be elected President with effect from DATE . Therefore , he ... can not take part in the election announced on DATE ...", "Until it was amended on DATE , LAW did not specify the [ residual ] rights of a person who had forfeited the right to be elected President .", "Article CARDINAL § CARDINAL of the LAW provides that LAW is directly applicable ... [ I]t follows that , from the moment ... the applicant submitted his candidacy for the election , his situation was governed by LAW , which , as ORG has found , bars [ a person removed from the office of President ] from standing in presidential elections . In these circumstances ... there has been no breach of the principle of the prohibition of retrospective legislation ... ”", "On DATE the Seimas passed an amendment to LAW , to the effect that any official who had been removed from office following impeachment proceedings was disqualified from being a member of parliament .", "In DATE the Prosecutor General discontinued the investigation into allegations that while in office , the applicant had abused his authority in relation to a private company ( LAW ) .", "On an unspecified date the applicant was charged with disclosing information classified as a ORG secret ( LAW ) . On DATE ORG acquitted him for lack of evidence . On DATE ORG reversed that decision , finding the applicant guilty . It held , however , that owing to new circumstances , namely the applicant 's removal from office as President and disqualification from elected office , it was reasonable to discharge him from criminal liability and to discontinue the criminal proceedings . On DATE ORG quashed ORG judgment , upholding the acquittal delivered by ORG .", "On account of his threat to disseminate information discrediting the applicant if he failed to keep his promise to appoint him as an adviser ( see paragraph CARDINAL above ) , PERSON was convicted of having , for his own benefit and “ by means of mental coercion , required a civil servant or person in a position of public authority to carry out or refrain from certain actions ” ( LAW ) . He was fined CARDINAL NORP litai , equivalent to MONEY ( judgments of the GPE City DATE ORG of DATE , ORG of DATE , and ORG of DATE ) .", "ORG has jurisdiction to review the constitutionality and lawfulness of the acts of the President ( Articles CARDINAL , CARDINAL and CARDINAL of the LAW ) . Acts of the President cease to have legal effect if ORG rules that they are in breach of LAW ( LAW ) .", "Decisions of ORG have statutory force and are final ( LAW ) . The power of ORG to declare a legal act unconstitutional may not be circumvented by the subsequent adoption of a similar legal act ( section CARDINAL of LAW ) .", "In addition , ORG may be called upon to determine whether certain acts of a president against whom impeachment proceedings have been instituted are in breach of LAW ( Article CARDINAL of the LAW ) . No appeal lies against the court 's conclusions ( section CARDINAL(CARDINAL ) of LAW ) . However , the final decision on the sustainability of allegations giving rise to impeachment proceedings is taken by the Seimas on the basis of ORG conclusions ( LAW of LAW ; see also below ) .", "Article CARDINAL of the LAW provides that , in discharging their duties , the judges of ORG act independently of any other ORG institution , person or organisation , and are guided only by LAW .", "Section CARDINAL of LAW provides that a judge of ORG may withdraw or be removed from a case if he or she , inter alia , is a relative of CARDINAL of the parties to the case or has publicly declared how it should be decided .", "DATE LAW provides that the President of GPE is immune from any criminal liability while in office . However , LAW , he or she may be removed from office following impeachment proceedings , inter alia for a gross violation of the LAW or a breach of the constitutional oath . The decision is taken by the LAW ( LAW ) .", "In accordance with Articles CARDINAL and CARDINAL of the Statute of the Seimas , impeachment is a parliamentary procedure aimed at determining the constitutional liability of the highest - ranking officials , such as the President of the Republic or members of parliament , for acts carried out while in office which undermine the authorities ' credibility . Impeachment proceedings may be initiated by CARDINAL of the members of the Seimas where such an official is alleged to have committed a gross violation of the LAW and/or a breach of the constitutional oath and/or is suspected of committing a criminal offence ( Articles CARDINAL and CARDINAL of the Statute of the Seimas ) . They are to be conducted in accordance with the rules of criminal procedure ( LAW ) .", "Having received a petition for impeachment , the ORG sets up a special investigation commission , which sits in private ( LAW ) and hears evidence from the parties to the procedure , witnesses and experts , in accordance with the rules of criminal procedure ( LAW ) . It reports its findings to the LAW as to whether there are grounds to institute impeachment proceedings ( LAW ) . If the Seimas – sitting in public – considers that such grounds exist , it passes a resolution to initiate the proceedings , requesting ORG to determine whether the acts of the person indicated in the impeachment charges are in breach of LAW ( LAW and LAW ) . On the basis of ORG conclusions ( LAW ) , the ORG conducts an inquiry ( likewise observing the basic rules of criminal procedure ) and ultimately decides whether the person against whom the proceedings have been brought should be removed from office for a gross violation of the LAW , on the basis of the available evidence and testimony ( Articles CARDINAL to CARDINAL and CARDINAL of the Statute of the Seimas ; Article CARDINAL and LAW ) .", "In its ruling of DATE , in which it set out its conclusions in case no . CARDINAL ( see paragraph CARDINAL above ) , ORG provided the following clarifications :", "“ ... The provision of LAW of the LAW whereby decisions of ORG on issues within its competence are final and not subject to appeal also means that when deciding whether or not to remove the President from office , the Seimas may not reject , change or question ORG conclusion that specific acts of the President are ( or are not ) in breach of the LAW . No such powers are assigned to the LAW by the LAW . [ Such a ] conclusion ... is binding on the LAW in so far as the LAW does not empower it to decide whether ORG conclusions are well - founded and lawful ; only the [ Constitutional ] Court can establish that the actions of the President are ( or are not ) in breach of the LAW .", "Under LAW , only the Seimas may remove the President from office for a gross violation of the LAW .", "Thus , the LAW assigns the LAW and the ORG different functions in impeachment proceedings , and confers on them the respective powers necessary to discharge those functions : ORG decides whether specific acts of the President are in breach of the LAW and submits its conclusions to the LAW ( LAW , point ( CARDINAL ) , of the LAW ) , whereas the LAW , in the event that the President has committed a gross violation of the LAW , decides whether or not to remove him from office ( LAW ) ... Under LAW of LAW , the Seimas is empowered to decide whether to remove the President from office , but not to determine whether his acts are in breach of the LAW .", "It should be noted that this constitutional provision whereby only ORG is empowered to decide ( through its conclusions on the matter ) whether specific acts of the President are in breach of the LAW represents a further guarantee for the President that his constitutional liability will not be incurred unreasonably . Thus , if ORG reaches the conclusion that the President 's acts are not in breach of the LAW , the Seimas may not remove him from office for a gross violation of the LAW ... ”", "In addition to possible constitutional liability , a person removed from public office may incur ordinary liability ( teisinė atsakomybė ) .", "According to ORG ruling of CARDINAL DATE on the compliance of LAW with LAW , “ the constitutional sanction applied in the context of impeachment proceedings is of an irreversible nature ” . In the same ruling ORG also stated that fair - trial principles applied in impeachment proceedings , meaning that the persons charged “ must have the right to be heard and a legally guaranteed opportunity to defend their rights ” .", "Article CARDINAL of the LAW provides :", "“ Any citizen of GPE who is not bound by an oath or pledge to a foreign State , and who , on the date of the election , is CARDINAL of age and permanently resident in GPE , may be elected as a member of the Seimas .", "Persons who have not completed a sentence imposed by a court , and persons declared legally incapable by a court , may not be elected as members of the LAW . ”", "As mentioned above , on DATE the Seimas amended LAW by inserting the following provision :", "“ A person who has been removed from parliamentary or other office by the LAW in impeachment proceedings may not be elected President of the LOC if less than DATE have elapsed since his removal from office . ”", "Following ORG ruling of CARDINAL May CARDINAL ( see paragraph CARDINAL above ) , the Seimas passed an amendment to LAW , to the effect that any official who had been removed from office following impeachment proceedings was disqualified from being a member of parliament .", "The LAW further provides :", "“ ... Newly elected members of the ORG shall acquire all the rights of a representative of the nation only after taking an oath before the Seimas to be loyal to GPE .", "Members of the LAW who do not take the oath according to the procedure established by law , or who take a conditional oath , shall forfeit their parliamentary office ... ”", "“ Any person who is a NORP citizen by birth , who has lived in GPE for DATE preceding the election , is DATE on DATE of the election and is eligible for election as a member of the Seimas may be elected President of the Republic .", "The President of the Republic shall be elected by the citizens of GPE for a DATE term by universal , equal and direct suffrage by secret ballot .", "The same person may not be elected President of the Republic for CARDINAL consecutive terms . ”", "“ Any citizen of GPE who satisfies the conditions set forth in the first paragraph of Article CARDINAL and has collected the signatures of CARDINAL voters shall be registered as a candidate for the office of President .", "There shall be no limit on the number of candidates for the office of President . ”", "Article CARDINAL of the LAW provides :", "“ The newly elected President of the Republic shall take office ... after swearing an oath to the nation in GPE , in the presence of the representatives of the people , namely the members of the Seimas , to be loyal to GPE and the LAW , to fulfil the duties of his office conscientiously , and to be equally just to all .", "A person re - elected President of the Republic shall also take the oath .", "The record of the oath taken by the President of the Republic shall be signed by him and by the President of ORG or , in the latter 's absence , by another judge of ORG . ”", "Pursuant to section CARDINAL of LAW , the newly elected President takes the following oath :", "“ I ( name and surname )", "Swear to the nation to be loyal to GPE and the LAW , to observe and enforce the law , and to protect the integrity of NORP territory ;", "I swear to fulfil conscientiously the duties of [ presidential ] office , and to be equally just to all ;", "I swear to strengthen the independence of GPE , to the best of my ability , and to serve my homeland , democracy and the welfare of the people of GPE ... ”", "DATE of the LAW provides that “ [ a]ll persons shall be equal before the law , the courts , and other ORG institutions and officials . ” LAW of the LAW states that the President “ shall grant citizenship of GPE in accordance with the procedure established by law ” .", "Section CARDINAL(CARDINAL ) of LAW provides that the President may grant NORP citizenship by way of exception – that is , without applying the usual eligibility requirements – to foreign citizens of special merit rendering them worthy of becoming a citizen of GPE .", "Articles DATE and CARDINAL of the LAW read as follows :", "“ The right to initiate legislation in the NORP shall be vested in members of the Seimas , the President of the Republic and the Government .", "ORG shall also have the right to initiate legislation . A PERSON may be brought before the Seimas by CARDINAL citizens with the right to vote , and the Seimas must consider it . ”", "“ Within DATE of receiving a law passed by the Seimas , the President of the Republic shall either sign and officially promulgate the law , or shall send it back to the Seimas , with reasoned observations , for reconsideration .", "If a law passed by the ORG is not sent back or signed by the President within the prescribed period , the law shall enter into force after it has been signed and officially promulgated by the Speaker of the Seimas .", "The President of the Republic must , within DATE , sign and officially promulgate any laws or other instruments adopted by referendum .", "If such a law is not signed and promulgated by the President within the prescribed period , the law shall enter into force after it has been signed and officially promulgated by the Speaker of the Seimas . ”", "The relevant passages of ORG adopted by ORG ( “ the GPE Commission ” ) at its CARDINALst session ( DATE ) read as follows :", "“ I. Principles of LOC 's electoral heritage", "The CARDINAL principles underlying LOC 's electoral heritage are universal , equal , free , secret and direct suffrage . Furthermore , elections must be held at regular intervals .", "Universal suffrage", "Rule and exceptions", "Universal suffrage means in principle that all human beings have the right to vote and to stand for election . This right may , however , and indeed should , be subject to certain conditions :", "a. Age ...", "b. Nationality ...", "c. Residence ...", "d. Deprivation of the right to vote and to be elected :", "i. provision may be made for depriving individuals of their right to vote and to be elected , but only subject to the following cumulative conditions :", "ii . it must be provided for by law ;", "iii . the proportionality principle must be observed ; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them ;", "iv . the deprivation must be based on mental incapacity or a criminal conviction for a serious offence ;", "v. furthermore , the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law . ... ”", "ORG , adopted by ORG at its CARDINALnd session ( DATE ) , reads as follows ( footnote omitted ) :", "“ ... provision may be made for clauses suspending political rights . Such clauses must , however , comply with the usual conditions under which fundamental rights may be restricted ; in other words , they must :", "– be provided for by law ;", "– observe the principle of proportionality ;", "– be based on mental incapacity or a criminal conviction for a serious offence .", "Furthermore , the withdrawal of political rights may only be imposed by express decision of a court of law . However , in the event of withdrawal on grounds of mental incapacity , such express decision may concern the incapacity and entail ipso jure deprivation of civic rights .", "The conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them , as the holding of a public office is at stake and it may be legitimate to debar persons whose activities in such an office would violate a greater public interest . ... ”", "NORP The term “ impeachment ” denotes a formal indictment procedure whereby the legislature may remove from office a head of ORG , a senior official or a judge for breaching the law or LAW . The purpose of impeachment is in principle to allow the institution of criminal proceedings in the courts against the person concerned , but in practice it does not necessarily produce such an outcome .", "The legal systems of the majority of ORG member GPE with a republican system make specific provision for the impeachment of the head of ORG ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” , GPE and GPE ) . Impeachment proceedings may be instituted on the following grounds ( for GPE , see paragraph CARDINAL above ) : breach of the LAW or undermining of the constitutional order ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” ) ; high treason ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE ) ; breach of the law ( GPE , GPE ) ; an ordinary or serious criminal offence ( GPE , GPE ) ; or immoral conduct ( GPE ) .", "In most of these republics , impeachment proceedings have no direct effects on the electoral and other political rights of a head of ORG who is removed from office . However , in GPE , if the Federal President is removed from office following impeachment proceedings , ORG may order the temporary forfeiture of “ political rights ” if there are particularly aggravating circumstances . Similarly , in GPE the special court with competence in such matters may , in addition to removing the President from office , temporarily deprive him or her of certain political rights ( general disqualification from standing for election for a period of DATE , prohibition from occupying certain positions for a similar period and revocation of orders and other honorary titles ) . In GPE and GPE , a person removed from presidential office as a result of impeachment proceedings permanently forfeits the right to stand for election as President but may be a candidate in any other elections ; in GPE he or she is barred only from standing in the presidential elections called as a result of his or her removal from office ." ]

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[ "The first applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The second applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . The applicants are siblings .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "As part of the general restitution process by which confiscated land is returned to its previous owners ( or their heirs in title ) , the applicants became the owners of QUANTITY ( ha ) of forestry land . A title deed for CARDINAL ha was issued on DATE and CARDINAL for CARDINAL ha and QUANTITY . m was issued on DATE . These areas of land were included within the boundaries of FAC ( “ the national park ” ) by virtue of a governmental decision of DATE .", "The applicants lodged an application with the forestry inspectorate to be granted approval for the exploitation of QUANTITY of timber , using the clear - cutting method ( “ metoda tăierii rase ” ) . Their request was approved on DATE . Subsequently they lodged a similar request with the management authorities of the national park . By letter of CARDINAL DATE their request was denied , with the reasoning that clearcutting was contrary to the legislation governing the management of protected areas .", "The applicants lodged a complaint with ORG relying on the provisions of a ministerial order . The order provided that , until the adoption of a management plan for each protected area , some forms of felling were allowed in national parks .", "By a judgment of DATE ORG dismissed their action as unsubstantiated . Their appeal on points of law was dismissed by ORG on DATE . The appellate court noted that , up to that date , no management plan had been adopted for the national park . Nevertheless , even if the authorities were at fault for not having adopted the said plan , which should have set conditions for the exploitation of forest applicable to that national park , the applicants could still seek compensation for the restrictions imposed on the use of their land , either on the basis of Government Emergency Ordinance CARDINAL/CARDINAL on the protection of natural areas and the conservation of natural habitats and wild flora and fauna ( “ the Ordinance ” ) or on the basis of common law .", "NORP By letter of CARDINAL DATE ORG of ORG and Forests informed the applicants that only CARDINAL ha of their land was in a special protection area . The remaining surface of CARDINAL ha was in a buffer zone and no compensation was provided by law for this type of land . In seeking to exploit the forest resource on their land , the applicants were advised to follow the same procedure as the one they had already used : asking for approval from the forestry inspectorate and then from the management authorities of the national park .", "LAW ( PERSON ) was adopted on DATE . It forbids in its LAW the use of the clear - cutting method in the national parks .", "Government Emergency Ordinance no . CARDINAL/CARDINAL sets out in its LAW the different protected areas in natural parks and the different activities that are allowed in each of these areas . In the special protection areas , only scientific and educational activities and ecological tourism are allowed , provided that the latter does not require any facilities to be built . PERSON felling is prohibited in these areas but the owners can collect the wood and other resources that derive from ecological reconstruction and rehabilitation of the forest or from natural accidents . In the buffer zones , any tree cutting needs to be carried out in accordance with the restrictions set by the park ’s management plan and by the guidelines for forest management within protected areas . In addition , several other activities are allowed , such as ecological tourism or traditional use of renewable sources .", "Article CARDINAL of the GPE provides the following :", "“ ( CARDINAL ) NORP forestry land located within a protected natural area which is owned by private individuals [ ... ] , the owners [ ... ] shall receive compensation for complying with the restrictive provisions of the management plan for the relevant protected area . The mechanisms for submitting a request [ for compensation ] and for calculating and granting compensation shall be established by a government decision .", "( CARDINAL ) Until the adoption of a management plan [ for their area ... ] , the managers of the relevant protected area have a duty to draw up a set of conservation measures , which may necessitate the granting of compensation , and to submit this information to ORG within DATE from the date of taking over the management of the protected area ... ”", "Ministerial Order CARDINAL/CARDINAL of ORG , Forests , Water and the Environment allows some forms of tree felling in the buffer zones of the national parks , even before the adoption of a management plan for the park .", "NORP The NORP Minister of Agriculture , Forestry and ORG and the Minister of ORG jointly adopted a ministerial order establishing the methodology for calculating the compensation to be paid to legal persons who own forest land subject to special protective measures . The order provides for compensation for restrictions on the use of forest land included in the special protection areas .", "NORP The management plan for ORG was adopted on an unspecified date , in DATE at the earliest ." ]

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[ "The applicant , ORG , is a NORP national who was born in DATE and lives in Batman . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was a driver working for the NORP telecom at the time of the events . On DATE the applicant was arrested by gendarmes at FAC . The applicant claims that he had been beaten during his interrogation at FAC .", "According to the medical report drafted and issued by a doctor at ORG on DATE , the applicant did not bear any physical signs of ill - treatment .", "On DATE the applicant was transferred over to ORG where he was held for DATE . He alleges that during this time he was subjected to torture , insults and death threats .", "On DATE the applicant was taken before a doctor at ORG for a medical examination . According to the medical report he did not bear any physical signs of ill - treatment .", "On DATE , the applicant was brought before the Batman public prosecutor where he denied the statements he had given to the gendarmes . He claimed that he had been forced to carry supplies to the ORG because PERSON ORG had threatened his life and that of his children .", "On DATE , the applicant appeared before ORG where he denied the statements he had given to the gendarmes and claimed to have signed his deposition under duress . The court ordered his release . The public prosecutor objected to this decision .", "The applicant claimed that despite the court ’s order for release , he had been taken back to ORG and was subjected to constant beatings .", "On DATE ORG Instance ordered the applicant ’s remand in custody .", "According to the medical report of CARDINAL DATE the applicant did not bear any physical signs of ill - treatment .", "On DATE the public ORG office at ORG filed a bill of indictment with the latter , accusing the applicant of aiding and abetting an illegal organisation . The public ORG office requested that the applicant be convicted and sentenced under LAW .", "On DATE ORG , following the erratic behaviour of the applicant during questioning , ordered the transfer of the applicant to ORG in order to establish whether he was mentally fit . The applicant ’s representative claimed that the applicant ’s state of mental health had suffered as a result of the treatment he had received in custody .", "On DATE the applicant was committed to ORG for treatment . According to the medical report drafted by the doctors at ORG , the applicant was diagnosed as suffering from an anxiety reaction .", "On DATE ORG issued a report stating that the applicant was suffering from an anxiety reaction . He was released from the hospital DATE .", "On DATE the applicant filed a petition with the ORG public ORG office requesting that the gendarmes at the Batman Gendarmerie Commandership be prosecuted for ill - treatment .", "On DATE the public ORG office , after having heard a neurology expert , issued a decision of nonprosecution on account of lack of evidence . According to the doctor ’s testimony , it was impossible to determine at what date the applicant ’s disturbance commenced and that it was possible to have this kind of disturbance in healthy persons . Moreover the doctor concluded that similar symptoms could also be found in a football fan whose team had lost a match .", "The applicant filed an objection with ORG against the decision of the public prosecutor . He stated that he had lost his mental health as a result of the ill - treatment he had been subjected to during his interrogation . He submitted that the decision of non - prosecution was given without an adequate investigation since the public prosecutor had not heard to some of the witnesses .", "On DATE ORG , referring to the time elapsed between the dates of the alleged offence and that of the complaint , the medical report of DATE and testimonies of witnesses and that of the expert , dismissed the applicant ’s objection . This judgment was served on the applicant on DATE .", "The criminal proceedings against the applicant were pending at the time of the application . No further information or documents were submitted in respect of these proceedings .", "A description of the relevant domestic law at the material time can be found in GPE and others v. GPE ( nos . CARDINAL and QUANTITY , § § CARDINAL , ORG CARDINALIV ( extracts ) ) ." ]

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[ "ORG of PERSON ) in GPE is the cathedral of the NORP Catholic diocese of GPE . Built in DATE , it adjoins a former ORG convent and it has been used as a place of worship continuously since DATE . The building was acquired by the church by adverse possession ( ektakti khrissiktissia ) .", "NORP In DATE CARDINAL people living next to the church , PERSON and Mr PERSON , demolished one of its surrounding walls , which was QUANTITY high , and made a window looking onto the church in the wall of their own building .", "On DATE the church , represented by the abbot , the Right Reverend PERSON , applied to ORG seeking a declaration that it was the owner of the wall in question and orders that the defendants must cease the nuisance and restore the previously existing situation , that the judgment should be provisionally enforceable and that the defendants should be liable to a fine of MONEY and CARDINAL months’ imprisonment if they did not comply with the judgment .", "The defendants raised an objection to admissibility on the ground that NORP churches in GPE had no legal personality and were thus prevented from bringing legal proceedings .", "The plaintiff church answered the objection by stating that it was a cloister church , founded and authorised before DATE and recognised under LAW DATE . More particularly , it stated that it was a ORG cloister that had been authorised before DATE and belonged to the diocese of GPE and PERSON , which did have legal personality ( aftotelia ) .", "On DATE ORG held that the wall was owned by the church and ordered the defendants to rebuild it to its original height . As to the objection to admissibility , the court held that it was unfounded , accepting the plaintiff church ’s submissions , which – it found – were substantiated by the papal seal of DATE that was in the file ; the court also noted that the abbot was the manager of its wealth and was therefore entitled to represent it in legal proceedings .", "The defendants appealed against that judgment to ORG of First Instance on DATE .", "On DATE ORG , allowing the appeal , quashed the judgment of the court below for the following reasons :", "“ …", "The provisions of LAW of DATE , which remains in force by virtue of LAW No . CARDINAL annexed to LAW DATE , require GPE to ensure LOC freedom of religion , freedom of worship and equality before the law irrespective of their religious denomination – freedoms which are , moreover , guaranteed in DATE , DATE and CARDINAL of the current LAW but do not provide that religious or other establishments founded by a religious minority may acquire legal personality without complying with the ORG ’s laws on the acquisition of legal personality . Furthermore , LAW adopted by the protecting powers on DATE , and ratified in GPE by ORG Memorandum of DATE , … did not confer on the bishops of ORG any jurisdiction other than spiritual and administrative , that is to say relating to that ORG ’s domestic order , and the provisions of the canon law that governs ORG which attribute legal personality to convents and other ORG establishments founded by decisions of the bishops of that ORG were not adopted .", "In the instant case ORG of the Capuchins , whose date of foundation is not apparent from the evidence , did not acquire legal personality from the sole fact of being founded by the competent bishop in GPE without the formalities laid down in NORP laws on the acquisition of legal personality having been complied with . Consequently , they have no legal standing and their action must be dismissed for that reason in accordance with LAW . The failure to comply with the ORG ’s laws on the acquisition of legal personality is admitted by the plaintiffs themselves . It must be noted that even if this church was founded before DATE , it accordingly did not acquire legal personality , having failed to comply with the laws of the ORG .", "… ”", "On DATE the church appealed on points of law , alleging a breach of LAW of CARDINAL DATE taken together with ORG DATE , LAW , LAW , ORG CARDINAL and CARDINAL of the LAW .", "In his opinion of DATE the reporting judge of ORG indicated that he thought the judgment of CARDINAL DATE should be quashed ; he pointed out that under LAW NORP nationals belonging to religious minorities enjoyed the same protection in law and in fact and the same safeguards as other NORP nationals and , in particular , had an equal right to establish religious foundations and practise their religion freely ; furthermore , under the canon law of ORG , churches , convents and monasteries established with the approval of ORG had legal personality without it being necessary to comply with the formalities laid down in NORP laws . Such a restriction would be contrary to LAW .", "In a judgment of DATE ORG dismissed the appeal in the following terms :", "“ …", "[ LAW ] , having been ratified in a statute , was kept in force as domestic law , but inasmuch as its content is covered by ORG , which is much wider in scope , the treaty must be regarded as having been abrogated by this subsequent Convention , which pursues the same objective . However , the special provisions of the treaty which are not reproduced in LAW and do not conflict with it must be regarded as still being in force . By means of the Convention Greece protects , inter alia , the religious freedom not only of minorities but of any person within its jurisdiction , irrespective of religion , national origin , membership of an ethnic minority , etc . LAW , which provides for freedom to practise any ‘ NORP religion and for freedom to perform religious obligations without hindrance , likewise corresponds to the content [ of the Convention ] .", "Regard being had to the foregoing , it is clear that the above - mentioned provisions guarantee to religious minorities freedom of religion , freedom of worship and religious equality and , by extension , the right to found religious associations and establishments , which acquire legal personality as of right but only after complying with the ORG ’s laws on such acquisition … It is even provided ( in LAW ) that the religious convictions of minorities can not constitute a legal ground exempting them from complying with the above - mentioned laws on the acquisition of legal personality , which , by the first sentence of LAW of LAW , is a condition of being able to bring or defend legal proceedings … Consequently , if LAW , whereby everyone is entitled to seek legal protection from the courts , is to apply , the above - mentioned statutory conditions must be satisfied . Furthermore , since section CARDINAL of the Introductory Law to LAW … provides that only legal persons ‘ lawfully DATE at the date of adoption of the Civil Code continue to exist , the court below rightly held that LAW did not apply in the instant case as the formalities required by GPE ’s laws for the acquisition of legal personality had not been complied with by the appellants . ”", "The relevant Articles of the LAW provide :", "Article CARDINAL", "“ CARDINAL . The dominant religion in GPE is that of ORG . ORG , which recognises as its head Our Lord PERSON , is indissolubly united , doctrinally , with FAC of GPE and with any other ORG in communion with it ( omodoxi ) , immutably observing , like the other Churches , the holy apostolic and synodical canons and the holy traditions . It is autocephalous and is administered by ORG , composed of all the bishops in office , and by the standing ORG , which is an emanation of it constituted as laid down in GPE and in accordance with the provisions of LAW of DATE and LAW DATE .", "The ecclesiastical regime in certain regions of the ORG shall not be deemed contrary to the provisions of the foregoing paragraph .", "The text of ORG is unalterable . No official translation into any other form of language may be made without the prior consent of the autocephalous ORG and ORG at GPE . ”", "LAW", "“ CARDINAL . Freedom of conscience in religious matters is inviolable . The enjoyment of personal and political rights shall not depend on an individual ’s religious beliefs .", "There shall be freedom to practise any known religion ; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law . The performance of rites of worship must not prejudice public order or public morals . Proselytism is prohibited .", "The ministers of all known religions shall be subject to the same supervision by the ORG and to the same obligations to it as those of the dominant religion .", "No one may be exempted from discharging his obligations to the ORG or refuse to comply with the law by reason of his religious convictions .", "No oath may be required other than under a law which also determines the form of it . ”", "Section CARDINAL of the Introductory Law to the Civil Code provides :", "“ Legal persons that were lawfully constituted at the date of adoption of LAW [ DATE ] shall continue to exist . As regards their legal capacity , administration or functioning , the relevant provisions of the Code shall apply . ”", "Article CARDINAL of the Civil Code gives the following definition of a legal person in general :", "“ A union of persons for the purpose of pursuing a given aim or a group of assets assigned to the service of a given aim may acquire legal personality if the requirements laid down by law are satisfied . ”", "The legal persons provided for in LAW are associations ( Articles CARDINAL et seq . ) , foundations ( Articles CARDINAL et seq . ) and charitable fundraising committees ( Articles CARDINAL et seq . ) . Non - commercial partnerships only acquire legal personality after taking the publicity measures laid down by law for commercial partnerships ( Articles CARDINAL et seq . and LAW . It must also be noted that LAW makes the provisions on partnerships applicable to unions of persons that have been created to pursue a given aim but are not associations ( LAW ) .", "By DATE , “ A person who has the capacity to possess rights and be bound by obligations shall also be entitled to bring or defend legal proceedings . Unions of persons which pursue a specified aim without being associations and also partnerships that do not have legal personality may bring or defend legal proceedings . ”", "This concept of a union of persons seems to approximate to the concept of a common - interest group in NORP law , since the courts have applied the concept to co - ownership of a seagoing vessel , to a political party and to an association of co - owners of a building .", "Section CARDINAL ( CARDINAL ) of PERSON no . PERSON on GPE confers personality in public law on ORG and on a number of its institutions , at least as regards “ their legal relations ” .", "Article CARDINAL of LAW of DATE provides :", "“ NORP nationals who belong to racial , religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other NORP nationals . In particular they shall have an equal right to establish , manage and control , at their own expense , charitable , religious and social institutions , schools and other educational establishments , with the right to use their own language and to exercise their religion freely therein . ”", "NORP The applicant church annexed to the memorial it filed with the ORG a series of judgments given by the highest courts in the land which , it submitted , substantiated its assertion that neither the legal personality of ORG in GPE nor its capacity to bring or defend legal proceedings had ever been called in question . The decisions were the following :", "( a ) judgment no . CARDINAL/CARDINAL of ORG , in which the court held that the appropriate NORP bishop represented the legal person of ORG and its parish churches in legal proceedings for the protection of their property , and did so by virtue of the NORP canon law , which was wholly applicable in GPE in so far as it did not conflict with any provisions of national law ;", "( b ) judgment no . CARDINAL/CARDINAL of ORG , in which the court ruled similarly , holding that the canon law of ORG had been recognised in LAW DATE “ as having the force of law ” in GPE ;", "( c ) judgment no . CARDINAL/CARDINAL of ORG , in which the court held that it was for the PERSON to appoint local administrators of ORG property and , moreover , that there was no need for NORP parish churches “ once established and lawfully in existence , to obtain permission from the ORG authorities to acquire [ their ] legal personality ” ;", "( d ) judgment no . CARDINAL of ORG of LOC , in which it was held that NORP parish churches were represented by persons appointed by the PERSON , according to canon law ;", "( e ) judgment no . CARDINAL/CARDINAL of ORG ( the first to be given on the subject after LAW of DATE had come into force ) , in which the court held that legal persons constituted before DATE were accorded full recognition under section CARDINAL of the Introductory Law to LAW ; as regards , more specifically , ORG foundations in GPE , it was held in the same judgment that NORP bishops had “ special ” power to constitute them by means of a unilateral decision , without any need for that decision to take any particular form or to be subject to any prior authorisation ;", "( f ) judgment no . CARDINAL of ORG , whereby that court recognised the legal personality of the NORP convent of PERSON on the island of ORG , established by law in DATE and to which was attached the NORP school operating in GPE under the same name ;", "( g ) judgment no . DATE of a full court of ORG , whereby the court recognised the legal personality of the parish church of PERSON the GPE on the island of ORG in a case of expropriation in the public interest ;", "( h ) judgment no . CARDINAL of ORG of LOC , delivered in a case of unlawful interference with the rights of possession and ownership of the same parish church of the island of GPE , whose capacity to bring and defend legal proceedings was formally confirmed .", "On the other hand , following judgment no . CARDINAL/CARDINAL delivered by ORG in the present case , ORG dismissed an action brought jointly by ORG and the applicant church for recovery of possession of a rented property , holding that the plaintiffs had no standing as they did not have legal personality ( judgment no . ORG ) .", "The Government cited a judgment of ORG ( no . CARDINAL/CARDINAL ) in which it was held that a monastery founded in DATE by a decision of the NORP bishop of GPE had not by virtue of that fact alone acquired legal personality . ORG said :", "“ LAW adopted by the protecting powers on DATE , and ratified in GPE by ORG Memorandum of DATE , … was intended to ensure that the NORP living in GPE enjoyed freedom of religion and freedom of worship and it did not confer on the bishops of ORG any jurisdiction other than spiritual and administrative , that is to say relating to that ORG ’s domestic order , and the provisions of the canon law that governs ORG which attribute legal personality to convents and other ORG establishments founded by decisions of the bishops of that ORG were not adopted . The legal personality of ORG establishments is a question which does not relate to worship or the ORG ’s domestic order but primarily concerns the legal order of the ORG and consequently can not exist unless it is recognised by law . ”", "Lastly , in a judgment ( no . DATE ) of DATE ORG held that the abbot of a monastic establishment of ORG is empowered to represent it in legal proceedings concerning its property without the written authorisation of the local bishop as provided in canon DATE .", "According to the applicant church , numerous notarial acts to which ORG of GPE and/or NORP parish churches , duly represented by authorised agents in accordance with NORP canon law , were parties unequivocally attest that as regards their property , the churches’ legal personality has never been challenged . By way of example , it has produced the following documents :", "( a ) contract of sale no . CARDINAL/CARDINAL , whereby ORG , duly represented by the Archbishop of the NORP , purchased QUANTITY of land in the GPE suburb of GPE . Attached to this contract is an ORG certificate dated DATE confirming that the contract was registered according to the rules in force ;", "( b ) contract of sale no . CARDINAL/CARDINAL , whereby the applicant church , duly represented , purchased a shop in the centre of GPE ;", "( c ) contract of sale no . CARDINAL , whereby ORG , duly represented , purchased a QUANTITY building in the centre of GPE . Attached to this contract is an ORG certificate dated DATE confirming that the contract was registered according to the rules in force ;", "( d ) contract of sale no . DATE , whereby the applicant church sold to the city council of GPE QUANTITY of land in the city centre ; in this document the church of GPE was represented by its bishop , appointed by papal decree ;", "( e ) contract of sale no . DATE , whereby the applicant church , expressly described as a private - law entity and a religious foundation of ORG , purchased a flat in the GPE suburb of PERSON ;", "( f ) contract of sale no . DATE , whereby ORG sold a flat in GPE which it had acquired by gift in DATE . This notarial act mentions ( i ) the foundation of the vendor cathedral in DATE by unilateral act of the Bishop of GPE and ( ii ) the papal bull of DATE whereby its representative was appointed according to the rules of NORP canon law . Attached to this contract is an ORG certificate dated DATE confirming that it was registered according to the rules in force .", "In all these contracts it is expressly stated that the appropriate transfer tax was duly paid ; and the contracts were all registered with the appropriate mortgage registries . Furthermore , as may be seen from the tax returns duly completed and submitted by the applicant church for DATE and DATE , its rent income from its properties , including some of the abovementioned properties , was exempt from income tax because of the landlord ’s status as a religious legal entity .", "In addition , CARDINAL inheritance certificates issued by the clerk of ORG on an application by ORG ( the first certificate ) and the NORP parish church of GPE on the island of GPE ( the second certificate ) attest that these churches were recognised as the sole heirs of persons who died in DATE and DATE ." ]

[ "14", "6" ]

[ "6-1" ]

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[ "The first applicant , Mr PERSON , was born in DATE . The second applicant , Mr PERSON , was born in DATE . Both of them live in GPE .", "On DATE the applicants concluded agreements with the ORG city council whereby each applicant would acquire an apartment in a building that the local authority was obliged to build by CARDINAL DATE . The applicants undertook to cover the costs of construction by paying the sums specified in the agreement . They paid their respective contributions by the date agreed in the contract .", "On DATE the applicants brought a court action , alleging that the local authorities had failed to complete the construction in time . They requested an order obliging the defendant to complete the works and provide them with property certificates . After the completion of the construction works on DATE , the applicants withdrew the former claim .", "The PERSON city council lodged a counter - claim , requesting annulment of the agreements concluded with the applicants , claiming that its administrative division had lacked competence to enter into a contract with the applicants and that the costs of the construction had been incorrectly estimated . The local authority did not request restitution , but suggested that the applicants should cover the additional building costs .", "On DATE ORG dismissed the applicants’ case .", "On DATE ORG quashed the decision , returning the case for a fresh examination . It was noted that the lower court had failed to summon all the parties and that not all the", "On DATE the court ordered an expert examination ( documentary audit ) regarding the municipality ’s actions when accepting the contributions from the applicants for the construction of the apartments .", "On DATE one of the applicants addressed ORG requesting it to urge the experts to finish the examination and produce their conclusions .", "NORP The expert examination was completed on DATE . The next hearing took place on DATE .", "On DATE ORG allowed the counter - claims of the local authorities in part . The applicants were ordered to cover the additional construction costs . Upon receipt of the payment , the GPE council was obliged to issue the applicants the documents allowing them to register their titles to the apartments .", "On DATE ORG partly amended the decision .", "On DATE ORG amended the decisions of the lower courts , fully allowing the applicants’ claims . It was established that the GPE council was not entitled to require the applicants to cover the additional costs . It was ordered to perform the agreement by issuing the applicants the documents which would allow them to register the apartments in their names .", "On DATE and on CARDINAL DATE the GPE municipality issued the documents attesting that the applicants had paid the full amount for the apartments constructed under the agreement of DATE .", "On DATE and CARDINAL DATE the applicants registered their titles to the apartments and , under domestic law , became their owners .", "Article CARDINAL § CARDINAL of LAW , in force until DATE , stipulated that , subject to any contrary legal provision , the purchaser acquired the right of ownership to property from the time of transfer . As regards real estate , the transfer agreement had to be registered in ORG and the time of registration was regarded as the time from which the acquirer acquired title to the property .", "Article CARDINAL of LAW , in force since DATE , provides that civil liability arises from non - performance of a statutory duty or from a violation of the general duty of care . The remaining relevant domestic law as concerns domestic remedies for the excessive length of civil proceedings is reproduced in the judgment of ORG and Others v. PERSON ( no . CARDINAL , § § DATE , DATE ) ." ]

[ "6" ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE , a town in LOC .", "On DATE the applicants , a lawyer and a driver for a private company , both of NORP origin , were driving back from a business trip when the first applicant felt extreme abdominal pain . He soon felt feverish and dizzy . The applicants decided to stop in the town of GPE in the Republic of GPE on their way and go to a hospital .", "NORP However , in GPE the applicants were stopped by the police ( acting in the course of a special operation named “ NORP [ FAC ] - Anti - terror ” ) , allegedly beaten up , handcuffed and brought to a temporary detention centre at LOC police station ( ORG г. PERSON ) for identification purposes .", "On DATE charges of hooliganism were brought against the applicants .", "On DATE the applicants’ detention was extended on account of their alleged vagrancy and begging .", "On TIME CARDINAL September CARDINAL the applicants were transferred to a Republic of Mordoviya Interior Ministry specialised detention centre ( приемник распределитель ORG республики ORG ) .", "According to the first applicant , throughout his detention from DATE to CARDINAL DATE he constantly asked for medical help . However , the police officers refused his requests . Several times during that period an ambulance was called for him , and the ambulance doctors ( among them doctor PERSON ) confirmed that his state of health required urgent hospitalisation and treatment .", "Finally , on DATE the first applicant , unconscious , was taken to the city hospital ( CARDINAL-я городская больница г. PERSON ) . He was diagnosed with gangrenous perforated appendicitis which had led to peritonitis and he underwent emergency surgery . Throughout his stay in the hospital armed guards were posted at his bedside and at the door to his room .", "According to the Government , following the applicants’ transfer to the specialised detention centre on DATE , an ambulance was called for the first applicant upon his request . On DATE the first applicant was hospitalised in the city hospital with a diagnosis of “ acute gangrenous perforated appendicitis ” , on which an operation was performed immediately .", "On an unspecified date the charges against the applicants were dropped .", "On DATE the second applicant was released .", "On DATE , prior to the expiration of the post - operative period , the first applicant was allegedly forced to leave the hospital .", "The first applicant was later diagnosed with ruptured sutures and other post - operative complications which resulted in him having to undergo several other operations and in his disability . The doctors concluded that the exacerbation of the applicant ’s illness and the post - operative complications had been directly caused by his belated hospitalisation and surgery .", "The first applicant provided the ORG with the documents listed below .", "( i ) A medical assessment issued by surgeon NORP from ORG no . CARDINAL dated DATE , which reads as follows :", "“ [ The applicant ] ... is being monitored and [ is ] periodically undergoing inpatient and outpatient treatment for his condition resulting from acute gangrenous perforated appendicitis , caecitis , seropurulent diffuse peritonitis and [ an ] appendectomy complicated in the post - operative period by suture sinuses , adhesive obstruction of [ the ] abdominal cavity and secondary bowel dyskinesia .", "Analysing the [ applicant ’s ] medical history and [ the ] complications which he subsequently developed and which fundamentally affected [ his ] health , it is possible to [ understand ] the disease pattern .", "On DATE whilst under arrest in the temporary detention centre at the LOC police station in GPE , GPE , [ the applicant ] felt acute abdominal pain . However , despite repeated examinations by the ambulance doctors and their urgent requests for [ the applicant ’s ] hospitalisation in the surgical unit of GPE town hospital due to acute symptoms [ pertaining to his ] abdominal cavity and [ the ] increasing deterioration of [ his ] state of health , the [ applicant ] was not taken to hospital .", "Only on DATE , in a serious condition , was [ he ] taken to the surgical unit of ORG and urgently operated upon . The early post - operative period was complicated by after - surgery wound disruption [ and the ] appearance of suture sinuses in the abdominal cavity , which necessitated a surgical procedure – a laparotomy [ performed ] on DATE [ ... ] . The latter part of the post - operative period was complicated by [ the ] development of moderately severe peritoneal commissures in the abdominal cavity [ and ] secondary bowel dyskinesia , as a result of which within a short interval on DATE and on DATE [ the applicant ] was hospitalised in ORG no . CARDINAL with adhesive obstruction .", "From DATE [ the applicant ] underwent a [ procedure to ] establish [ the extent of his ] disability .", "In view of the foregoing , it is possible to conclude that the exacerbation of the [ applicant ’s ] main disease [ ... ] resulting in complications [ ... ] was directly caused by belated surgical treatment and connected with [ the ] prevention by the police officers of [ the ] provision to [ the applicant ] of timely medical assistance . ”", "( ii ) Notarized statements with similar contents issued by surgeons NORP of ORG no . CARDINAL ( dated DATE ) and PERSON of ORG no . CARDINAL . ( dated DATE ) .", "( iii ) Various other medical documents confirming the applicant ’s operations and subsequent medical treatment .", "On DATE the first applicant complained to ORG of the Republic of GPE of his and the second applicant ’s unlawful detention on DATE and alleged that violence had been used against them by the police officers . The applicant made no specific complaints relating to his allegedly belated hospitalisation for surgery .", "Following an inquiry into the facts complained of by the first applicant , on DATE ORG of the Republic of GPE refused to institute criminal proceedings against the police officers in the absence of any indication that a criminal act had been committed .", "On DATE the inquiry materials were destroyed following the expiry of the time - limit for their storage .", "On DATE and DATE the first applicant challenged the lawfulness of the actions of the police officers before the internal security department of ORG . The facts complained of were found to be unsubstantiated .", "The first applicant subsequently appealed against the refusal to institute criminal proceedings to ORG in GPE , ORG of the Republic of GPE and to ORG . The results of their inquiries into the applicant ’s allegations were held to have not established the grounds required for the institution of criminal proceedings against the police officers .", "On DATE the applicants brought proceedings against ORG and ORG , seeking compensation for pecuniary and non - pecuniary damage resulting from their unlawful detention and the first applicant ’s belated hospitalisation for surgery .", "On DATE ORG of GPE partly granted the ORG claims , declared that their arrest and detention had been unlawful and awarded them MONEY each in respect of non - pecuniary damage . The court further concluded that the applicants’ allegations of ill - treatment had not been substantiated and that there had been no causal link between the actions of the police and the surgical treatment received by the first applicant .", "The applicants appealed . The first applicant claimed , in particular , that ORG had failed to question the ambulance doctor , PERSON , who had examined him and had insisted , in vain , on his urgent hospitalisation . He further claimed that , although his condition had not itself been caused by the actions of the police officers , the severe impact on his health resulting from his belated hospitalisation and surgery had undeniably been directly caused by the actions of the police officers . He relied on the medical documents contained in the case file outlining the complications he had suffered after the first belated operation and also attesting to the ensuing operations .", "On DATE ORG upheld the judgment on appeal .", "Article CARDINAL § CARDINAL of LAW of GPE provides that damage caused to a person or property of a citizen shall be compensated in full by the tortfeasor . Pursuant to LAW , a ORG agency or a ORG official shall be liable to a citizen for damage caused 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 ." ]

[ "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "NORP She brought civil proceedings against her local authority requesting arrears of child benefits due to her .", "On DATE ORG of GPE granted her claims and awarded her the arrears in the amount of MONEY ( RUR ) . The judgment was not appealed against and became final on DATE .", "On DATE a writ of execution was issued .", "On an unspecified date the writ was returned to the applicant by the bailiff 's service owing to the lack of funds in the debtor 's account .", "The applicant forwarded the writ of execution to the debtor 's bank and requested it to debit the sum due from the debtor 's account , but the bank refused .", "She then brought proceedings against the bank claiming damages for its refusal to enforce the judgment of CARDINAL DATE .", "On DATE the Justice of the Peace of ORG of GPE dismissed the applicant 's claim on the ground that the bank had not been at fault in refusing to enforce the judgment of DATE . On appeal , the judgment was upheld by ORG of GPE on DATE .", "On DATE the applicant received RUR CARDINAL in execution of the judgment of ORG of GPE of DATE .", "On DATE she received the outstanding balance of RUR CARDINAL , thus completing full execution of the judgment ." ]

[ "6" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE ORG ( arrondissementsrechtbank ) convicted the applicant of participation in robbery with violence resulting in grievous bodily harm and sentenced him to QUANTITY , with deduction of the time spent in pre - trial detention . In addition , having found that the applicant was suffering from a mental disorder and was dangerous , ORG further ordered the applicant ’s confinement in a custodial clinic ( hereafter a “ ORG order ” - terbeschikkingstelling met bevel tot verpleging van overheidswege ) .", "On DATE , when the applicant had served his prison sentence , the ORG order took effect . However , the applicant was not transferred to a custodial clinic as there were no places available . He therefore remained in pre - placement detention in the ’sHertogenbosch ordinary remand centre .", "NORP In order to expedite his admission to a custodial clinic , the applicant instituted summary civil proceedings ( kort geding ) against GPE . He withdrew these summary proceedings after his transfer to a custodial clinic in GPE on DATE .", "On DATE the applicant took civil proceedings against ORG before ORG , claiming compensation in tort ( onrechtmatige daad ) in an amount of MONEY ( NLG ) , i.e. NLG CARDINAL for DATE during DATE of his pre - placement detention after DATE pending transfer to a custodial clinic CARDINAL for DATE until DATE .", "In its judgment of DATE ORG held that a delay of DATE was acceptable for a transfer to a custodial clinic and that GPE had only acted unlawfully in so far as this delay had exceeded DATE . It awarded the applicant compensation in the amount of NLG CARDINAL for DATE spent in pre - placement detention DATE after DATE and NLG CARDINAL for each subsequent day until DATE , i.e. a total amount of NLG CARDINAL . It rejected the applicant ’s claim for the remainder .", "NORP GPE filed an appeal with ORG ( Gerechtshof ) . The applicant filed a cross - appeal ( incidenteel beroep ) in which he reduced his claim for damages to NLG CARDINAL,CARDINAL in that he no longer sought compensation for DATE of his pre - placement detention , i.e. the period between DATE and CARDINAL DATE .", "In its judgment of DATE ORG rejected the principal appeal filed by ORG . It did , however , quash the judgment of DATE on the basis of the cross - appeal filed by the applicant in so far as the applicant ’s claims in excess of NLG CARDINAL had been dismissed in this judgment . It ordered GPE to pay a further amount of NLG CARDINAL,CARDINAL to the applicant . ORG filed an appeal in cassation with ORG ( PERSON ) .", "On DATE ORG quashed the judgment of DATE and referred the case back to ORG . It held , inter alia :", "“ QUANTITY CARDINAL § CARDINAL ( b ) of the [ DATE ] Prisons Act ( Beginselenwet Gevangeniswezen ) reads :", "‘ ORG centres are intended : ( b ) for the accommodation of all others lawfully deprived of their liberty by a judicial decision , court order or public authority , in so far as there is no other suitable place for their accommodation or for as long as admission to another suitable place is not possible.’", "The point of departure for the examination ... must therefore be that the [ applicant ’s ] continued stay in the remand centre ‘ for as long as admission to another suitable place is not PERSON is in principle lawful as being based on the law . Moreover , the parties and ORG have taken this approach .", "However , where it can no longer reasonably be held that the failure to admit a person to a custodial clinic is justified by the circumstances , the continuation of detention in the remand centre must be regarded as unlawful ( ORG , DATE , PERSON DATE , CARDINAL ) . Also , the parties and ORG have taken this as their point of departure . Part CARDINAL [ of the cassation complaint ] thus lacks a factual basis .", "CARDINAL.CARDINAL.CARDINAL ORG , faced with the question from what moment the situation referred to in the last paragraph of CARDINAL arises , has held that ‘ apart from exceptional circumstances , the stay of a [ person awaiting admission to a custodial clinic ] should not exceed CARDINAL months’ and , further , that , in the absence of exceptional circumstances , the [ applicant ’s ] stay in ORG remand centre was unlawful after DATE had elapsed . Parts DATE [ of the cassation complaint ] are directed against these findings and the reasons given by ORG .", "CARDINAL NORP In the examination of these parts , it must be stated in the first place that the impugned findings of ORG concern a situation prior to the entry into force of LAW on confinement to a custodial clinic of persons subject to a ORG order ( PERSON verpleging ter beschikking gestelden ) . ... this provision entered into force on DATE . ORG considerations hereafter will thus address the legal situation until DATE .", "CARDINAL In DATE the Minister of ORG gave an undertaking to ORG of ORG that the admission to a custodial clinic of persons in respect of whom a ORG order had been given and in respect of whom a custodial clinic had been selected would be carried out within DATE after the ORG order had taken effect . ...", "In a letter to ORG of ORG of DATE , the ORG Secretary of ORG ... stated that she was unable to maintain this undertaking , given the growth in waiting lists .", "LAW on confinement to a custodial clinic of persons subject to a ORG order reads :", "‘ CARDINAL . The admission [ to a custodial clinic ] of a person in respect of whom a ORG order has been issued takes place within DATE after the date on which the ORG order has become effective .", "When Our Minister , taking account of the requirements mentioned in LAW [ of LAW ] , considers that admission is not possible within the period set out in the first paragraph , he may extend this period by DATE each time .", "A decision to extend within the meaning of the second paragraph shall be equated to a refusal to decide within the period mentioned in the first paragraph.’", "In the Explanatory Memorandum to this Article it is stated , inter alia :", "‘ ... in the proposed first paragraph of LAW a time - limit of DATE is set out within which the admission must in general be carried out . This time - limit has been chosen on the basis of the fact that , in addition to the previously accepted guideline for a maximum duration for a ORG admission of DATE , the time needed for the selection examination , the consultation with the envisaged institution of admission and the decision - making at the ORG must also be taken into consideration .", "In DATE my predecessor abandoned the above - mentioned time - limit of DATE since , as a result of the lack of capacity of the custodial clinics including the [ forensic psychiatric observation ] ORG , this time - limit could no longer be observed .", "It can not be expected for a foreseeable time that all persons in respect of whom a ORG order has been issued can be admitted to the custodial clinic selected for them within the stated time - limit . The proposed second paragraph of LAW therefore opens the possibility of an extension of the DATE period by DATE each time.’", "CARDINAL NORP The following must be derived from the statements of the Minister and the ORG Secretary of ORG . After DATE the Government apparently assumed that the undertaking made in DATE concerned the time needed for selection and admission of persons awaiting admission to a custodial clinic and that this period would not exceed a maximum of DATE . The ORG Secretary ‘ ORG this undertaking in DATE on grounds of ‘ the lack of capacity of the custodial clinics , including the Dr F.S. Meijers Institute’ . It follows from this that , where the above - mentioned lack of capacity is not taken into consideration , the point of departure is that the procedure of selection and admission of persons subject to a ORG order does not , in principle , need to take DATE . The consequences of this lack of capacity and other circumstances that might influence the delay in admission will be addressed in considerations nos . MONEY – CARDINAL.CARDINAL.CARDINAL .", "In the light of the presupposed standard in CARDINAL it can not be said , however , that the mere exceeding of the DATE time - limit in itself renders a lawful detention in a remand centre unlawful under LAW ( b ) of the [ DATE ] Prisons Act . This situation only arises where it can no longer reasonably be held that the failure to admit a person to a custodial clinic remains to be justified by the circumstances . Only then can it be said that , although there is a legal basis for the continued detention in a remand centre of a person subject to a ORG order , the further duration of that detention is contrary to what is fitting conduct in society according to unwritten ( customary ) law ( in strijd is met hetgeen volgens ongeschreven recht in het maatschappelijk verkeer betaamt ) .", "PERSON For cases like the present one , this unwritten law is as follows .", "It must be stated first that the ORG order in cases like the present one starts to run from DATE release and that the Minister of ORG , pursuant to LAW as in force until DATE ) , had to decide ‘ as soon as possible on the admission to a custodial clinic intended to execute the confinement ORG . This did not , however , mean that the Minister of ORG was obliged to ensure that the required capacity for persons subject to a ORG order was available at any given point in time . A certain friction between available and required capacity is indeed acceptable from the point of view of efficient expenditure of financial resources . It has already become clear in CARDINAL that the Minister of Justice , when he allowed a delay of DATE in DATE , took into account beforehand the fact that this delay would not be sufficient in all cases .", "It further needs to be noted that LAW on confinement to a custodial clinic of persons subject to a ORG order entered into force on DATE . In this provision , identical wording to which was already included in the PERSON submitted on DATE , the point of departure is an admission delay , continuously subject to extension , of DATE . The views of the ORG and ORG during the history of the adoption of the aforementioned LAW are relevant to the examination of the question as to the period of delay in a remand centre awaiting admission to a custodial clinic intended for the person concerned which can be considered , in general , justified by the circumstances and thus acceptable in society .", "Noting the above , and with due regard for the considerations set out in CARDINAL , ORG is of the opinion that , after the end of the prison sentence , the preplacement detention in a remand centre for DATE of a person subject to a ORG order awaiting admission to a custodial clinic intended for him can not be regarded as unlawful . A period DATE would be unlawful , unless there were special circumstances , as referred to in CARDINAL.CARDINAL.CARDINAL below .", "CARDINAL.CARDINAL.CARDINAL", "CARDINAL.CARDINAL.CARDINAL In part CARDINAL [ of the grounds of appeal in cassation ] the complaint is made that ORG has not accepted that it is incompatible with the standard given in ORG judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) that a distinction be made between general circumstances , which could be relevant for a waiting period for admission to a custodial clinic of DATE , and special circumstances which could be relevant for the period after DATE . ...", "The complaint fails . Only on grounds of special circumstances to be submitted by the ORG and in the event of a proven dispute relating to the person concerned and/or the ORG – such as , for instance , incidental and serious friction between available and required capacity for persons subject to a ORG order – can the exceeding of the maximum duration of an admission delay be justified .", "CARDINAL.CARDINAL.CARDINAL", "CARDINAL", "CARDINAL NORP Since the ORG has not adduced any of the special circumstances referred to in CARDINAL.CARDINAL.CARDINAL , it follows from the foregoing that the detention of [ the applicant ] in the ’s - Hertogenbosch remand centre must be considered unlawful from the moment when a period of DATE had passed following the beginning of his stay there awaiting admission [ to a custodial clinic ] .", "CARDINAL", "CARDINAL.CARDINAL.CARDINAL The complaint set out in part CARDINAL [ of the grounds of appeal in cassation ] about the reasons [ given by ORG for rejecting the ORG ’s argument in relation to the determination by ORG of the amount of compensation of respectively NLG DATE and NLG CARDINAL per day ] is well – founded . The ORG has disputed ... on grounds that can not immediately be refuted that DATE of the ORG would change when the starting date had been postponed . By ignoring this , ORG has not given sufficient reasons for its impugned finding .", "CARDINAL Part CARDINAL further contains a complaint that ORG has used an incorrect standard in the determination of compensation by assuming that the stay of [ the applicant ] in the remand centre can at best be compared to the case of a suspect who has spent more time in pre - trial detention than was justified . This complaint is also well – founded . The unlawfulness of detention in a remand centre after DATE does not arise from the continued deprivation of liberty but from the failure to start treatment in a timely manner in a custodial clinic intended for this purpose . The comparison used by ORG does not fit the nature of this form of unlawfulness and the non - pecuniary damage resulting therefrom", "On DATE the ORG order against the applicant expired . The public prosecutor had not sought a prolongation of the order .", "In a judgment of CARDINAL DATE ORG quashed the judgment of ORG of DATE in so far as it had awarded compensation to the applicant in an amount of NLG CARDINAL . It awarded the applicant compensation in an amount of NLG CARDINAL , rejected the rest of his claim and upheld the remainder of the judgment of DATE .", "ORG found it established that the delay in the admission of the applicant to a custodial clinic constituted an unlawful act in so far as this delay had exceeded a period of DATE . It held that the applicant had been unable to demonstrate that there were special circumstances in his case for holding that a delay of DATE constituted of itself an unlawful act . It agreed with both parties to the proceedings that it could not be determined what had been , in concrete terms , the effect of the applicant ’s lengthy stay in the remand centre on his treatment . Relying on a report of CARDINAL DATE by ORG , ORG further held that no general conclusive findings could be made on that issue . It did not find it established that , in the applicant ’s case , the delay in admission had had a major and serious impact on treatment possibilities .", "DATE ’s feelings of uncertainty and frustration . Having found it established that the applicant ’s feelings of unrest had become more intense with the passage of time pending admission to a custodial clinic , it further held that he had sustained increasing non - pecuniary damage with the passage of time . As to this aspect , it considered that a DATE increase of the basic amount by NLG DATE on each occasion was , in the present case , in accordance with the requirements of equitable compensation . It consequently fixed the total amount of compensation at NLG CARDINAL .", "It rejected the applicant ’s argument that the compensation should be calculated on a DATE basis . ORG agreed with the ORG that the use of a DATE compensation amount in cases like the present one , where the unlawfulness did not arise from the deprivation of liberty as such , suggested a degree of precision for which there was no basis in reality .", "The relevant provisions of LAW ( PERSON ) , as in force at the relevant time , read as follows :", "“ LAW", "A person sentenced to imprisonment who , on grounds of the inadequate development or pathological disturbance of his mental faculties , is eligible for this , may be placed in a judicial institution ( justitiële inrichting ) for the treatment ( verpleging ) of persons subject to a ORG order ; in that case Articles CARDINALc , DATE and DATE shall apply by analogy . ...", "Article CARDINAL", "The judge may order that a person who , owing to the inadequate development or pathological disturbance of his mental faculties , can not be held responsible for an offence , shall be committed to a psychiatric hospital ( plaatsing in een psychiatrisch ziekenhuis ) for DATE , but only if he represents a danger to himself , to others , or to the general safety of persons or property . ...", "Article PERSON", "The judge may impose a ORG order ( terbeschikkingstelling ) on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if :", "CARDINAL the offence he has committed is one which , according to its statutory definition , renders offenders liable to a term of imprisonment of DATE or more or if the offence is defined in Articles CARDINAL , CARDINAL § CARDINAL , CARDINAL , ORG or CARDINAL of LAW , LAW ( ORG ) , LAW ( PERSON ) , or LAW , under CARDINAL , of LAW , and", "CARDINAL the said measure is necessary in the interests of the safety of others or the general safety of persons or property .", "NORP In applying paragraph CARDINAL , the judge may refrain from imposing a penalty , even if he finds that the suspect may be held criminally responsible for the offence .", "NORP In making an order referred to in paragraph CARDINAL , the judge shall take account of the statements contained in the reports made concerning the suspect ’s personality , and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences .", "Paragraph CARDINAL of this Article and LAW may be applied in conjunction with regard to the same offence .", "Article CARDINALb", "The judge may order that a person who is subject to a ORG order shall be confined to a custodial clinic ( verpleging van overheidswege ) if this is necessary in the interests of the safety of others or the general safety of persons or property . ...", "Article CARDINALc", "Treatment shall be provided in custodial clinics for persons subject to ORG orders in accordance with rules to be laid down by ORG ( algemene maatregel van bestuur ) .", "NORP The Minister of Justice shall ensure that persons subject to ORG orders who are confined to a custodial clinic receive the necessary treatment . In respect of specific patients , the Minister may issue special instructions to the head of the custodial clinic in the interests of the safety of others or the general safety of persons or property .", "The rules to be laid down pursuant to paragraph CARDINAL shall make provision for persons subject to ORG orders to appeal against decisions which restrict their freedom of movement or correspondence or their right to receive visitors .", "Article CARDINALd", "Persons subject to ORG orders may be confined to the following institutions , on condition that the institutions have been designated for this purpose by the Minister of ORG :", "a. private institutions managed by legal persons established in the GPE ;", "b. State institutions .", "Treatment shall preferably take place in a private institution . ...", "Article CARDINALe", "The costs of the confinement of persons subject to ORG orders shall be borne by the ORG in so far as no other provision is made for them by or pursuant to any ORG . Rules shall be laid down by Order in Council concerning payment for confinement elsewhere than in ORG institutions . ”", "A ORG order with confinement to a custodial clinic is not intended to have a punitive effect , but to protect society from any risk posed by the person concerned . In practice , it is imposed in cases concerning murder , manslaughter , rape and other serious violent crimes or sexual offences . ORG orders are initially imposed for a period of DATE and may be prolonged by a judge for further periods of CARDINAL or DATE where the safety of others or the general safety of persons or property so require ( Article MONEY of LAW ) . The total duration of a ORG order may not exceed DATE , unless it has been imposed on the ground of an offence directed against , or constituting a danger to , the physical integrity of CARDINAL or more persons . In the latter case , there is in principle no restriction on the number of extensions that can be granted by a judge ( Article PERSON of LAW ) .", "The provisions relating to the proceedings on the extension of a ORG order are set out in ORG CARDINALo – CARDINALx of LAW PERSON ) . Article CARDINALo § CARDINAL provides that the public prosecutor ’s office ( openbaar ministerie ) may submit a request ( vordering ) for the prolongation of a ORG order DATE and DATE before the date on which the order is due to expire . The request must be accompanied by a recent and reasoned recommendation prepared by the custodial clinic where the person concerned is receiving treatment ( LAW ORG ) . The court competent to decide on such a request is ORG that tried the person concerned at first instance for the crime that gave rise to the ORG order ( Article CARDINALp ) .", "According to LAW ( ORG tenuitvoerlegging terbeschikkingstelling ; “ NORP ” ) as in force at the relevant time , the prosecution department must inform the Minister of ORG as soon as possible of any judicial decision imposing a ORG order with confinement to a custodial clinic ( LAW ) . Under LAW , the Minister must decide as soon as possible in which specific custodial clinic the person concerned is to be placed , taking into account the available information on the psychological examination and observation of the person concerned , advice on mental treatment , the case file on the criminal proceedings , the available possibilities for treatment , security requirements and the personal wishes of the person concerned .", "NORP The custodial clinics , of which there were CARDINAL at the relevant time , are top - security institutions as the persons placed there have been found to pose a great danger to society as well as to themselves . The purpose of treatment provided in these clinics is to reduce this danger and to prevent recidivism . The treatment is geared to individual disorders and personalities and is aimed at helping persons subject to a ORG order to gain insight into and control over their disorders , to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society .", "The decision on the selection of the most appropriate custodial clinic DATE given the differences between the various institutions as regards security levels , patient population ( gender , psychiatric diagnosis of the patients and their ability to function in a group setting etc . ) , methods of treatment and average stay of patients – is in most cases preceded by a DATE period of psychiatric observation in the Dr F.S. Meijers Institute , a forensic psychiatric observation institution specialised in this field .", "NORP The legal basis for pre - placement detention is provided for in LAW ( PERSON gevangeniswezen ) . This provision , as in force at the relevant time , reads :", "“ Remand centres are intended :", "a. for the accommodation of those who must undergo punishment by imprisonment or military detention ;", "b. for the accommodation of all others lawfully deprived of their liberty by a judicial decision , court order or public authority , in so far as there is no other place suitable for their accommodation or for as long as their admission to another suitable place is not possible . ”", "In a judgment given on DATE ORG held that LAW ( b ) of the DATE LAW also covered situations in which persons subject to a ORG order entailing confinement to a custodial clinic were detained in a remand centre pending a decision as to the specific custodial clinic in which they were to be placed , and that such a detention in a remand centre was in principle lawful as being based on the law . It did , however , add that it did not follow from this interpretation that DATE in principle – lawful detention would remain lawful where it could no longer reasonably be held that the failure to admit the person to a custodial clinic remained justified by the circumstances ( PERSON ( GPE Law Reports ) DATE , CARDINAL ) .", "In the National Ombudsman ’s report no . CARDINAL/CARDINAL of DATE , it was stated that , in principle , taking into account the DATE observation period and a margin of DATE for the administrative processing of the selection application and the admission procedure , a delay of DATE between the date on which a sentenced person became eligible for early release and the date of admission to a custodial clinic was acceptable . Acknowledging that incidental friction between the available and necessary capacity of custodial clinics could not be wholly excluded , the ORG further held that an additional delay of no longer than DATE at the very most might still be acceptable . However , given the responsibility of the Minister of Justice for adequate capacity planning , the ORG did emphasise that reliance on force majeure would only be acceptable if the Minister could demonstrate unforeseen circumstances that indeed rendered a longer period of pre - placement detention unavoidable .", "On DATE Articles CARDINAL–CARDINAL and CARDINAL–CARDINAL of the Act on confinement to a custodial clinic of persons subject to a ORG order ( PERSON verpleging ter beschikking gestelden ) entered into force . LAW had already entered into force on DATE .", "DATE LAW provides that a person subject to a ORG order must be admitted within DATE to a custodial clinic after the ORG order has taken effect . This period can be extended by the Minister of ORG by further periods of DATE each time if placement proves impossible .", "In the report of DATE of ORG for the Prevention of Torture and Inhuman Treatment ( the “ CPT ” ) on its visit to the GPE from DATE to CARDINAL DATE ( ORG ( CARDINAL ) , it is stated :", "“ CARDINAL . ... the delegation also met ( for instance , in FAC , ORG and ORG ) some male and female prisoners in respect of whom treatment measures ( eg . a ORG placement ) had been decided , in some cases a long time before , but who had not yet been transferred because of a lack of places .", "The ORG would like to receive the NORP authorities’ comments on this subject . ”", "In their response to the ORG report ( ORG ( CARDINAL)CARDINAL ) , ORG stated :", "“ The increase in the number of persons under a ORG order has placed the existing capacity under severe strain , causing a rise in the number of prisoners awaiting transfer to a ORG clinic . ORG shares the ORG ’s view that such prisoners should be placed in an appropriate hospital facility within a reasonable length of time . The situation has changed , however , since the delegation ’s visit . A programme has been set up to increase the capacity through building projects and the creation of more places in existing establishments , and outpatient departments for part - time treatment have been added to some ORG , widening the prospect for earlier probationary leave . These measures will reduce waiting times considerably . ”", "In the ORG report of CARDINAL DATE on its second visit to the GPE from DATE ( ORG ( CARDINAL ) , it is stated :", "“ CARDINAL . Since DATE , the NORP authorities have been confronted by a significant increase in ORG orders , a problem which has been exacerbated by the prolonged stays DATE for DATE of CARDINAL persons within the ORG system . As a result , the number of persons waiting in prisons for admission to ORG establishments rose from CARDINAL in DATE to CARDINAL at the time of the ORG ’s second periodic visit . In response to this situation , the NORP authorities have decided to increase the number of ORG places , in order to reach a capacity of CARDINAL in DATE . However , the ORG notes that , in a letter sent to ORG of ORG on DATE , ... the Minister of ORG indicated that the shortage of ORG places in DATE is estimated at CARDINAL .", "Concern has been expressed in the GPE about the position of inmates waiting in prison for admission to a ORG institution . During this waiting period , currently averaging DATE , the persons concerned do not receive the treatment they require , a situation which , it has been pointed out , is likely to provoke feelings of anxiety , self doubt and anger in the persons concerned . Further , as they are considered dangerous , those inmates run a serious risk of being placed in restrictive regimes in the prison establishments where they are temporarily being held . ”", "In their response to the ORG report ( ORG ( CARDINAL)CARDINAL ) , ORG informed the ORG of the measures taken by the NORP authorities in order to overcome the difficulties flowing from the large number of prisoners awaiting admission to a custodial clinic and of the steps taken to ensure that such prisoners received at least minimally adequate treatment whilst awaiting admission . According to ORG , efforts were being made to improve / accelerate the outflow of ORG patients to mainstream psychiatric facilities and the new statutory provision for the conditional lifting of ORG orders was expected both to increase the outflow of ORG patients as well as to reduce the number of patients entering custodial clinics .", "The Government further informed the ORG that lengthy waiting lists for places in custodial clinics would continue to exist pending a resolution of the capacity problem , but that experiments had started in a few places providing special psychiatric treatment for inmates awaiting admission to a custodial clinic in ordinary prisons . In these experiments , therapists attached to forensic outpatient departments offered a form of preparatory therapy designed to alleviate anxiety about the eventual ORG treatment and to reduce the growing hostility felt by these people towards the justice system . According to the Government , the initial results of these experiments were encouraging in that the persons involved – therapists , prison staff and inmates DATE had all responded positively and there was a growing demand among prisoners awaiting admission to a ORG institution for this kind of support ( pp . DATE ) ." ]

[ "5" ]

[ "5-1" ]

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[ "The applicant was born in DATE and is serving a sentence of life imprisonment in ORG no . CARDINAL .", "On DATE the dead body of a Mr L. was found , with a blood - stained axe lying next to it . A criminal investigation was initiated in respect of a suspected premeditated murder .", "From DATE the applicant underwent medical treatment for an unspecified psychiatric condition in the medical centre GPE", "On DATE he was arrested in the framework of an unrelated murder investigation .", "In DATE the applicant , who was at the time serving a fixed - term prison sentence for several counts of premeditated murder , made a confession , first to the prison administration and later to the investigation authorities , that on DATE he had twice hit PERSON on the head with the back of an axe without having the intention of killing him .", "Free legal counsel was appointed for , and represented , the applicant during the pre - trial investigation and the proceedings before the first - instance court .", "During the pre - trial investigation the applicant unsuccessfully requested the investigator to arrange for the translation into NORP of some materials in the case file which were in GPE .", "On DATE ORG ( “ the ORG ” ) , sitting as a court of first instance , found the applicant guilty of premeditated murder committed repeatedly and sentenced him to life imprisonment . It noted that although the applicant had alleged that he had had no intention to kill , the fact that he had hit the victim with an axe on a vital part of his body twice and with considerable force , indicated the opposite . While taking into account the applicant ’s voluntary confession , ORG noted that it was the fourth murder he had committed and considered life imprisonment to be the appropriate penalty . At the applicant ’s request , the proceedings before ORG were held in NORP .", "The applicant , who was no longer represented , lodged a cassation appeal in which he mentioned , inter alia , that he had no means to pay for legal assistance .", "On DATE ORG , following a hearing in which the applicant participated , upheld his conviction .", "Under LAW ( CARDINAL ) , premeditated murder committed repeatedly ( with some exceptions not applicable to the circumstances of the instant case ) is punishable by imprisonment for a term of DATE , or life imprisonment .", "Article CARDINAL § CARDINAL provides that legal representation during an inquiry , a pre - trial investigation and a trial before a court of first instance is obligatory if , inter alia , a life sentence is a possible penalty . Under LAW , the legal representation envisaged by LAW is obligatory in the proceedings before the appellate court if the appeal could potentially worsen the situation of the convicted ( or acquitted ) person .", "According to LAW , verdicts of appellate courts delivered at first instance may be reviewed under the cassation appeal procedure .", "Pursuant to LAW , a verdict delivered by an appellate court as a court of first instance may be quashed or modified on the grounds of partiality or incompleteness of the inquiry , pre - trial investigation or trial , or because the court ’s conclusions in its" ]

[ "6" ]

[ "6-3" ]

[ "6-3-c" ]

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[ "The applicants , Mr PERSON Siyavuş PERSON , Mr PERSON and PERSON Türkan Semercioğlu , were NORP nationals who lived in GPE . By a letter of DATE the ORG was informed that PERSON PERSON had died on DATE and that his heirs , Ms PERSON , Ms Mihriban Tulu Kortel ( Aykut ) and PERSON Hacer Öztürk ( Aykut ) , wished to pursue his application . ORG ( “ the Government ” ) were represented by their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE GPE the Municipality ” ) expropriated a plot of land belonging to the applicants ( block no . CARDINAL , plot no . CARDINAL ) in GPE , GPE .", "On DATE the applicants brought an action before ORG for additional compensation .", "On DATE ORG awarded the applicants additional compensation of MONEY ( TRL ) plus interest at the statutory rate , running from DATE .", "On DATE ORG upheld the judgment of the first - instance court .", "The administration subsequently requested rectification of the decision of ORG .", "On DATE ORG dismissed the administration ’s rectification request .", "On DATE the applicants signed a document of discharge ( ibraname ; “ the discharge ” ) indicating that they had received CARDINAL separate cheques from the LOC in the amounts of GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL , GPE CARDINAL and GPE CARDINAL respectively as additional expropriation compensation , and releasing the GPE from all liability in relation to the compensation claim . The applicants thereby stated that they had no outstanding rights or claims against the LOC which might become the subject matter of further legal or enforcement proceedings .", "On DATE the applicants collected the cheque of GPE DATE .", "The relevant domestic law and practice are set out in the cases of ORG v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) ; Aka v. GPE ( DATE , Reports CARDINALVI ) ; and GPE and Others v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

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[ "PERSON is a NORP citizen , born in DATE . He lives in GPE ( GPE ) .", "At TIME on DATE the applicant was involved in a road accident . The Brussels Crown prosecutor , who was informed of the accident by the police officers called to the scene , ordered the applicant ’s driving licence to be immediately withdrawn on the ground that he was presumed to have been driving with a blood - alcohol level of QUANTITY , which was the prescribed limit in GPE at the material time . That presumption was , however , disputed by the applicant . As the applicant was unable to perform a breath test at the scene of the accident , a blood test was carried out at TIME on DATE . The applicant was informed of the result in DATE . It revealed an alcohol level of QUANTITY of blood , which , to allow for the time which had elapsed , was adjusted to QUANTITY at the time of the accident .", "As the applicant had not been carrying his driving licence on DATE , the police came to seize it at his house DATE pursuant to the order for its immediate withdrawal . It was handed to them by the applicant .", "On DATE the applicant sent a registered letter to the ORG prosecutor asking for his driving licence to be returned to him . In a letter of DATE he was invited to collect it , which he did .", "On DATE , after receiving the result of the test which had been taken to determine the level of alcohol in his blood ( see paragraph CARDINAL above ) , the applicant requested a second test from a different medical laboratory . He informed the ORG prosecutor DATE .", "On CARDINAL DATE the applicant was served with a bailiff ’s writ in which he was summoned by the ORG prosecutor to appear on DATE before the police court in GPE on charges of unintentionally causing bodily injury ( charge A ) , driving a vehicle whilst drunk or in a similar condition ( charge B ) , driving a vehicle with an alcohol level of QUANTITY of blood ( charge C ) , failing to give way to traffic coming from the right ( charge D ) and failing to maintain constant control of a vehicle driven by him ( charge E ) .", "On DATE the police court in GPE sentenced the applicant to a fine of MONEY ( BEF ) and disqualified him from driving for DATE , less DATE for which his driving licence had already been withdrawn . The court also made the reinstatement of his right to drive conditional on his being medically certified fit to drive . It gave the following reasons for its decision :", "“ CARDINAL . As regards charges A , D and E", "It appears from the criminal investigation and the evidence adduced at the hearing that these CARDINAL charges have been made out .", "At TIME on DATE in ORG the defendant , who was driving a ORG , came out of FAC onto the crossroads between that main road and FAC and should have given way to a ORG being driven by PERSON , who was coming from the right out of FAC and heading towards FAC .", "The plan accepted by the defendant shows that the collision between the CARDINAL vehicles occurred in the middle of the crossroads . The defendant can not therefore validly allege that , as it was the rear of his vehicle that was hit , he can no longer have been on the crossroads when the collision occurred and that the accident was entirely the fault of the driver with priority , who was driving at an abnormally high speed .", "It would appear , on the contrary , that it was the defendant who , in addition to failing to give way to the driver with priority , lost control of his vehicle , since after colliding at the crossroads with ORG ’s ORG , far from managing to stop , he continued his course , mounting the pavement of the ORG beyond the crossroads , and crashing successively into the front of CARDINAL buildings and into the right - hand side of a number of legally parked vehicles .", "As luck would have it , there were no pedestrians on the pavement in front of the buildings . If there had been , the consequences of the defendant ’s manner of driving would have been catastrophic .", "Nonetheless , the accident caused by the defendant resulted in injuries to the CARDINAL passengers in the ORG car .", "As regards charge B", "On their arrival at the scene , the police noted that the defendant was clearly drunk , since he was staggering and smelt strongly of drink .", "The defendant was incapable of blowing , so a breath test could not be taken .", "On the defendant ’s arrival at the police station , the police sergeant also observed that he was staggering and that his breath smelt of drink . He noted that Doctor PERSON , who had been called out TIME after the accident , had concluded in his report that although the defendant exhibited no outward signs of drunkenness , the symptoms he had noted were due to the consumption of alcohol and that the defendant must have been under the influence of drink , since he claimed not even to have been involved in any accident .", "On being interviewed TIME after the accident , at TIME ( after being detained ) , at which time the result of the breath test was known to be negative , the defendant stated :", "( i ) that a vehicle he had not seen approaching had crashed into him ;", "( ii ) that he could remember nothing after the crash , even though he was neither injured nor bruised ;", "( iii ) that he had drunk CARDINAL alcohol - free beers at home , which he then corrected to CARDINAL ‘ Tourtel’ , and taken morphine - type medicines for his cancer .", "It follows that Mr Escoubet must have been driving his vehicle on the public highway whilst drunk or in a similar condition caused by drugs or hallucinogenic substances , inferences being capable of standing as proof ( see PERSON . [ Court of Cassation ] CARDINAL.CARDINAL.CARDINAL , PERSON . [ Pasicrisie ] DATE , I , CARDINAL ) .", "The defendant must have known that he could not drive if he was taking medicine such as morphine at the same time as drinking beer , even ORG .", "Such a mixture inevitably affected his driving , since he did not even know where the driver with priority had appeared from and continued his course for QUANTITY along the pavement beyond the spot at which the collision had occurred , without making any attempt whatsoever to stop .", "Charge B has therefore been made out .", "As regards charge C", "Despite the fact that Professor PERSON concluded that the level of alcohol in the defendant ’s blood was QUANTITY , adjusted to QUANTITY to allow for the time which had elapsed since the accident , and that the second expert opinion DATE requested within the prescribed time , and carried out by PERSON , a laboratory analyst – showed there to have been QUANTITY of ethanol per litre of blood , which is well over the prescribed limit , the ORG , having regard to the rights of the defence and to the fact that the criminal law must be narrowly construed , considers that in the instant case the result of the blood test can not be taken into consideration .", "It appears from the criminal case file that Doctor PERSON , who performed the blood test at TIME , had to use his own equipment , as CARDINAL blood collection tubes were necessary .", "PERSON , the laboratory analyst , noted that the blood sample had not been submitted to him in the statutory collection tube and had not been labelled with the defendant ’s name .", "LAW of DATE requires the authority requesting a blood test to supply the doctor with a collection tube and disinfectant in aqueous solution containing sodium fluoride and LAW tube to be labelled with the first name and surname of the person from whom the blood sample was taken .", "Blood tests carried out in breach of the strict rules laid down by LAW of DATE can not be admitted in evidence ( see ORG [ Editor ’s note : the capital of water consumption ] CARDINAL.CARDINAL.CARDINAL . PERSON . GPE DATE , CARDINAL ) ; likewise , a blood test taken with a syringe instead of a tube is inadmissible and the ORG can not take the result into consideration ( see ORG , CARDINAL , PERSON . GPE DATE , p. CARDINAL ) .", "LAW of DATE requires the relevant authority to provide the doctor taking a blood sample with a collection tube that complies with the conditions laid down in that LAW and in a ministerial decree ( of CARDINAL DATE ) . A tube so supplied is deemed , subject to contrary evidence , to comply with the legal requirements , whereas an analysis of a blood sample taken with a tube which has not been supplied to the doctor by the said authority has no probative value unless it can be established that it satisfied the said legal requirements ( see PERSON . , CARDINAL , Pas . DATE , I , CARDINAL ) .", "Thus , in the instant case , for the reasons set out above , as Doctor PERSON had to use his own equipment , and no further details as to the type of equipment have been given , charge C has not been made out .", "...", "Charges A , B , D and E all arise out of the same criminal act .", "It is therefore appropriate to impose a single penalty , namely the heaviest one applicable , being that attracted by charge B.", "Having regard therefore to the fact that Mr LOC has no criminal record and that , according to his counsel , he is suffering from throat cancer , this ORG will dispose of the case by sentencing the defendant only to the fine stipulated hereafter and , under charge B , to disqualification from driving any motor vehicle ( for a period which takes account , in particular , of the above - mentioned factors ) and the obligation to undergo only the medical examination to determine whether or not he can be permitted to drive again ( LAW of LAW of DATE ) since Mr Escoubet was personally responsible for the offence and , moreover , admitted that he had been driving whilst under the influence of morphine - type medicines . ”", "The applicant appealed to ORG , which held that charges A , D and E had been made out , but not charge B. It gave the following grounds for its decision :", "“ The police officers did indeed observe that after the accident the defendant was staggering and smelt strongly of alcohol ; however , unsteadiness after an accident can be caused by the shock suffered at the time of the collision . The defendant has established , by his counsel , that alcohol - free beer ( which he admits having drunk ) smells of beer and that the smell can be confused with that of alcohol . ”", "Accordingly , the court sentenced the applicant to a fine of BEF CARDINAL,CARDINAL and disqualified him from driving for DATE .", "Immediate withdrawal of driving licences was introduced in GPE by section CARDINAL of the Law of CARDINAL DATE . The explanatory memorandum of that PERSON states that “ immediately withdrawing a driver ’s or learner driver ’s licence will take a dangerous driver off the roads pending a court ’s decision in his or her case and will also encourage drivers to obey the regulations ” ( PERSON . Doc . , ORG , DATE - CARDINAL , no . DATE ) .", "The various legal provisions governing road traffic have been grouped together under the consolidated Acts of CARDINAL DATE on the policing of road traffic , which constitute a separate criminal statute . Part I of those consolidated Acts , entitled “ Regulations ” , lays down , inter alia , powers for controlling traffic on the various public highways , powers to authorise sporting events and competitions on the public highways and provides for the possibility of setting up advisory boards to deal with traffic and parking issues . Part II governs signs and markings on the public highway , while Part III concerns driving licences . Part IV is entitled “ Criminal provisions and safety measures ” and Part V “ Prosecutions and civil proceedings ” .", "Chapter VIII of the consolidated Acts of CARDINAL DATE , contained in Part IV , is entitled “ Immediate withdrawal of a driver ’s or learner driver ’s licence ” . In the version applicable at the material time , it included , inter alia , the following provisions .", "“ Without prejudice to the provisions of section DATE , a driving licence or document issued in lieu thereof can be withdrawn immediately", "( CARDINAL ) if the driver or person accompanying a learner driver is obviously drunk or exhibits visible signs of being drunk ;", "( CARDINAL ) if the driver has failed to stop and give particulars after an accident ;", "( CARDINAL ) if a road accident , which was prima facie caused by gross negligence on the driver ’s part , has resulted in serious injury to or the death of another ;", "( CARDINAL ) if the driver or person accompanying a learner driver has been disqualified from driving a motor vehicle of the category being driven ;", "( CARDINAL ) if the driver has committed a serious breach of the implementing regulations of these consolidated Acts .", "…", "Immediate withdrawal of a driving licence shall be ordered by the ORG prosecutor or , if the offence is triable by a military court , by an auditeur militaire . ...", "The driver or person accompanying the driver , referred to in the provisions set out in the first paragraph , sub - paragraph ( CARDINAL ) , and the second paragraph , shall hand over his driving licence or document issued in lieu thereof at the request of the police or gendarmerie on the instructions of the ORG prosecutor who has ordered the licence to be withdrawn . Should the driver fail to comply , the ORG prosecutor can order the document to be seized .", "The police or gendarmerie shall inform the driver as to which ORG prosecutor has ordered withdrawal . ”", "“ The driving licence or document issued in lieu thereof may be returned by the ORG prosecutor who ordered it to be withdrawn , either of his own motion or at the request of the holder .", "It must be returned", "( CARDINAL ) after DATE , unless the authority which ordered it to be withdrawn extends that period for a further period of DATE after hearing submissions from the licence - holder or his counsel if they so request ; the decision to extend may be renewed once ;", "( CARDINAL ) where a court does not disqualify the holder from driving ;", "( CARDINAL ) where the holder of a foreign driving licence , who does not satisfy the conditions laid down by the King for obtaining a NORP driving licence , leaves the country . ”", "“ Where a court disqualifies a person from driving , his driving licence or document issued in lieu thereof shall be sent to the court registry for the procedure laid down in section CARDINAL(CARDINAL)-(CARDINAL ) to be carried out .", "Where a person is temporarily disqualified from driving , the period for which the driving licence or document issued in lieu thereof has been withdrawn under section CARDINAL , first paragraph , sub - paragraphs ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) shall be set off against the period of disqualification , after deduction of any periods for which the defendant has been detained during that time . ”", "“ Anyone who infringes section DATE , final paragraph , shall be liable to a term of imprisonment ranging from DATE to DATE and to a fine ranging from MONEY , or to CARDINAL or other of those penalties alone .", "Where there are mitigating circumstances , the fine may be reduced but may not be MONEY .", "The penalty shall be doubled if the offender has reoffended within DATE of a previous conviction which has become final . ”", "Section CARDINAL of the consolidated Acts of DATE was amended by LAW DATE . Section CARDINAL , thus amended , came into force on DATE . The amendment concerned point CARDINAL : the provision “ … if the driver or person accompanying a learner driver is obviously drunk or exhibits visible signs of being drunk ; ” has been replaced by “ … in the cases referred to under section CARDINAL(CARDINAL ) and ( CARDINAL ) ; ” .", "ORG has ruled that tribunals of fact do not have jurisdiction to assess whether the immediate withdrawal of a driving licence pursuant to sections CARDINAL et seq . of ORG is compatible with the Convention because it is not the role of the courts to criticise the use made by the ORG prosecutor of his powers ( PERSON . , CARDINAL DATE ) . In a judgment of DATE that court specified that “ the withdrawal of a driving licence under LAW of the Law of DATE on the policing of road traffic is not a penalty , but a preventive measure designed to take a dangerous driver off the roads for a specific period of time ” .", "Paragraphs CARDINAL and CARDINAL of section DATE , reproduced in LAW ORG and also amended by LAW of DATE , provide that a driver may be banned from driving a vehicle for TIME where a breath analysis measures – or breath test detects – a concentration of alcohol of QUANTITY of exhaled breath ; where the driver refuses to submit to a breath test or a breath analysis ; or where it is impossible to carry out such a test for a reason other than the driver ’s refusal and the driver appears drunk or under the influence of alcohol .", "The consolidated Acts of CARDINAL DATE also provide , in LAW IV , for disqualification from driving . Disqualification can be ordered by a court as a penalty ( sections CARDINAL to CARDINAL ) or on grounds of physical unfitness ( sections DATE ) . Disqualification , which can be ordered where the driver has committed CARDINAL of the particular offences referred to in section ORG ) , is usually for a minimum period of DATE and a maximum period of DATE . It can , however , be ordered for a longer period , or permanently , where the driver has left the scene of an accident without reporting it ; has driven without a licence or during a period of disqualification ; or has already been convicted of an offence under section MONEY ) within DATE ." ]

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[ "6" ]

[ "6-1" ]

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[ "NORP The applicant company was founded in DATE with the aim of constructing a gas supply network for the town of GPE .", "On DATE ORG issued a permit for another company , authorising it to construct principal gas pipe sections in CARDINAL streets in GPE . On DATE the applicant filed an administrative appeal . On DATE ORG dismissed the appeal , holding that the applicant had no locus standi . The applicant sought judicial review on DATE .", "After CARDINAL hearings , on DATE the ORG quashed the administrative decisions .", "NORP On appeal , on DATE the ORG quashed this decision and dismissed the applicant 's action . It held that the plaintiff had no locus standi in the case , because it could not prove that – in accordance with section CARDINAL(CARDINAL ) of LAW the subject matter concerned its rights or lawful interests . Nor could the applicant company ( which itself had not been a party to the administrative proceedings ) prove – as required by section CARDINAL(CARDINAL ) of LAW that it had suffered prejudice to its lawful interests .", "On DATE the applicant filed a petition for review . ORG held hearings on DATE . On the latter occasion , the applicant declared that another administrative litigation concerning its licence to supply gas was in progress . ORG suspended the proceedings pending the outcome of the other case .", "After the second - instance court on DATE had finally dismissed the applicant 's action concerning the licence , ORG resumed the proceedings . On DATE it upheld ORG decision . It endorsed the reasoning of the second - instance decision , and refuted the applicant 's allegation that it had been deprived of its locus standi without an examination of the merits of the case . In the court 's view , the fact that , after having deduced in a detailed analysis that the applicant company had no locus standi in the case , ORG had not embarked on an examination of the underlying administrative dispute did not amount to a denial of justice ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP citizen , who was born in DATE and presently serves a prison term in LOC ( PERSON zavod GPE - hereinafter the “ LSP ” ) . The respondent Government are represented by their Agent Ms PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "Following his conviction for murder in DATE the applicant was sent to serve his prison term in the LSP .", "It appears from the medical documentation submitted by the Government that since DATE the applicant has suffered from various health complications including problems with his teeth , gastritis , rheumatism and swollen joints .", "According to the Government , from DATE the applicant often sought medical help in the ORG ’s dental clinic . He complained about toothache . CARDINAL dentists working there , GPE and TIME , provided the applicant with necessary care , including implantation of fillings . In spite of that treatment , the applicant continued to complain about toothache and CARDINAL of his teeth were pulled out .", "On DATE ORG pills ( antibiotic ) were prescribed to the applicant . The expiry date of the pills was DATE .", "The applicant still continued to complain about toothache and asked that some other teeth be pulled out . Having doubts as to the applicant ’s allegations , TIME sent the applicant to an oral surgeon on DATE . He decided that there was no need to pull out more teeth . After that the applicant stopped visiting the dental clinic .", "According to the applicant he did not receive proper dental care . Instead , he had continuously been given wrong medication and treated with medication which was useless and old . Due to this improper treatment he suffered immense pain and had to have CARDINAL teeth removed .", "He once received ORG pills and once ORG pills ( both antibiotics ) . After he took that medication he suffered strong abdominal pain . In DATE he went to a hospital in GPE where he was diagnosed with gastritis . There , he also had CARDINAL teeth pulled out .", "When he returned to the LSP the dentists TIME and GPE refused to see him again .", "In DATE a new dentist arrived to the Prison dental clinic and he pulled out CARDINAL other of his teeth . Altogether the applicant had CARDINAL teeth pulled out .", "On DATE , DATE , DATE and CARDINAL DATE , respectively , the applicant filed a criminal complaint with ORG ( Općinsko državno odvjetništvo u Ivancu ) against GPE and TIME , dentists in the LSP , alleging that they had administered him medication whose date of use had already expired . As a consequence he had suffered strong pain and also contracted gastritis . He alleged further that PERSON , the director of the LSP , had abused his office and official authority in so far as he had allowed that the inmates in the LSP receive unhealthy food of low quality .", "ORG interviewed GPE and TIME , examined the applicant ’s medical documentation and on DATE dismissed the above complaint , stating that the applicant had failed to show a reasonable suspicion for his allegations . The applicant was instructed that he might takeover the prosecution .", "On DATE the applicant lodged a request for an investigation with ORG Istražni Odjel Županijskog suda u Varaždinu ) , with the same allegations . The investigating judge of that court instructed the applicant that for the offence allegedly committed by GPE and TIME he had to file a motion for prosecution ( optužni prijedlog ) with the competent municipal court . Concerning the allegations against ORG investigation judge examined the reports on the control of the quality of food served to the inmates in the LSP and did not find inadequacy in the quality of food . He expressed his disagreement with the applicant ’s request and forwarded the case - file to the panel of ORG ( PERSON ) to decide thereon .", "On DATE the applicant repeated some of his allegations in a letter to ORG , stating that the dentists in the LSP had administered wrong medication to him .", "On DATE the applicant filed a criminal complaint with ORG ( ORG pravosuđa PERSON ) , alleging that dentist PERSON had poisoned him with wrong medication which had caused him gastritis . He alleged further that he was given the wrong medication and medical treatment by other medical personnel in the prison and was not provided with an adequate diet .", "On DATE the above complaint was forwarded to ORG .", "On DATE the applicant filed with ORG a request for damages caused to him due to the wrong medical treatment and inadequate diet in the LSP .", "By letter of DATE ORG informed the applicant that it had no jurisdiction to decide upon the above request and instructed him to file his request for damages against GPE with a regular civil court .", "On DATE ORG accepted the investigating judge ’s disagreement with the applicant ’s request for an investigation of DATE . It stated that in respect of the applicant ’s allegations against the medical personnel of the LSP for the offence of medical malpractice the applicant was not entitled , according to the relevant provisions of LAW , to request an investigation but , instead , had to file a motion to indict with the competent court . As regards the applicant ’s allegations against the director of the LSP the court accepted the report submitted by the investigating judge who had found , based on the reports of the inspection regularly conducted in the LSP , that the quality of food for the inmates was adequate .", "On DATE the applicant appealed against the above decision to ORG .", "On DATE the applicant filed with ORG ( PERSON ) a motion to indict PERSON and PERSON , dentists in the prison , and PERSON , the director of the prison . He repeated his allegations against them .", "On DATE ORG ( PERSON ) dismissed various of the applicant ’s motions to indict CARDINAL judges of ORG , the director of the LSP , a member of the prison personnel and CARDINAL prison dentists . In respect of the allegations against the prison director , a member of the prison personnel and CARDINAL dentists , the court found that the applicant had previously filed a criminal complaint and a request for an investigation with the public prosecutor , which were dismissed , of alleged medical malpractice and abuse of the office and official authority , while in his motion to indict he had alleged that they had accepted a bribe . Accordingly , he had to file a criminal complaint with the competent public prosecutor for alleged bribing .", "On DATE the applicant filed a criminal complaint with ORG against the medical personnel in the LSP for “ the brutal treatment of the wounded , sick and prisoners of war and medical malpractice ” alleging that they had administered to him wrong medication and failed to provide him with adequate medical treatment for his various illnesses . He also requested compensation for physical and mental suffering caused to him by ill - treatment in prison .", "On DATE the applicant appealed against ORG decision of CARDINAL DATE to ORG .", "On DATE the applicant wrote to ORG alleging , inter alia , that the LSP authorities had been depriving him of medical assistance .", "On DATE ORG ( PERSON ) upheld ORG decision of DATE accepting the investigating judge ’s disagreement with the applicant ’s request for an investigation .", "On DATE the applicant lodged a constitutional complaint against ORG decision .", "On DATE ORG ( Ustavni sud PERSON ) rejected the applicant ’s complaint as inadmissible .", "On DATE ORG rejected the applicant ’s appeal against ORG decision of CARDINAL DATE . The applicant then filed a constitutional complaint against that decision . On DATE ORG rejected the complaint as inadmissible .", "On DATE the ORG director adopted a disciplinary measure against the applicant , ordering solitary confinement for DATE , for using obscene and insulting language against the prison personnel in his letter of DATE sent to ORG .", "On DATE the applicant filed a motion with ORG to indict PERSON , the prison director , his deputy and CARDINAL other members of the prison personnel alleging that the deputy director had ordered solitary confinement against him for DATE and that he had threatened to kill the applicant if he continued to file criminal complaints against him . The applicant alleged also that the members of the prison personnel had tortured him , attempted to poison him and prevented him from receiving medical treatment .", "On DATE the applicant sent a letter to the president of GPE repeating his allegations against the prison personnel .", "On DATE the applicant appealed to the LSP director against the decision ordering disciplinary measure against him .", "On DATE the LSP director dismissed the applicant ’s appeal .", "On DATE the applicant was placed in solitary confinement for DATE .", "According to the Government , before he was placed in solitary confinement , the applicant had been examined by a doctor who found that the applicant ’s health condition apart from slight digestive problems and minor back - pain was well .", "According to the applicant his health was not well because he suffered pain in his joints which were broken .", "On DATE the Minister of ORG visited the applicant in solitary confinement . He talked to the applicant for TIME and the applicant did not complain about his treatment in solitary confinement .", "On DATE the applicant filed with ORG additional submissions to his previous motions to indict the director of the LSP and CARDINAL other members of the prison authorities . He alleged , inter alia , that the prison authorities had placed him in a solitary confinement for DATE although he was seriously ill and prevented him from using his bed during DATE . In addition he maintained his allegation that the deputy director had threatened to kill him if he continued with his allegations against the prison authorities . The submissions were sent to ORG .", "The applicant was medically examined once again DATE after being released from solitary confinement , on DATE because he complained that he had breathing problems . The doctor stated that the applicant had for DATE been suffering from breathing problems through nose , from nose secretion and headache .", "On DATE the applicant sent a letter to ORG alleging that he had been tortured in the LSP .", "On DATE the applicant wrote to ORG alleging that the LSP authorities had been confiscating his letters , torturing him and depriving him of medical assistance .", "On DATE ORG informed the applicant that it found no ground to institute criminal proceedings against the LSP personnel . It also pointed out that the applicant had not submitted any evidence in support of his allegations .", "On DATE the applicant filed yet another motion with ORG to indict the prison director and CARDINAL other members of the prison authorities , repeating his previous allegations .", "On DATE the applicant sent a letter to ORG alleging that he had been physically attacked by inmates and prison guards and requesting to be taken to another department ." ]

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[ "The applicant was born in DATE and lives in ORG , a town in LOC .", "On an unspecified date the economic crimes bureau of ORG ( PERSON по борьбе с экономическими преступлениями ORG по Новосибирской области DATE “ the economic crimes bureau ” ) obtained information concerning the circulation of counterfeit money in town . Based on the above information and pursuant to LAW the economic crimes bureau instituted operational proceedings ( дело оперативного учета ) .", "In the course of the operational proceedings at issue the economic crimes bureau discovered incidents of forgery of official documents .", "Following the approval of the report on the operational - search activities conducted within the framework of the operational proceedings at issue , on DATE in accordance with LAW the Deputy Head of ORG decided to carry out a test purchase in the applicant ’s flat . The reason for that decision had been the information that the applicant was involved in unlawful activity consisting in forgery of banknotes and official documents entitling its holders to certain benefits or exonerating them of duties and obligations . On DATE criminal proceedings were instituted against the applicant on suspicion of counterfeiting .", "On DATE CARDINAL plain - clothes police officers , PERSON and PERSON , came to the applicant ’s flat to carry out the test purchase . The officers said that they were a husband and wife wishing to obtain a copy of a high - school graduation certificate . The applicant invited the visitors to come in , scanned the documents handed over by the “ husband ” , then , at the “ clients’ ” request , changed the name of the holder and certain grades . Then he made colour printouts and asked for MONEY by way of payment .", "According to the applicant , when the “ clients ” were on their way out , a police squad and an investigator who had been waiting outside in the meantime burst into the applicant ’s flat .", "According to the Government , after the test purchase had been completed the applicant saw the “ clients ” to the door , opened it , and the police officers who had been waiting outside in the meantime entered the flat . They showed their identification documents and informed the applicant of the purpose of their visit . After that the forgery of a document was reported to an investigator of the investigative department of ORG . When the investigator arrived to the applicant ’s flat , the applicant ’s wife opened the door . Upon her permission the investigator entered the flat . The applicant did not object to the investigator ’s presence . After the attesting witnesses had been invited the investigator explained to the applicant and those present that there were reasons to believe that the applicant had committed forgery of an official document and expressed his will to conduct an investigative action – inspection of the crime scene . The applicant and his wife gave their consent .", "NORP The investigator inspected the applicant ’s flat as a crime scene and seized material evidence . In accordance with LAW he drew up a record of the inspection . The record attests to the fact that on DATE from TIME in accordance with ORG CARDINAL - CARDINAL of the Code and in the presence of CARDINAL attesting witnesses , the applicant and his wife , the investigator carried out the inspection of the applicant ’s flat . The record set out in detail the descriptions of the flat and the seized evidence ( computer gear ) .", "Thereafter the applicant was taken to the police station where he was detained until TIME on DATE .", "On DATE the investigator opened another criminal case against the applicant and charged him with forgery of official documents .", "The applicant brought a complaint against the police squad and the investigator , alleging that they had conducted an unlawful search of his LOC , thus violating his right to respect for his home , and that they had frisked him and seized his belongings . In particular , the applicant complained that when police officers PERSON and PERSON were on their way out an armed squad burst into his flat , shouting and threatening . He was thrown to the floor his hands tightly tied behind his back and dealt several blows to his side and the lower part of his back . The squad frisked him and handcuffed him . Afterwards the applicant was informed that the armed persons were police . The attesting witnesses were called , and what the applicant believed to have been a search began , without any prior approval by the prosecutor . The “ search ” lasted TIME . From the conversation of the police officers the applicant understood that they were searching for drugs and arms . After the “ search ” was over some of the applicant ’s belongings were put in boxes and seized . Later the applicant was informed with the record of the investigative action in question , from which he learned that it had been an inspection of the crime scene .", "On DATE ORG of GPE rejected the applicant ’s complaint as unsubstantiated . The court found as follows :", "“ ... On DATE the investigator [ name ] arrived at [ the applicant ’s address ] in connection with information about the crime , where he conducted , with attesting witnesses , the inspection of the scene of the crime . The investigative action in question was registered in the record of inspection of the crime scene ... The above circumstance is confirmed by the record dated DATE ; a statement by [ the head of the police squad ] in which he confirmed that ... following a signal from [ police officer PERSON ] the police squad arrested [ the applicant ] . [ The investigator ] arrived TIME later and inspected the scene of the crime . [ The above circumstance is further confirmed ] by : statement of [ police officer PERSON ] in which he confirmed that after the test purchase was completed he informed the police squad accordingly through a radio transmitter , following which he came to the door , opened it , the police squad entered the flat and arrested [ the applicant ] ; then [ the investigator ] was called and conducted the inspection of the scene of the crime ; a statement by [ a member of the police squad ] who confirmed that on DATE a test purchase was carried out ; he and [ CARDINAL other members of the squad ] were waiting for a signal from [ police officer PERSON ] to arrest [ the applicant ] . After the signal was received they entered the flat , then called the investigator , who entered the flat and conducted the inspection of the scene of the crime TIME ; statements of [ CARDINAL attesting witness ] who assisted at the inspection of [ the applicant ’s ] flat .", "On the basis of the above , taking into account that [ the investigator ] arrived at [ the applicant ’s address ] at the scene of the crime , the actions of [ the investigator ] do not indicate that there was an unlawful entry to a dwelling .", "The RSFSR Code of Criminal Procedure did not oblige the investigator to hand over the record of the inspection to [ the applicant ] .", "In accordance with Articles CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure during the inspection [ the investigator ] had the right to seize the uncovered traces of crime and other physical evidence . At that [ the applicant ’s ] participation was not obligatory .", "It has not been established that [ the investigator ] body - searched [ the applicant ] .", "... ”", "As regards the applicant ’s allegations in so far as they concerned the actions of the police squad , the court indicated that the applicant had failed to follow the procedure established by law for challenging police actions ( namely , LAW and the PERSON on complaints about actions and decisions impinging upon the rights and freedoms of citizens ) and refused to examine the relevant part of the complaint on the merits .", "On DATE ORG upheld the decision of DATE on appeal .", "On DATE ORG of the Novosibirsk Region convicted the applicant . It is unclear whether the applicant appealed against the judgment .", "The LAW of the Russian Federation establishes that the home is inviolable . No one shall enter a dwelling against the will of those living there , unless otherwise established by a federal law or in accordance with a court order ( LAW ) .", "The LAW further provides that everyone shall be guaranteed judicial protection of his rights and freedoms . Decisions and actions ( or inaction ) of bodies of state authority and local self - government , public associations and officials may be appealed against in court ( LAW ) .", "The RSFSR Code of Criminal Procedure ( Law of DATE , in force until DATE ) replicated the constitutional principle that no one should penetrate into a home against the will of those living there without legal grounds . Search , seizure and inspection of residential LOC could be carried out only on the grounds , and in accordance with the procedure , provided by LAW .", "The Code provided specifically that an investigator could carry out an inspection of a crime scene , location , LOC , physical objects or documents in order to detect traces of a crime or other physical evidence , to clarify the scene of the crime and other relevant circumstances . In urgent cases the inspection could be carried out before opening a criminal case . In such cases , the case was to be opened immediately after the inspection of the crime scene ( LAW ) .", "The inspection of the crime scene had to be carried out in the presence of attesting witnesses . The investigator could also solicit the participation of an accused , a suspect , a victim , a witness and an expert . When carrying out the inspection the investigator could take measurements , photos , use video recording , draw plans and schemes , and make moulds and take impressions of footprints . If necessary , the investigator could seize the evidence discovered ( LAW ) .", "A record of the inspection had to be drawn up by the investigator and signed by all persons who took part in the investigative measure ( Articles CARDINAL and CARDINAL of the Code ) .", "The Code of Criminal Procedure of GPE ( Law no . CARDINAL of DATE , in force as from DATE ) provides for judicial review of decisions of investigators that might infringe the constitutional rights of participants in the proceedings or prevent a person ’s access to court ( Article CARDINAL ) .", "The Operational - Search Activities Act ( Law no . CARDINAL-FZ of CARDINAL DATE ) lists a number of techniques that may be used by law - enforcement or security authorities for the purposes of , inter alia , investigating and preventing offences ( section CARDINAL ) . In particular , the police may carry out a “ test purchase ” ( проверочная закупка ) where , inter alia , a criminal case has been opened or information concerning the preparation or commission of an offence has become known to the police and the available data are insufficient to bring criminal proceedings ( section CARDINAL ) . The taking of operational - search measures which interfere with ORG constitutional rights to respect for their correspondence , telephone communications and home is allowed if authorised , as a general rule , by a court ( section CARDINAL) . The “ test purchase ” of goods , the free sale of which is prohibited , and certain undercover operations by agents or persons assisting them , are carried out on the basis of a decision sanctioned by the head of an agency engaged in operational - search activities ( section CARDINAL) . The agencies charged with operational - search activities may create and use information systems and institute operational proceedings . The operational proceedings are instituted on the grounds listed in section CARDINAL of the Act for the purposes of collection and systematisation of information , verification and evaluation of the results of the operational - search activities , and taking the relevant decisions by the agencies charged with operational - search activities . The institution of operational proceedings may not serve as a ground for restriction of constitutional rights and freedoms and lawful interests of an individual and a citizen ( section CARDINAL ) . Results of operational - search activities can serve as a basis for bringing criminal proceedings and can be used as evidence in accordance with the legislation on criminal procedure ( section CARDINAL ) .", "LAW ( Law no . CARDINAL-I of DATE ) provides that the police may enter the dwelling against the will of those living there if there is a reason to believe that a crime has been committed there ( section CARDINAL ) . Actions or inaction on the part of a police officer can be appealed against to a higher police official , a prosecutor or a court ( section CARDINAL ) .", "The PERSON on complaints about actions and decisions impinging upon the rights and freedoms of citizens ( PERSON no . ORG of DATE ) provides that a court of general jurisdiction may hear complaints about actions or decisions of ORG and public officials which infringe ORG rights or freedoms or prevent citizens from exercising their rights and freedoms . It is incumbent on the officials concerned to demonstrate the lawfulness of their actions or decisions ( section CARDINAL ) ." ]

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[ "The first applicant , ORG , is a company incorporated in GPE and GPE which is the publisher of ORG , a magazine published DATE in GPE and GPE . The second applicant , PERSON , is a NORP national who is the editor - in - chief of ORG and lives in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "PERSON ( “ RP ” ) , a well - known film director who held dual NORP and NORP nationality , had pleaded guilty in DATE in GPE ( “ GPE ” ) to unlawful sexual intercourse with a CARDINAL-year - old girl . He fled from the GPE before sentencing . Thereafter he lived in GPE from where , being a NORP citizen , he could not be extradited to the GPE .", "In DATE the applicants published in the DATE issue of ORG an article concerning ORG which described how he had allegedly tried to seduce a NORP model at a fashionable GPE nightspot shortly after his pregnant wife ’s murder in DATE . He brought an action in GPE for libel against ORG and , fearing possible arrest and extradition to the GPE , applied to give his evidence by video conference link ( “ VCF ” ) .", "On DATE ORG ordered that RP be permitted to give his evidence in the libel trial by ORG from a GPE hotel . It was noted that the technology to be used would be of a high standard and that in ORG evidence there was generally very little delay , very little room for confusion and cross - examination could take place at the same pace as if a witness were present at court . On DATE ORG allowed the appeal of the applicants . It was considered that it was “ clearly an indulgence ” to permit RP to give his evidence by ORG and the real question was whether , as a matter of policy in the particular circumstances of this case , that indulgence should be granted . It was considered that the court ’s general policy should be to discourage litigants from escaping the normal processes of the law , rather than to facilitate it , so that , accordingly , the judge had erred in making the ORG order which should be set aside .", "On DATE ORG allowed an appeal by ORG by a majority of CARDINAL - CARDINAL .", "Lord PERSON of GPE , delivering the leading majority speech , with whom Lord Hope of PERSON and ORG of GPE agreed , found that there was no doubt that , as between ORG and ORG , the judge ’s order was rightly made . The test of the relevant Practice Direction for the use of ORG , namely that it could be allowed to save costs and where it would be beneficial to the efficient , fair and economic disposal of the litigation , was satisfied in the circumstances .", "RP was entitled to bring his action in GPE where the offending article had been published . His flight from the GPE in DATE and the steps he had taken ever since to remain beyond the reach of the GPE court , did not preclude him from bringing proceedings in GPE in respect of damage to his reputation flowing from publication of defamatory material in GPE . Hence , the libel proceedings did not constitute an abuse of the process of the court . A direction that ORG ’s evidence might be given by means of ORG , an entirely satisfactory means of giving evidence , would not prejudice ORG to any significant extent ; indeed , any prejudice would more likely be suffered by ORG by reason of the lessened impact of his evidence and celebrity status on the jury . Improvements in technology enabled ORG ’s evidence to be tested as adequately if given by ORG as it would be if given in court . If a ORG order were refused , RP would be gravely handicapped in the conduct of the proceedings . In practice he would either abandon his action or , possibly , continue but under the serious disadvantage that his oral evidence on the crucial dispute of fact , concerning what took place at the restaurant , would not be placed before the jury . Either way , in its conduct of the litigation ORG would receive an unjustified windfall at the expense of ORG . ORG would find itself in the fortunate position of not being called to account for having published what might be a serious libel .", "Whether the use of the court ’s procedures in a particular way would bring the administration of justice into disrepute or would be an affront to the public conscience , called for an overall balanced view . A fugitive from justice was not as such precluded from enforcing his rights through the courts of GPE . RP ’s status as a fugitive offender did not deprive him of any rights he would otherwise possess in respect of the subject matter of his action . The contrary approach , adopted in the name of the public interest , would lead to wholly unacceptable results in practice . It would mean that for so long as a fugitive remained on the run from the criminal law , his property and other rights could be breached with impunity . That could not be right . Such harshness had no place in the law that knew no principle of fugitive disentitlement .", "Although a direction that a fugitive such as ORG may give his evidence by use of ORG was a departure from the normal way a claimant gives evidence in libel proceedings , the extent of this departure should not be exaggerated ; it was expressly sanctioned by ORG and was not an indulgence . Despite his status , a fugitive from justice was entitled to invoke the assistance of the court and its procedures in protection of his civil rights . He could bring or defend proceedings even though he was , and remained , a fugitive . If he was entitled to lodge such proceedings there could be little rhyme or reason in withholding from him a procedural facility flowing from a modern technological development which was now readily available to all litigants . To withhold that facility would be to penalise him because of his status . The appeal was to be allowed and the judge ’s order restored .", "Lord PERSON of GPE dissented . He noted that there were CARDINAL policy considerations arising in the present case which were in conflict . The first was that the court should not frustrate the claimant ’s accepted right to sue in the civil courts by refusing a procedural step provided for by the Rules when there was no valid reason to do so . The second was that the civil courts should not take steps the effect of which was to frustrate or impede the due execution of the criminal procedure of another ORG with which GPE had an extradition treaty and under which , if the appellant were in GPE , GPE would be required to respond to a request for his extradition so that he could be sentenced and obliged to comply with any sentence imposed .", "Although it was recognised that the fact that ORG was a fugitive offender did not bar him from starting proceedings , there was only CARDINAL reason for the request of the order which was to avoid the risk or likelihood of arrest and extradition and to escape sentence and punishment in the GPE for an admitted offence . To accede to his request in the absence of other overriding considerations compelling the grant of the application , would be contrary to public or judicial policy .", "Where a person convicted on his own admission fled the jurisdiction , in the absence of special factors compelling a different result , a ORG order may and should be refused where the sole reason for asking for it was that he wished to escape conviction or sentence in the country where he had commenced proceedings or to avoid extradition to another country for the same reason .", "Lord PERSON also dissented , finding that although it was not necessary to import into the GPE legal system the full rigour of the fugitive offender doctrine as it applied in the GPE , permitting a fugitive to give his evidence by ORG so that he could stay out of the jurisdiction and avoid arrest affronted the public conscience and brought the administration of justice into disrepute . Moreover , it was noted that excluding the claimant from presenting his case in court by ORG would not constitute a breach of LAW as the right of access to court is not absolute .", "The trial took place in DATE . RP gave evidence by ORG from a GPE hotel suite and the editor and eyewitnesses came to the GPE and gave evidence in person . The applicants claim that ORG ’s cross - examination by ORG was made difficult for defence counsel given delays and inaudibility . On DATE the jury found for ORG and awarded him MONEY ( GBP ) in damages . The applicants did not lodge an appeal .", "LAW DATE provides , in so far as relevant , that :", "“ CARDINAL.—(CARDINAL ) In civil proceedings evidence shall not be excluded on the ground that it is hearsay .", "( ... )", "Rules of court may provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness , any other party to the proceedings may , with the leave of the court , call that person as a witness and cross - examine him on the statement as if he had been called by the first - mentioned party and as if the hearsay statement were his evidence in chief . ”", "PERSON of ORG ( “ LAW ” ) provides :", "“ ( I ) The ORG may control the evidence by giving directions as to ...", "( c ) the way in which the evidence is to be placed before the court . ”", "Annex CARDINAL to the Practice Direction to the ORG , Pt CARDINAL sets out video conferencing guidance . Paragraph CARDINAL of that guidance states :", "“ ORG may be a convenient way of dealing with any part of proceedings : it can involve considerable savings in time and cost . Its use for the taking of evidence from overseas witnesses will , in particular , be likely to achieve material saving of costs , and such savings may also be achieved by its use for taking domestic evidence . It is , however , inevitably not as ideal as having the witness physically present in court . Its convenience should not therefore be allowed to dictate its use . A judgment must be made in every case in which the use of ORG is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient , fair and economic disposal of the litigation . In particular , it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it . ”" ]

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[ "On DATE the applicants left the former GPE clandestinely . Since DATE the first applicant has been a permanent resident of GPE , where he was naturalised in DATE , while keeping NORP nationality . The second applicant settled in GPE in DATE . On DATE he obtained NORP nationality , automatically losing NORP nationality in accordance with the bilateral treaty of DATE on naturalisation . On DATE he acquired NORP nationality .", "After the applicants had emigrated all their immovable property , namely QUANTITY houses in GPE , a detached house and adjoining land in Želízy , together with movable property in the shape of CARDINAL books from the library of the famous singer PERSON ( PERSON ) , were seized and administered by the local communist authorities . On DATE ORG ( lidový soud ) ordered the confiscation of this property .", "After the change of regime in DATE the applicants began to take steps to recover their former possessions .", "On DATE ( DATE according to the Government ) the first applicant brought proceedings in ORG ( of over ) for recovery of the land in Želízy , under LAW ( Law no . CARDINAL/CARDINAL .", "...", "On DATE ... the ORG gave judgment , dismissing the action brought by the first applicant to prove that he was the owner of the land in Želízy .", "On DATE the applicant appealed .", "...", "On DATE ORG ( krajský soud ) set aside the first - instance judgment and remitted the case to ORG .", "...", "On DATE ORG again dismissed the applicant 's action , noting that he had not corrected its procedural defects in the time allowed .", "...", "On DATE ORG dismissed the applicant 's appeal of DATE ; the ORG asserted that the case was finally concluded on DATE .", "On DATE ( DATE according to ORG ) the second applicant brought an action for recovery in ORG against the current owners of the detached house and land in Želízy .", "...", "On DATE the ORG gave judgment on the merits , dismissing the second applicant 's action . The judgment became final on DATE .", "On DATE ( DATE according to ORG ) the second applicant brought an action against ORG for recovery of the houses under LAW . CARDINAL/CARDINAL and CARDINAL .", "...", "At the end of the hearing on CARDINAL DATE ORG dismissed the applicant 's action on the ground with that he was not a NORP national and was therefore not entitled to obtain recovery of the houses he claimed .", "On DATE the applicant appealed to ORG ( městský soud ) , arguing that the condition of NORP nationality was of negligible importance , since he had been a NORP citizen at the time when his property was confiscated .", "On DATE , in accordance with Law no . CARDINAL , he obtained a certificate of NORP nationality , issued by ORG , and became on that date a citizen of GPE .", "On DATE the applicant brought a new action against the district of GPE CARDINAL seeking recovery of CARDINAL of the houses concerned . A hearing was set down for DATE .", "On DATE ORG dismissed the second applicant 's appeal of DATE against the judgment of ORG . The decision concerned was thus upheld and became final on DATE .", "Under LAW , everyone is entitled , inter alia , to a hearing within a reasonable time .", "Section CARDINAL ) provides that judges are required to rule impartially and fairly and without delay .", "By virtue of section DATE ) it is possible to lodge complaints with the organs of the judicial system ( such as presidents of courts , or ORG ) concerning the way courts have conducted judicial proceedings , whether these concern delays , inappropriate behaviour on the part of persons invested with judicial functions or interference with the proper conduct of court proceedings . An appellant is entitled to obtain information on the measures the supervisory authority has taken in response to his appeal , but the latter does not give him a personal right to require the ORG to exercise its supervisory powers .", "Section CARDINAL ) provided that the ORG was liable for damage caused by an irregularity committed in the exercise of their official duties by persons vested with public authority .", "The ORG incurred strict liability when the following CARDINAL conditions were satisfied : quantifiable pecuniary damage ; an irregularity in the official proceedings of a ORG authority ; and a causal connection between the CARDINAL .", "The Government cited in their observations CARDINAL cases ( nos . CARDINAL C CARDINAL/CARDINAL and CARDINAL C CARDINAL/CARDINAL ) in which claimants had been awarded compensation under PERSON no . TIME for pecuniary damage caused by over - lengthy proceedings .", "Section CARDINAL provides that the ORG is liable for damage caused by an irregularity in the conduct of proceedings , including non - compliance with the obligation to perform an act or give a decision within the statutory time - limit . A person who has suffered loss on account of such an irregularity is entitled to damages which section GPE ) requires to include reimbursement of the costs incurred by the claimant in respect of the proceedings in which the irregularity occurred , in so far as those costs are linked to the irregularity .", "Section CARDINAL(CARDINAL ) provides that when ORG upholds a constitutional appeal it must either set aside the impugned decision by a public authority or , where the infringement of a right guaranteed by LAW is the result of an interference other than a decision , forbid the authority concerned to continue to infringe the right and order it to re - establish the status quo if that is possible .", "ORG case - law shows that , in order to be able to declare admissible a constitutional appeal concerning the length of proceedings , it requires the appellant to have appealed to the organs of the judicial system . Where it finds an infringement of the right guaranteed by LAW it may order the court to put an end to the delay and expedite the proceedings ( as it did in cases nos . I ÚS CARDINAL/CARDINAL and I ÚS CARDINAL/CARDINAL , cited by the Government in their observations ) , but is not empowered to award compensation to the appellant .", "In their additional observations of CARDINAL DATE the ORG gave a fuller account of ORG case - law on the question . In addition to the CARDINAL judgments mentioned in the final decision on admissibility in the case of ORG v. GPE ( application no . CARDINAL , CARDINAL DATE , unreported ) they referred to the following judgments :", "– no . III . ÚS CARDINAL/CARDINAL : on DATE ORG dismissed the appeal on delays in guardianship proceedings on the ground that the appellant had contributed by his conduct to the prolongation of the proceedings .", "– no . III . ÚS CARDINAL : on DATE ORG found that ORG ( vrchní soud ) had infringed with the appellant 's right to have his case heard without unjustified delays . It held that such an infringement would not justify setting aside a decision which had become final unless the delays had led to the infringement of other LAW rights . Procedural delays alone , therefore , did not constitute grounds for setting the decision aside .", "– no . III . ÚS CARDINAL/CARDINAL : in this judgement of DATE ORG tried to establish a distinction between the judicial and administrative elements of judicial power by imputing the delays caused by the courts ' excessive workload to the administrative element alone .", "– no . Pl . ÚS CARDINAL/CARDINAL : on CARDINAL DATE the full court of ORG decided that the right to a hearing without unjustified delays corresponded to the courts ' obligation to comply with the principle of fair trial , without it being possible to draw a distinction between the various elements of judicial power .", "– no . II . ÚS CARDINAL/CARDINAL : on DATE ORG held that delays in proceedings concerning the award of damages could infringe the constitutional right to judicial protection . It therefore ordered the court concerned to expedite the proceedings .", "– no . IV . ÚS CARDINAL/CARDINAL : in its judgment of DATE ORG ordered the court concerned to expedite the proceedings and implement the execution it had ordered . ORG", "– no . IV . ÚS CARDINAL/CARDINAL : in this judgment of CARDINAL DATE ORG held that delays in proceedings already concluded by a decision which had become final did not in themselves amount to a breach of LAW . Setting aside the impugned decision , in a situation where ORG did not have any other means of protecting LAW rights , would be justified only if procedural delays had entailed an infringement of the principle of fair trial or other substantive rights guaranteed by LAW . The appellants had alleged nothing of the sort , nor had they appealed to the president of the court under the PERSON on courts and judges .", "– no . I. ÚS CARDINAL/CARDINAL : on DATE ORG ordered the lower court to cease to infringe an appellant 's right under LAW and to hear his claim without delay . It reiterated that procedural delays were not justified by the courts ' excessive workload and that in such situations it was essential , before lodging a constitutional appeal , to apply to the president of the court in question by lodging an appeal under the LAW on courts and judges . There were however exceptions to that rule since the remedy concerned could not be insisted upon where it proved to be manifestly ineffective ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicants , PERSON ( “ the first applicant ” ) , Mr PERSON ( “ the second applicant ” ) and Mr PERSON ( “ the third applicant ” ) , are NORP nationals , who were born in DATE , DATE respectively and live in NORP . The first and second applicants are the parents of the third applicant .", "CARDINAL , may be summarised as follows .", "As established in the course of the proceedings described below , companies PERSON and PERSON ( “ the companies ” ) started to construct a local telephone network . Heavy concrete pillars were unloaded on a children ’s playground , which was near the construction site . At TIME on DATE GPE , the DATE daughter of the first and second applicants , slipped and fell to the ground while climbing on the pillars . CARDINAL pillar became dislodged and fell on top of her . As a result , she suffered serious head injuries and died on the spot . The third applicant , who was then DATE , was present at the time and witnessed the accident .", "On DATE ORG office lodged an indictment of its own motion against Mr PERSON and Mr GPE , employees in the companies responsible for the construction , accusing them of criminal offences directed against public safety . The first and second applicants took part in the proceedings as victims ( оштетени ) .", "On DATE ORG Instance found the accused guilty and sentenced them each to CARDINAL years’ imprisonment . The court held that , contrary to the applicable rules , they had failed to secure the construction site and the concrete pillars in order to avoid any risk of fatal consequences . It further advised the applicants that they could claim compensation by means of a separate civil action before the civil courts .", "On DATE ORG accepted appeals by the accused and remitted the case to the trial court for a fresh examination . It ordered the trial court to reconsider the available evidence in order to establish whether the accused had been responsible for placing and securing the concrete pillars . It further rejected as inadmissible an appeal by the first and second applicants in which they complained about the penalty imposed .", "On DATE the trial court acquitted PERSON , finding that he had not been responsible for the storage and unloading of the pillars . On the other hand , it convicted PERSON and sentenced him to DATE imprisonment since he had authorised for the pillars to be unloaded and left unsecured in the vicinity of the children ’s playground , despite the fact that he ought to have known that they were dangerous objects . The first and second applicants were again instructed that they could seek compensation before the civil courts . On DATE the trial court rejected an appeal by the first and second applicants , finding that they had participated in the proceedings as victims and that they had been entitled , under the law , to challenge the judgment only in respect of the trial costs . Their appeal , by which they had challenged the merits of the judgment , had accordingly been inadmissible .", "On DATE ORG dismissed appeals by the public prosecutor and the first and second applicants ( against the trial court ’s decision of CARDINAL DATE ) and allowed an appeal by PERSON As to the latter , the court dropped the charges on the ground that the prosecution of the offence had become timebarred .", "NORP In DATE ORG informed the first and second applicants that on DATE ORG ( PERSON на ORG ) had dismissed the trial judge from office .", "In DATE the applicants lodged civil action for damages with ORG claiming compensation from the CARDINAL companies concerned ; company B. that was also involved in the construction ; the municipality of NORP and the ORG ( on behalf of ORG office and the first - instance court ) for the pecuniary and non - pecuniary loss sustained as a result of the death of GPE According to the applicants , no action had been taken in respect of their claim until DATE , when their case was transferred to ORG for consideration .", "On DATE ORG of First Instance partly ruled in the applicants’ favour . Referring to the findings of the criminal courts , the court ruled that the companies were at fault for having stored the concrete pillars unsecured on the children ’s playground . It thus awarded the applicants MONEY ( ORG ) in respect of pecuniary damage for funeral costs and MKD CARDINAL,CARDINAL,CARDINAL in respect of non - pecuniary damage on account of the mental distress caused . The court fixed the interest at the statutory rate to be calculated from the date of GPE ’s funeral ( in respect of the pecuniary damage ) and from DATE of the judgment ( concerning the non - pecuniary damage ) . It dismissed the ORG claim against the municipality of NORP and the ORG , finding no evidence that any responsibility could be attributed to them for the damage sustained . Lastly , it awarded the applicants ORG CARDINAL,CARDINAL for the trial costs incurred in the compensation proceedings . It dismissed their claim for reimbursement of the trial costs incurred in the criminal proceedings against Mr PERSON and Mr GPE , arguing that they could only have been claimed in the course of those proceedings . On appeal by the applicants , in DATE ORG quashed that judgment and ordered a retrial .", "On DATE the first - instance court again partly allowed the applicants’ claim and awarded them the same amount in respect of pecuniary damage . It also increased the award in respect of non - pecuniary damage to MKD CARDINAL,CARDINAL,CARDINAL and it awarded them MKD CARDINAL,CARDINAL for the trial costs incurred in those proceedings . It dismissed the claim against the municipality for lack of evidence and it noted that the applicants had withdrawn the claim against the ORG .", "On DATE ORG overturned that judgment and increased the amount of compensation awarded in respect of non - pecuniary damage by an additional MKD CARDINAL,CARDINAL It also amended the decision regarding the calculation of the interest . The rest of the first - instance court ’s judgment remained the same . Consequently , the final award was set at FAC ( approximately EUR CARDINAL,CARDINAL ) in respect of pecuniary damage ; MKD CARDINAL,CARDINAL,CARDINAL ( approximately EUR CARDINAL,CARDINAL ) in respect of non - pecuniary damage and MKD CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) in respect of trial costs and expenses .", "Section CARDINAL(CARDINAL ) of LAW provides that civil courts are bound by decisions given by criminal courts finding an accused guilty , in respect of the commission of the offence and the convict ’s criminal responsibility .", "Section CARDINAL enumerates grounds under which civil proceedings are suspended ipso jure . Under section CARDINAL ) , the civil court may suspend proceedings if the decision depends on whether a criminal offence prosecutable ab initio was committed , who the perpetrator was and if he or she was guilty .", "Pursuant to LAW , prosecution of offences subject to a prison sentence of DATE becomes statute - barred DATE after the offence was committed .", "Under LAW of LAW , a prosecution will in any event be barred by prescription after a period equal to double the length of the statutory limitation period for prosecution of the offence has elapsed ." ]

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[ "Prior to the events at issue , in DATE , the applicant was convicted of theft and served a prison term . Several other sets of criminal proceedings were opened against him , some of which were terminated on the basis that the applicant , who suffered from schizophrenia , was found to be of unsound mind and therefore not criminally liable .", "After DATE the applicant spent DATE in GPE until his expulsion on an unspecified date .", "On DATE CARDINAL persons were robbed and murdered in their home in GPE .", "On DATE the applicant was arrested , remanded in custody and charged with CARDINAL counts of murder . The charges were later amended to robbery aggravated by murder .", "In the course of the investigation approximately twenty witnesses were examined , some of them repeatedly . The investigator ordered numerous expert reports , including autopsies , analyses of blood stains and tissue , ballistic reports and reports by psychiatrists on the applicant 's mental health . Several witness confrontations and identity parades were organised and other evidence was collected .", "For DATE the case was dealt with by prosecution authorities at a number of levels in relation to the applicant 's request for a third psychiatric examination ( see paragraphs DATE below ) and , additionally , on account of divergent views expressed by the investigator and prosecutors as regards the precise legal characterisation of the charges . On DATE ORG submitted to ORG an indictment against the applicant .", "The trial started in DATE . During the period when the applicant was deprived of his liberty CARDINAL hearings were held . The hearing held on DATE was adjourned as some of the psychiatric experts who had examined the applicant were absent . The next hearing took place on CARDINAL and DATE , when the court examined CARDINAL witnesses and QUANTITY experts . Another hearing was held on DATE .", "NORP In a judgment of DATE ORG acquitted the applicant , holding that the charges against him had not been proven .", "This judgment was quashed on DATE by ORG , acting on an appeal by the prosecutor , on the basis that , inter alia , the lower court had failed to examine all relevant facts . The case was remitted to ORG for a fresh examination .", "The proceedings were terminated on an unspecified date following the applicant 's death on DATE .", "Following the applicant 's arrest on DATE , he was remanded in custody by decision of an investigator and a prosecutor who found on the basis of witness testimony and other evidence that there was a reasonable suspicion as to the applicant 's having been involved in the murders committed on DATE .", "The applicant spent an unspecified period in the detention facility of ORG . DATE and DATE he was at ORG of ORG for a psychiatric examination ( see paragraphs CARDINAL below ) .", "On an unspecified date prior to DATE he was transferred to GPE prison .", "On an unspecified date in DATE , while detained in GPE prison , the applicant underwent a medical examination which detected the presence of a lump in his salivary gland . On DATE he was transferred to GPE and admitted to the PERSON prison hospital for the purpose of surgically removing the lump and analysing it with a view to establishing whether it was cancerous or benign . The applicant refused to undergo surgery and on DATE was transferred back to GPE prison .", "On an unspecified date in DATE the applicant appealed against his detention , arguing that he had been unlawfully detained , that he was ill and needed immediate surgery and that there was no longer any risk of his absconding , re - offending or hindering the investigation .", "On DATE ORG examined the applicant and his lawyer in person and dismissed the appeal on the basis that as the applicant had had a previous conviction for a serious wilful offence ( theft ) and had been charged with murder , there was a risk of his absconding or re - offending . As regards the applicant 's health condition , the court noted the medical experts ' opinion that the applicant could undergo surgery and receive adequate treatment in the PERSON prison hospital .", "NORP The applicant appealed stating , among other things , that he did not want to undergo surgery in the PERSON prison hospital because it did not offer appropriate conditions .", "On DATE ORG decided to release the applicant from custody and place him under house arrest . It held that there was sufficient evidence supporting a reasonable suspicion that the applicant had committed an offence and considered that , as correctly assessed by ORG , there was a real risk of his absconding or re - offending . However , the court took into account the applicant 's health . It noted the medical experts ' opinion that the applicant might have developed a tumour of the salivary gland and decided that he would have greater freedom to choose the medical treatment he wished to have if placed under house arrest .", "Following his release from custody the applicant sought and obtained , on DATE , permission to undergo surgery in a GPE hospital . That was performed on an unspecified date before DATE , when he was discharged from hospital .", "NORP In DATE the applicant sought his release from house arrest . That was granted by a decision of DATE of ORG on the basis that the proceedings against him risked exceeding a reasonable time . The applicant was released on bail on an unspecified date .", "In the course of the criminal proceedings it was established that the applicant had been suffering from paranoid schizophrenia since DATE and had been treated in psychiatric hospitals in DATE .", "The investigator in charge of the case ordered an expert report on the applicant 's mental health . He was examined on DATE . The experts , relying mainly on the history of his illness , concluded that the applicant was of unsound mind .", "The investigator ordered a second , more detailed examination by a larger group of experts , and , for that purpose , the applicant 's placement at ORG of ORG .", "The applicant stayed at the psychiatric hospital DATE and DATE , when he was remanded in custody . In their ensuing report submitted on DATE the medical experts considered that the applicant suffered from a form of schizophrenia but was not of unsound mind within the meaning of LAW . The report mentioned that the applicant 's stay in hospital had been effected “ under the conditions of pre - trial detention ” .", "In DATE , and again at DATE , the applicant and his lawyer insisted on a third detailed psychiatric examination in view of the divergent conclusions of the first CARDINAL examinations . The investigator initially refused and the applicant appealed . By decisions of CARDINAL and DATE of the prosecuting authorities , the applicant 's request was granted .", "On DATE the prosecutor in charge of the case wrote to the investigator stating that he did not object to a third examination and that the applicant could be placed in a psychiatric hospital for a period of DATE .", "On DATE the investigator in charge of the case ordered a third psychiatric report to be prepared by a commission of CARDINAL experts and , accordingly , the applicant 's placement at ORG of ORG . The investigator considered that the length of the applicant 's stay was to be decided by the experts . The order referred to LAW , which concerned the commissioning of expert reports . No reference was made to LAW ( see paragraphs CARDINAL below ) .", "The applicant , who was under house arrest at that time , spent DATE ( from DATE to CARDINAL DATE ) at ORG of ORG . In their ensuing report , CARDINAL of the experts came to the conclusion that despite his mental illness the applicant had been of sound mind at all relevant times and the remaining CARDINAL experts considered that he was of unsound mind within the meaning of LAW .", "The experts also stated that the applicant had been placed at ORG “ under conditions of house arrest ” and had complied “ relatively strictly ” with the ensuing restrictions . They stated that towards the end of his stay in the hospital he had occasionally been tense and had made statements that he had been “ fed up ” and would commit suicide or “ blow up the hospital ” .", "The relevant legislation at the time of the events in the present case was LAW ( “ ORG ” ) of DATE ( abrogated with effect from DATE ) .", "Until DATE , LAW ORG provided that confinement in a psychiatric institution for the purpose of effecting a psychiatric examination of a person charged in criminal proceedings could be ordered by a prosecutor or a court . In practice , such measures were ordered by prosecutors where the case was pending at the investigation stage and by judges where the case was pending before a court .", "This provision was amended with effect from DATE . The amended text required a judicial decision in all cases and also introduced a DATE maximum period of confinement ( subject to not CARDINAL extension ) and other procedural guarantees .", "Article CARDINAL was in a chapter of the ORG entitled “ Measures of procedural compulsion ” . This chapter contained separate provisions for various such measures – pre - trial detention , house arrest , bail , undertaking not to leave the place of residence , suspension from office , confinement to a psychiatric hospital and several others . The provisions concerning each measure were phrased and structured as separate rules governing separate measures . The same structure was reproduced in the new ORG in force since DATE .", "At all relevant times , paragraph CARDINAL of LAW provided that the period spent in psychiatric hospital for examination should count as a period of pre - trial detention . The effect of this provision was that persons sentenced to imprisonment could deduct from their prison term the time spent in a psychiatric hospital .", "ORG has issued an instruction for the guidance of health care personnel dealing with persons confined to psychiatric institutions ( Инструкция No . CARDINAL за дейността на здравните органи при настаняване на лица в психиатрични стационари по принудителен ред , ДВ бр.бр. CARDINAL/CARDINAL , CARDINAL/CARDINAL и CARDINAL/CARDINAL ) . It clarifies , in its sections CARDINAL and DATE , that persons in pre - trial detention or serving a prison term are to be placed in facilities for detained persons and held under conditions of detention . The instruction does not mention persons under house arrest .", "Under LAW ORG of DATE , decisions of an investigator could be appealed against to a prosecutor and prosecutors ' decisions to a higher prosecutor .", "Under section CARDINAL ) of the LAW , the ORG is liable for damage caused by forced medical treatment ordered by a court if its decision has been set aside for lack of lawful grounds . Under section CARDINAL(CARDINAL ) of the LAW compensation is available for pre - trial detention set aside for lack of lawful grounds ( construed in judicial practice as compensation in cases of acquittal or discontinuation of criminal proceedings ) . Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the ORG have no claim under general tort law as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; реш. № DATE г. от CARDINAL декември DATE г. , по PERSON № DATE г. на ВС GPE ) ." ]

[ "5" ]

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

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[ "5" ]

[ "5-3" ]

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[ "The applicants , PERSON and PERSON are NORP nationals who were born in DATE , respectively , and live in GPE . The respondent Government are represented by Mr PERSON , Deputy ORG - Secretary , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicants allegedly broke into the house of the first applicant 's husband and , using violence , forced him to sign documents agreeing to the dissolution of their marriage .", "On CARDINAL , DATE and DATE the applicants were interrogated .", "In DATE ORG preferred a bill of indictment against the applicants charging them with ' aggravated extortion ' , punishable by DATE imprisonment under LAW § CARDINAL of LAW .", "ORG held hearings on DATE , DATE and DATE , DATE , CARDINAL May and DATE . On DATE , ORG convicted the applicants of extortion and sentenced them to DATE imprisonment . The execution of the sentence was suspended for DATE .", "On appeal , on DATE the FAC ORG quashed the first instance decision and remitted the case to ORG , essentially on the ground of procedural irregularities .", "In the resumed proceedings before ORG , on DATE the applicants requested the court to postpone the hearing , which had originally been scheduled for TIME on DATE , to TIME on DATE . They claimed that , as they lived in GPE , they could not arrive in LOC in time by public transport . The hearing was eventually re - scheduled for DATE .", "On DATE ORG dismissed the applicants ' motion for bias .", "The hearings of DATE and DATE were adjourned since the applicants did not appear . Meanwhile , on CARDINAL DATE the police unsuccessfully attempted to escort the second applicant to the courtroom .", "On DATE ORG rejected the applicants ' motion that another court be appointed to hear the case .", "On DATE ORG held a hearing . Subsequently it appointed ORG to give an opinion on the first applicant 's health .", "On DATE the court ordered a telephone company to submit some information as evidence .", "A further hearing took place on DATE .", "A hearing scheduled for DATE had to be postponed , apparently because of the first applicant 's illness .", "In reaction to the applicants ' renewed motion for bias , on DATE ORG appointed ORG to hear the case .", "A hearing scheduled by ORG for DATE had to be adjourned as the applicants did not appear .", "On DATE ORG appointed a medical expert to confirm whether the first applicant 's illness was such as to prevent her from appearing at the court hearings . On DATE the expert presented his opinion in which he replied in the negative .", "A hearing scheduled for CARDINAL DATE had to be adjourned as the applicants did not appear .", "On DATE the second applicant was escorted by the police to the courtroom . Subsequently the court held a hearing and heard that applicant , witnesses and an expert .", "On DATE and CARDINAL DATE the court held further hearings and heard the applicants , witnesses and an expert .", "On the latter date the court convicted the applicants of ' infringement of personal liberty ' and sentenced them to DATE imprisonment . The execution of the sentence was suspended for DATE .", "On DATE both the applicants and the prosecutor appealed . The proceedings are still pending at second instance .", "The applicants allege that , during the proceedings , they have not been allowed to leave the country .", "On DATE an article was published in a DATE newspaper on the events of DATE . The article was based on the results of the investigation and interviews with the applicants and the first applicant 's husband .", "On DATE the applicants filed an action for damages against the newspaper with ORG .", "On DATE ORG requested the applicants to complete their action , which they did on DATE . A further order to complete of CARDINAL DATE was complied with on DATE .", "On DATE and CARDINAL DATE the court held hearings . On DATE it ordered the first applicant to complete the pleadings .", "On DATE and DATE the court held hearings . On the latter date it dismissed the action .", "On DATE the applicants appealed .", "On DATE and DATE ORG held hearings . On DATE , it dismissed the appeal .", "On DATE the applicants filed a petition for review .", "On DATE ORG appointed a legal - aid lawyer for the applicants . The lawyer , being indisposed , refused the appointment on DATE . Another lawyer was appointed on DATE . This lawyer completed the petition on DATE . On DATE ORG dismissed the applicants ' petition for review .", "Section CARDINAL § CARDINAL a ) of Act no . CARDINAL of DATE on Travelling Abroad and on Passports ( “ the DATE LAW , as in force until DATE ) prohibited from travelling abroad anyone against whom criminal proceedings for a deliberate offence punishable by a sentence exceeding DATE imprisonment were being pursued , and for as long as those proceedings were pending .", "As of DATE , this legislation was replaced by section CARDINAL § CARDINAL a ) of Act no . CARDINAL of DATE on Travelling Abroad ( “ the DATE LAW ) . This provision , as in force until DATE , prohibited from travelling abroad anyone against whom criminal proceedings for an offence punishable by a sentence of or exceeding DATE imprisonment were being pursued , and until a final decision was taken in those proceedings .", "Under section CARDINAL § CARDINAL a ) of the same LAW , the passport authority shall refuse to issue a travel document to , or withdraw it from , a person , on whom a travel ban under LAW § CARDINAL has been imposed .", "Section CARDINAL § CARDINAL provides that the passport authority may – at the request of a citizen , on whom a travel ban under section CARDINAL § CARDINAL has been imposed DATE grant leave , on a ground worthy of special appreciation , to travel abroad for a definite period of time . Such leave is subject to approval by the public prosecutor or the trial judge .", "From DATE , the travel ban prescribed by LAW no . CARDINAL of DATE was annulled ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , the former GPE .", "In DATE , after CARDINAL unsuccessful requests for rectification of the defects in his apartment and compensation for deficiency in its size ( DATE and CARDINAL DATE ) , the applicant instituted civil proceedings against the construction company ( “ the company ” ) to restore or to pay for the damage caused . On DATE the court rejected his claim , finding that it had been withdrawn due to his failure to attend CARDINAL hearings . On DATE this decision became final .", "On DATE the applicant instituted civil proceedings for damages against the company claiming that his apartment was of inadequate quality and smaller than was specified in the contract .", "On DATE ORG GPE ( GPE суд ) dismissed the applicant ’s claim . It found that on DATE the applicant had entered into agreement with the company for construction of the apartment . On DATE the company had transferred the apartment into the applicant ’s possession . Minutes had been drawn up in which the defects had been noted and accepted by the applicant and the company .", "The court referred to the PERSON on obligations ( Зaкон за облигациони односи ) according to which in case of defects , the buyer / acquirer ’s rights expired DATE after notifying the vendor i.e. the CARDINAL responsible for the construction . It held that the applicant ’s claim for damages was time barred as it was lodged before the court DATE after he had first notified the company about the defects ( DATE ) . The court dismissed the applicant ’s argument that the absolute time bar of DATE for damage claims had not expired . It found it irrelevant that the claim was submitted within the absolute time bar as he failed to comply with the relative time bar of DATE which ran from the moment when he became aware of the damage and that the company was responsible . The court also dismissed the applicant ’s claim that the civil proceedings instituted in DATE suspended the time bar as his claim had been rejected as being withdrawn .", "The decision was served on the applicant on DATE .", "On DATE the applicant appealed this decision indicating the reasons in general terms . He stated :", "“ Being dissatisfied with the ORG decision ... I lodge this appeal in time on account of : substantive infringement of the civil procedure ; erroneous and incomplete establishment of the facts and wrong application of the substantive law . I will submit the explanation of the grounds with a subsequent submission . ”", "In a submission lodged on DATE , the applicant inter alia contested the court ’s findings that the agreement concluded with the company was of a commercial nature ( contract for construction ) and that consequently , the court had wrongly applied the national law concerning the time bar . He also referred to the minutes drawn on DATE in which the company acknowledged the defects and committed itself to remedying them by DATE , as allegedly newly discovered evidence that could influence the time bar . He argued that the lower court had wrongly interpreted the law in respect of the relevance to the time bar of the civil proceedings terminated in DATE .", "On DATE ORG dismissed the applicant ’s appeal . It inter alia found that :", "“ the plaintiff [ the applicant ] filed his appeal in time , but he submitted the reasons and the rationale of his appeal after expiration of the time limit of DATE ... as the appeal does not provide any reasoning , the court considered the judgment on the basis contained in the appeal and within its ex officio capacity to determine substantial infringements of the procedure and the correct application of the law ... ”", "It went further on to conclude that", "“ ... the first instance court had properly established that the claim was time barred as the term of DATE had expired ... ”", "It also held that the trial court had correctly applied the substantive law as the facts had been properly and fully established . It also , inter alia , repeated the parts of the lower court ’s decision concerning the agreement between the applicant and the company ; the time when the apartment was transferred into the applicant ’s possession and the dates when the applicant had notified the company about the shortcomings and asked for rectification or compensation .", "On DATE ORG informed the applicant that there were no statutory grounds for submitting a request for the protection of legality ( барање за заштита на законитоста ) before ORG .", "According to section CARDINAL of ORG ( ORG за парничната постапка ) , if a party concerned fails to attend a hearing or to take another action in the proceedings and consequently loses the right to do so , the court shall uphold that party ’s request to perform that action subsequently ( restoration to previous state of affairs ) if it finds a reasonable explanation for the failure .", "When the restoration in the previous state of affairs is granted , the proceedings are restored to the state before the failure had occurred and all other decisions in that respect are considered void .", "Section CARDINAL provides that , inter alia , parties can appeal the first instance decision within DATE from the date of service of the trial court decision , if not otherwise regulated by law .", "According to section CARDINAL , the trial court shall by decision summon the appellant to correct or supplement the appeal if on the basis of the information provided , it can not be determined which judgment is complained of or if the appeal was not signed . It the appellant does not comply with the court ’s instruction within the time - limit given , the latter shall reject the appeal as incomplete . In case of other deficiencies , the trial court shall transmit the appeal to ORG without summoning the appellant to correct or to complete it .", "Section CARDINAL § CARDINAL prescribes inter alia , the following substantial infringements of procedure : if the court was improperly composed or the judgment was adopted by a judge or a lay - judge who had not participated at the trial hearing ; if the judgment was adopted by a judge or a lay - judge who had to be removed by virtue of law , i.e. who was removed by a court decision ; if the court decided a case which fell outside its competence ratione materiae ; if the court wrongly ruled as to its competence ratione loci ; if contrary to the law , the court decided in absentia , on the basis of a confession or a denial ; if the party concerned was deprived of the opportunity to participate in the proceedings by unlawful conduct , in particular due to a lack of service ; if contrary to the law , the court rejected the party ’s request for an interpreter ; if the court decided without a public hearing which was compulsory ; if a person , lacking capacity to stand as a litigant , participated in the proceedings , or the legal entity acting as litigant was not represented by an authorised person , or if a legally incapable person was not represented by the statutory representative , or if the legal or statutory representative did not have the adequate authorisation ; if the court decided on a case in which another proceedings were pending , or if it was res judicata , or if a court settlement had been concluded ; if the public was excluded contrary to the law ; if the impugned decision contained deficiencies which made its review impossible , in particular if it was illegible , contradictory , lacked reasoning or did not provide reasons for the relevant findings of fact or if they were unclear or contradictory .", "Section CARDINAL prescribes that the substantive law is wrongly applied if the court did not apply the relevant statutory provision or if it failed to apply it properly .", "Section CARDINAL § CARDINAL provides that ORG assesses the trial court decision on the basis of the grounds set out in the appeal and having regard to its ex officio capacity to consider any substantial infringement of the civil procedure and the correct application of the law ." ]

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[ "The applicants , born in DATE , are NORP citizens resident in GPE or GPE . They are represented by ORG in GPE .", "The applicants , a mother , and CARDINAL adult siblings , NORP citizens , living in GPE , claimed to be the owners of CARDINAL separate plots of land , CARDINAL of which contained the family ’s second home , all of which were in the occupied area of the “ TRNC ” ( “ GPE ” ) .", "On DATE the applicants filed claims with ORG ( “ ORG ” ) claiming restitution of this property and damages for loss of use and non - pecuniary damage . On DATE , there was a directions hearing before the ORG , which required the production of further documents . A preliminary hearing took place on DATE at which the “ NORP ” representative made an offer of settlement . The ORG adjourned the case pending the applicants’ response to the offer of settlement . A number of preliminary hearings were listed and adjourned during DATE , during which the applicants claimed further attempts were made to obtain their agreement to a settlement . The applicants lodged a written request on CARDINAL August CARDINAL for a hearing of their claims .", "The ORG held hearings on the claims on DATE , DATE and CARDINAL DATE . On DATE , the ORG issued its decisions . Of the CARDINAL properties in issue , it found that the applicants were not the registered owners of CARDINAL properties , which were held by a registered company of which the applicants were shareholders still in existence . Of the other properties , restitution was ordered in respect of part of CARDINAL plot ( CARDINAL/CARDINAL ) ; as no particulars had been given of loss of use , no award was made for pecuniary loss and as the land had been uninhabited no award for non - pecuniary loss was made . Restitution was refused in respect of the other plots as the property was either occupied by a refugee family or by the military . The claims for non - pecuniary compensation and loss of use were rejected as these could not be made under the law where restitution was refused and where no claim had been lodged for exchange of land or for pecuniary compensation for the land .", "The applicants lodged appeals to ORG on DATE and DATE . The appeals were listed for hearing on DATE . By CARDINAL decisions dated DATE , the court upheld the decisions of the ORG , noting that the applicants had been represented by a lawyer at the hearing and that there had been interpretation into LANGUAGE at the hearing . It found that the ORG had not erred in its application of the law , citing the provisions concerned .", "The relevant law and practice are set out in GPE and Others v. GPE ( dec . ) [ ORG ] , ORG . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL , ORG , DATE , CARDINAL/CARDINAL and CARDINAL , ECHR DATE ." ]

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[ "The applicant was born in DATE and lives in Velenje .", "On DATE and CARDINAL DATE the applicant was injured while working for the NORP employer GVV in GPE . He consequently instituted CARDINAL sets of civil proceedings in ORG ( Okrožno sodišče v PERSON ) seeking damages for the injuries sustained . In both proceedings an insurance company ORG was acting as an intervening party .", "On DATE the applicant instituted civil proceedings against GVV seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained on DATE .", "DATE and DATE the applicant lodged CARDINAL written submissions and/or adduced evidence .", "DATE and DATE he made CARDINAL requests that a date be set for a hearing .", "Of the CARDINAL hearings held DATE and DATE , CARDINAL was adjourned due to the absence of both parties and CARDINAL was adjourned due to the absence 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 ) . GVV cross - appealed .", "On DATE the court dismissed both appeals .", "The judgment was served on the applicant on DATE .", "On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .", "On DATE the court dismissed the applicant ’s appeal .", "The judgment was served on the applicant on DATE .", "On DATE the applicant instituted civil proceedings against ORG seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained on DATE .", "DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .", "DATE and CARDINAL DATE he made CARDINAL requests that a date be set for a hearing .", "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 . The court also sought an additional opinion from the appointed 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 .", "On DATE the court allowed the applicant ’s appeal in part and increased 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 the court dismissed the applicant ’s appeal .", "The judgment was served on the applicant on DATE ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant brought civil proceedings claiming damages from the regional police department .", "The hearings scheduled at ORG ( “ the ORG ” ) for DATE and DATE did not take place as the judge was involved in different proceedings . The applicant also chose to amend his claims which required their communication to the respondent .", "The hearing of DATE was adjourned at the respondent ’s request to collect certain evidence .", "By judgment of DATE , ORG awarded the applicant MONEY ( RUR ) against the police department . The respondent appealed .", "On DATE ORG ( “ the ORG ” ) decided to postpone examination of the appeal pending the outcome of an inquiry initiated by ORG with ORG concerning compliance of certain legal provisions with LAW .", "Following the adoption of a judgment by ORG on DATE , on CARDINAL DATE ORG resumed the appeal proceedings .", "The appeal hearing of DATE did not take place due to the illness of the respondent ’s representative .", "On DATE ORG examined the appeal , set the judgment aside and ordered re - examination of the case .", "At the hearings of DATE and DATE the applicant amended his claims . Both hearings were adjourned to enable the respondent to study the amendments .", "The hearings of CARDINAL DATE and DATE did not take place due to the respondent ’s representative ’s involvement in different proceedings and the judge ’s illness , respectively .", "By judgment of CARDINAL DATE ORG awarded the applicant RUR CARDINAL,CARDINAL.CARDINAL in respect of unpaid disability allowance for the period from DATE . The police department was also ordered to pay ORG starting from DATE and to adjust that sum on a DATE basis in accordance with the statutory level of minimum wages and the cost of living in LOC .", "Neither of the parties challenged the judgment , which became final on DATE . The enforcement proceedings were opened .", "On DATE the police department asked ORG to fix a new time - limit for lodging an appeal against the judgment of DATE .", "On DATE ORG rejected their request . The police department appealed , and the applicant requested that the appeal hearing be postponed due to his illness . DATE ORG quashed the impugned decision and remitted the matter to the first instance .", "On DATE ORG granted the request for a new time - limit . The applicant appealed and asked to postpone the appeal hearing due to his counsel ’s unavailability . On DATE ORG upheld the decision .", "By an interim decision of CARDINAL DATE , ORG stayed enforcement of the judgment of DATE . After lodging an appeal , the applicant again asked to postpone the appeal hearing due to his counsel ’s unavailability .", "On DATE ORG set aside the judgment of CARDINAL DATE and the decision to stay the enforcement proceedings . A new hearing was required .", "On DATE the applicant amended his claims .", "The hearing of DATE did not take place due to the judge ’s illness .", "In the meantime the applicant lodged an application for supervisory review of the appeal decision of DATE . On DATE the supervisory instance called up his case and dismissed his application on DATE .", "At the hearings of DATE and CARDINAL DATE the applicant again modified his claims . The respondent requested that the latter hearing be adjourned to verify some evidence . The next hearing of DATE had also to be adjourned due to another amendment of his claims by the applicant .", "The respondent ’s representative did not appear at the hearings scheduled for CARDINAL and DATE due to his involvement in different proceedings .", "On DATE the applicant again changed his claims , following which the hearing was adjourned to collect certain evidence .", "On DATE the applicant amended his claims .", "The hearings of DATE and DATE did not take place as the judge was first ill and then involved in different proceedings .", "On DATE and DATE the court granted the parties’ motions for obtaining of certain evidence and sent relevant inquiries .", "At the next hearing that took place on DATE the applicant again modified his claims .", "On DATE ORG awarded the applicant a lump sum of ORG and ordered the police department to pay him ORG CARDINAL,CARDINAL.CARDINAL per month starting from DATE . The judgment was upheld on appeal by ORG on DATE and enforced on CARDINAL DATE ." ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . He was represented before the ORG by ORG , a lawyer practising in GPE . ORG of GPE ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant ’s daughter , PERSON , who was then DATE , died as a result of injuries which she sustained while climbing the PERSON veža peak in the High PERSON . The peak ’s summit is at QUANTITY above sea level .", "PERSON and her partner started the climb in excellent weather conditions at TIME on DATE . Both climbers were sufficiently experienced for the climb .", "At TIME PERSON fell when a block of rock came loose . She remained hanging on the rope with her head pointing downwards QUANTITY below her co - climber . QUANTITY below her CARDINAL other climbers , Mr. and Mrs. PERSON , were preparing to start the same climb and witnessed the accident .", "At TIME and at TIME attempted to contact ORG and ORG using a mobile phone . Both lines were busy . After another attempt she reached ORG at TIME She was told that a helicopter would be sent immediately and that it would arrive at the place of the accident in TIME .", "The accident had also been reported to the operations centre of ORG in GPE by a tourist passing near the foot of the mountain . The records indicate that the operations centre received the first emergency call about the accident at TIME", "CARDINAL and TIME the co - climber fixed the ropes with a view to preventing PERSON from any further falls and descended by rope to the latter . PERSON was badly injured , but she remained conscious and communicated with her partner until TIME At TIME Mr. and Mrs. PERSON decided to climb up to PERSON and her partner .", "At TIME the duty officer of ORG informed Mr J. by phone that the helicopter would arrive in TIME as it was on a different rescue mission in GPE at that time .", "At TIME the doctor of ORG called Mr J. to tell him that the rescue team was on its way .", "The CARDINAL climbers supported PERSON , hydrated her and communicated with her .", "At TIME the rescue service helicopter landed in GPE to fill the fuel tank and to prepare the equipment needed for the rescue of PERSON . At TIME the helicopter took off from GPE . On its flight to the mountain it landed in LOC at TIME , to board CARDINAL member of ORG . It reached the place of the accident at TIME", "At TIME the pilot informed the land operator that strong turbulence was preventing PERSON from being rescued directly from the helicopter in flight . A reinforcement of the rescue team and special equipment were required in order to reach the injured person .", "The helicopter returned to ORG . CARDINAL a member of ORG with the necessary equipment joined the rescue team and the fuel tank was refilled .", "At TIME another CARDINAL members of ORG boarded the helicopter in LOC .", "At TIME the rescue team was dropped on the summit of the mountain . The helicopter flew off to attend to another accident . TIME the CARDINAL climbers who had stayed with the injured person spotted the members of the rescue team QUANTITY above them .", "The Government submitted that the team reached PERSON at CARDINAL p.m.", "According to the climbers involved , the rescue team reached the injured at TIME", "By that time PERSON had lost consciousness .", "The Government submitted that PERSON had by that time already reached the stage of clinical death .", "The members of the rescue team and the climbers fixed PERSON to a transport stretcher . She died at TIME", "Her body was lowered to the foot of the mountain by ropes at TIME", "A forensic doctor concluded , on DATE , that her death had been caused by the shock resulting from the injuries and by bleeding , and by a third degree embolism . The report indicated that PERSON had dislocated her right thigh bone , that the soft tissues of her right arm and thigh had been massively contused and that she had suffered from an intracranial haemorrhage .", "The applicant requested ORG ( Úrad pre dohľad nad zdravotnou starostlivosťou ) to examine whether appropriate medical assistance had been provided to his daughter .", "On DATE the ORG branch office of that institution replied to the applicant that no shortcomings had been established in the providing of medical assistance to PERSON .", "The letter stated that the helicopter team had been trained and equipped in accordance with the relevant law . The doctor , who had entered the climbing area of the mountain despite the fact that he had not been obliged to do so , found that PERSON had died before she was released from the rope and put on a transport stretcher . Resuscitation had not been possible in the situation . The question as to whether the life of the injured person could have been saved had there been an earlier intervention was purely hypothetical .", "The letter further stated that nothing indicated that the actions of ORG and ORG had not been duly coordinated . According to ORG , it had been more efficient to have recourse to ORG in the case of the applicant ’s daughter . In a letter of DATE the Minister of the ORG informed ORG that he had discovered no shortcomings in the action of ORG which fell under the authority of his Ministry .", "On DATE the sister of PERSON challenged the conclusions of the LOC branch office .", "On DATE , in its protocol , an expert commission under the authority of the President of ORG found an infringement of the relevant health care legislation by ORG .", "The commission held that the operator of ORG had proceeded erroneously when sending a helicopter based in GPE to intervene at the very extreme point of its operation area in GPE while a different helicopter based in GPE had been available for the same territory .", "The commission qualified the operator ’s misjudgment as a “ human factor ” failure . It had resulted in a delay of TIME during which the helicopter based in GPE had not been available for operations in the High Tatras .", "On DATE ORG informed ORG of the commission ’s findings . ORG was requested to bring administrative proceedings against ORG and to impose a fine for the latter ’s failure to comply with its duties .", "ORG discontinued the proceedings , on DATE , holding that ORG had not contravened any of the duties imposed by law .", "DATE ORG examined the way in which the operators of ORG had organised the rescue of the applicant ’s daughter .", "The report indicates that the operators had correctly decided to organise the rescue in co - ordination with ORG . To that effect they had contacted the latter at TIME , immediately after the incident had been reported .", "In particular , access to the place of the incident had been difficult . The rescue team would have needed TIME to reach it on foot . In addition , the operators had correctly presumed that the assistance of ORG was required with a view to ensuring the rapid transportation of the injured person to hospital . The members of ORG had been prepared to intervene in co - operation with ORG within TIME after the receipt of the information about the incident .", "ORG found no shortcomings in the way in which ORG had acted .", "On DATE criminal proceedings were brought within ORG in the context of the accident as a result of which the applicant ’s daughter had died . The investigator questioned CARDINAL witnesses . He considered a forensic report and questioned a forensic expert . Records of communications and reports on the rescue action were submitted by ORG and ORG . The investigator also considered other documentary evidence including reports of ORG and ORG .", "On the basis of the evidence obtained the police investigator concluded , on DATE , that the death of the applicant ’s daughter was the result of the injuries which she had suffered during the climb . Criminal liability of a third person in that context was not established . The criminal proceedings were therefore discontinued .", "The applicant filed a complaint . He argued , inter alia , that the investigator had disregarded the above protocol of the expert commission of ORG .", "On DATE a prosecutor of ORG in GPE , after having obtained additional documentary evidence , dismissed the applicant ’s complaint . The decision stated that the rescue helicopter had been intervening at a different place within its operation area at the time when the emergency call about the incident of the applicant ’s daughter had reached the operations centre . It had started attending to the incident in the High PERSON immediately after it had ended the previous rescue action . The expert commission ’s conclusion that a different helicopter could have been used for the intervention in GPE did not provide a sufficient basis for prosecuting any person for injury to health . The prosecutor found no shortcomings in the way in which the rescue action had been carried out . Reference was made to a report indicating that the doctor had attended to the victim directly in the exposed climbing area despite the fact that he had not been obliged to do so and that the scope of the climber ’s injuries were such that only immediate intervention at a specialised health care centre could have saved her life .", "On DATE a prosecutor of ORG in Prešov upheld the above conclusion that no criminal offence had been committed . The letter admitted , however , that the rescue of the applicant ’s daughter had not been organised in an optimal manner . In particular , the decision to send the helicopter based in GPE to a remote place , albeit within its operation area , had not been correct . It was also questionable whether the helicopter should not have deposited the rescue climbers on the summit of the mountain immediately instead of attempting to rescue the injured person directly from the air . With reference to the statement of a forensic expert the prosecutor held that those considerations could not affect the position in the case . In particular , the saving of the life of the injured person would only have been possible in the case of immediate medical intervention which had not been possible for objective reasons .", "On DATE ORG , with reference to the above conclusions , dismissed the applicant ’s claim that appropriate medical assistance had not been provided to his daughter in a timely manner . The letter stated that there was no justification for the criminal proceedings to be resumed .", "At the request of the sister of PERSON , ORG of ORG carried out an analysis of the accident and of the subsequent events .", "The report dated DATE states , inter alia , that the decision of the CARDINAL climbers present not to attempt to lower PERSON to the foot of the mountain by ropes had been correct given that they had been informed that a professional rescue team would arrive shortly . However , that information had turned out to be false . The speediness of the rescue in such cases was of primordial importance . Timely medical intervention could probably have saved the life of the injured climber . There were obvious mistakes as regards the professional rescue system . The most important one seemed to be the late arrival of the helicopter for which no satisfactory explanation existed at the time when the report was drafted .", "The report further contains recommendations on action to be taken by mountaineers in cases of similar accidents .", "In DATE ORG adopted a Manifesto for Emergency Medicine in LOC . It provides , inter alia , that emergency medical care of a high standard should be available to every person in need in all situations and at all times . This requires a dedicated system which provides appropriate care for all acutely ill or injured persons .", "In a speech given at ORG held in GPE in DATE , Professor Dr. PERSON , President of ORG , stated , inter alia , that one of the essential elements of the rescue chain was the statutory definition of delays in first - aid intervention while taking into account the territorial and geographical situation of the country concerned . While it was not realistic to require that an emergency team should reach a person whose life was in danger within TIME in all NORP states , that period should be set as a standard in densely populated and highly developed countries .", "The applicant submits that , as from the moment when an accident is reported , a physician attached to an emergency service is required to start life - saving intervention within TIME in various ORG in GPE , within TIME in GPE and within TIME in GPE .", "Pursuant to LAW , everyone has the right to life .", "Article CARDINAL guarantees to everyone the right to protection of health .", "Article CARDINAL enacted with effect from DATE provides :", "“ 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 . ” ...", "In accordance with its established practice , the Constitutional Court lacks jurisdiction to examine a complaint lodged by natural or legal persons when the determination of the point in issue involves the preliminary question of conflict of legal rules ( see , for example , I. ÚS CARDINAL/CARDINAL , decision of CARDINAL DATE ; II . ÚS CARDINAL/CARDINAL , decision of DATE ; NORP . ÚS CARDINAL/CARDINAL , decision of DATE ; or PERSON . ÚS CARDINAL , decision of CARDINAL DATE ) .", "Act CARDINAL/CARDINAL governs health care and health services .", "Pursuant to section DATE ) , health care is provided correctly where , without delay , medical intervention occurs which is necessary for the correct identification of a disease and for ensuring timely and efficient treatment with a view to healing or improving the state of a person with due regard to the current state of medical science .", "Act CARDINAL/CARDINAL Coll . governs , inter alia , persons providing health services .", "Under section CARDINAL(CARDINAL ) , ORG gives permission for the operation of an aerial ambulance as an emergency health service .", "ORG ) obliges persons providing health services to give to any person indispensable medical assistance without any unjustified delay .", "Act CARDINAL/CARDINAL Coll . governs the emergency health service , that is urgent assistance to persons whose life or health is at immediate threat ( section CARDINAL ) .", "The emergency health service comprises operation centres and providers of emergency health services . The latter run emergency ambulances on the basis of an authorisation issued by ORG and form part of the integrated rescue system of GPE ( section CARDINAL ) .", "Operation centres are established by ORG , and they direct and co - ordinate the emergency service in a manner which makes it possible to maintain its fluid and permanent character . They are entitled to order the provider of a health service to intervene ( section CARDINAL ) .", "Persons providing health services in an emergency are obliged , inter alia , to establish a response centre in the district concerned so that an ambulance can leave within TIME from the receipt of an order by the operations centre or co - ordination centre involved . The time - limit within which an aerial ambulance is to leave for an emergency intervention is to be laid down in a special regulation ( section CARDINAL ) . According to the information available , no regulation governing the aforementioned point has been issued .", "A person authorised to provide medical assistance in the case of an emergency can be fined by ORG in the case of failure to meet one of the obligations under LAW ( section CARDINAL ) .", "At the relevant time the details concerning the emergency medical service were set out in the Regulation of ORG no . CARDINAL/CARDINAL , as amended .", "The Regulation specified the requirements as regards the equipment and staffing of operation centres , emergency medical stations and ambulances of the emergency medical service including the aerial ones .", "Annex CARDINAL to the Regulation provided that CARDINAL stations of aerial emergency medical service were to be established , namely in GPE , Banská GPE , PERSON , PERSON , GPE and PERSON .", "Act CARDINAL/CARDINAL governs ORG . It is established under the authority of ORG from the budget of which it is financed ( section CARDINAL ) .", "Pursuant to section CARDINAL(CARDINAL)(a ) , ORG organises and carries out the rescue of persons , in particular in co - ordination with ORG . It forms a part of and carries out duties within the integrated rescue system in GPE ( section CARDINAL(CARDINAL)(a ) ) .", "Under LAW an ORG is established which , among other things , is charged with the supervision , in the context of public administration , of the provision of health care ( “ ORG ” ) . It carries out its duties impartially and independently of public authorities or other persons ( section CARDINAL(CARDINAL ) ) .", "Under section CARDINAL(CARDINAL)(b ) , ORG controls whether health care is provided correctly as required by section CARDINAL(CARDINAL ) of Act CARDINAL/CARDINAL .", "Where the ORG has established shortcomings in the provision of health care , it can initiate the imposition of sanctions on the provider by the respective public authority .", "Under LAW , natural persons have the right to protection of their personal rights ( personal integrity ) , in particular their life and health , civil and human dignity , privacy , name and personal characteristics .", "Under LAW , natural persons have the right to request that unjustified infringements of their personal rights be ended and that the consequences of such infringements be eliminated . They also have the right to appropriate just satisfaction .", "LAW provides that , in cases where the satisfaction obtained under LAW is insufficient , in particular because the injured party ’s dignity or social standing has been significantly diminished , the injured party is also entitled to financial compensation for non - pecuniary damage .", "Pursuant to Article CARDINAL , after the death of the injured party the right to the protection of his or her personal integrity passes to his or her spouse and children or , in the case of there being none , to his or her parents .", "In an action in ORG ( file no . CARDINALC CARDINAL/CARDINAL ) a mother claimed , among other things , financial compensation for non - pecuniary damage in connection with the death of her daughter . She relied on the previous conviction for manslaughter of a car driver who had run over her daughter .", "In a judgment of CARDINAL DATE ORG accepted that the plaintiff had suffered damage of a non - pecuniary nature and awarded her CARDINAL NORP korunas ( SKK ) by way of compensation .", "In an action in the Žiar nad Hronom District Court ( file no . CARDINAL C CARDINAL/CARDINAL ) a mother claimed , among other things , financial compensation for non - pecuniary damage caused to her and her son in connection with the latter ’s violent death . She relied on the defendant ’s previous conviction for the extremely violent and racist murder of her son .", "ORG concluded that the plaintiff and her son had suffered non - pecuniary damage and in a judgment of DATE it awarded the plaintiff SKK CARDINAL in respect of the non - pecuniary damage which she had suffered and SKK CARDINAL in respect of the non - pecuniary damage caused to her son . On DATE ORG in Banská GPE upheld the first - instance judgment .", "In the ORG proceedings file no . CARDINALC CARDINAL/CARDINAL the plaintiff claimed compensation for non - pecuniary damage sustained as a result of the fact that her mother had died during childbirth due to the incorrect actions of the physician on duty .", "On DATE ORG partially granted the claim . It relied on expert opinions concluding that the plaintiff ’s mother had not received appropriate health care as required by the law . It ordered the defendant medical institution to pay SKK CARDINAL,CARDINAL to the plaintiff in compensation for non - pecuniary damage . The judgment became final on DATE .", "Act PERSON . governs liability for damage caused in the context of the exercise of public authority .", "Section CARDINAL provides that the LAW extends to decision - making and official actions of public authorities related to the rights and interests protected by law and the obligations of natural or legal persons . Public authorities for the purpose of the LAW comprise ORG organs , local self - administration bodies , public - law institutions and also natural or legal persons whom the law has entrusted with the exercise of public authority .", "Under section CARDINAL(CARDINAL ) , ORG liability under LAW comprises , inter alia , incorrect official action .", "Section CARDINAL(CARDINAL ) qualifies as an incorrect official action , inter alia , a public authority ’s failure to take an action within the time - limit set , inactivity of a public authority or any other unlawful interference with rights and interests of natural or legal persons protected by law .", "Pursuant to paragraph CARDINAL of section CARDINAL , any person who has suffered damage as a result of incorrect official action is entitled to compensation .", "Section CARDINAL provides for ( i ) compensation for pecuniary damage including loss of profit and , ( ii ) where the finding of a violation of a right does not constitute sufficient satisfaction , also compensation for damage of a nonpecuniary nature ." ]

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[ "The applicant , born in DATE , is a NORP national . He is a businessman by profession . When lodging his application , he was detained in a prison in GPE .", "A.", "I. The criminal proceedings against the applicant", "On DATE the applicant was arrested on suspicion of having committed burglary .", "On DATE ORG ( Amtsgericht ) , having heard witnesses and taken expert evidence , convicted the applicant of several counts of burglary and sentenced him to DATE and DATE imprisonment . In these and the ensuing proceedings defence counsel assisted the applicant .", "On DATE ORG ( Landgericht ) , following an oral hearing and having again taken evidence , dismissed his appeal .", "On DATE ORG ( Oberlandesgericht ) dismissed the applicant 's appeal on points of law .", "II . The control of the applicant ’s correspondence", "On DATE , in the course of his detention qualifying as detention on remand under NORP law , the applicant complained with the Presiding Judge of ORG about the opening of his letters addressed , inter alia , to ORG .", "By letter of DATE , the Presiding Judge informed the applicant that the control of a remand prisoner 's correspondence was not subject to any limitation . He stated that LAW ( Strafvollzugsordnung ) did not apply to remand prisoners . In his view , LAW ( Untersuchungs - haftvollzugsordnung ) did not prevent him from reading such correspondence .", "On DATE ORG dismissed the applicant 's objections , considering that pursuant to ORG , only letters addressed to , inter alia , the Commission were exempted from control . This exemption did not apply to correspondence addressed to a remand prisoner .", "On DATE ORG dismissed the applicant 's appeal as having lost its purpose ( gegenstandlos ) . ORG noted that the applicant was no longer detained on remand , as his conviction had meanwhile become final .", "", "III . The proceedings with ORG", "On DATE the applicant lodged a constitutional complaint ( ORG ) with ORG ( Bundes - verfassungsgericht ) , which he later amended . In his submissions , he complained generally about the unlawfulness of numerous decisions , which he joined . These documents did not include the NORP court decisions regarding his above conviction nor the control of his correspondence as remand prisoner .", "On DATE ORG refused to entertain his constitutional complaint . ORG considered that , although having been repeatedly informed about the conditions of lodging a constitutional complaint , the applicant had merely submitted numerous documents and - without having stated any reasons of unconstitutionality - generally requested ORG for an investigation .", "B. Relevant domestic law", "Pursuant to LAW ) , the ORG shall rule , inter alia , on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed CARDINAL of his or her fundamental rights or CARDINAL of his or her rights as guaranteed under LAW , DATE , DATE , CARDINAL , CARDINAL and ORG of LAW .", "The composition and functioning of ORG are governed by ORG ( PERSON über das Bundesverfassungsgericht ) , as amended in DATE .", "Sections CARDINAL of that Act concern constitutional complaints lodged by individuals .", "According to section CARDINAL ( CARDINAL ) , any person who claims that CARDINAL of his basic rights or CARDINAL of his rights under LAW , Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL and ORG of LAW has been violated by public authority may lodge a complaint of unconstitutionality with ORG . These rights include rights regarding the fairness of proceedings and the rule of law , and the right to respect for correspondence ." ]

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[ "The applicant was born in DATE and lives in ORG .", "The applicant worked in the PERSON company ( “ the company ” ) until DATE , when she was dismissed from her job , together with CARDINAL other employees , owing to a decrease in the company ’s activity . Her post was abolished , the company being unable to offer her another job .", "NORP In DATE the employees and managers of the company created the ORG association ( “ the association ” ) , with the aim of acquiring shares in the company , which was being privatised . The applicant was elected to the board of directors with a DATE mandate . In DATE the association ’s general assembly elected a new board of directors , to which the applicant was not elected .", "On DATE the applicant lodged an action seeking to have a decision of CARDINAL DATE of the association ’s general assembly overturned . She alleged that the meeting of the general assembly which modified the statute and leadership of the association had not been legally convened .", "On DATE ORG ( “ the ORG ” ) allowed the action .", "On DATE ORG ( “ the Court of Appeal ” ) allowed an appeal by the association , quashed the previous judgment and sent the case back for a fresh examination . It found that while the applicant had lodged the action against the association , the procedural acts had been performed in respect of the company .", "This decision was confirmed on DATE by ORG , which considered null and void a further appeal by the applicant because she had submitted her reasons out of time .", "During the retrial on DATE ORG held that , in accordance with Government Ordinance no . CARDINAL of DATE regarding associations and foundations , it had no jurisdiction ratione materie to examine the case , which came within the competence of ORG ( “ ORG ” ) .", "NORP The proceedings were stayed DATE and DATE at the applicant ’s request , as she had lodged an appeal against the refusal to exercise jurisdiction .", "On DATE ORG , by a final decision , dismissed as groundless the appeal against the judgment of DATE . On DATE the court further dismissed , by an interlocutory decision , a request by the applicant to rectify factual errors .", "On DATE the applicant lodged a further appeal against the interlocutory decision and , considering that it could influence the trial , on DATE she requested adjournment of the main proceedings . On DATE the High Court of Cassation and ORG declared the applicant ’s appeal against the interlocutory decision inadmissible .", "On DATE ORG Instance dismissed the applicant ’s action as groundless .", "On DATE ORG confirmed that judgment by a final decision .", "On DATE the applicant challenged the dismissal decision , seeking reinstatement and payment .", "On DATE ORG Instance dismissed the action , considering the dismissal decision lawful and well - founded .", "The applicant appealed . Of CARDINAL hearings held DATE and DATE were adjourned at the applicant ’s request . This includes a stay of proceedings for non - appearance of both parties before the court DATE and DATE , when the applicant requested the reopening of the proceedings .", "The proceedings were also stayed DATE and CARDINAL DATE , when the applicant requested their adjournment pending investigations brought about by her criminal complaints against certain employees of the company .", "On DATE ORG dismissed her appeal . On DATE the court , by an interlocutory decision , dismissed a request by the applicant to rectify factual errors in the judgment . On DATE it also dismissed , by a final decision , a further appeal by the applicant against the interlocutory decision .", "The applicant lodged an appeal on points of law . After the changes introduced in LAW by Law no . CARDINAL , the file was sent to ORG .", "On DATE ORG , after raising on its own motion a plea of incompatibility ratione materiae , allowed the appeal on points of law and referred the case back to ORG , considering that the dispute was CARDINAL of labour law and therefore it was in the latter ’s jurisdiction to hear the case as a first - instance court .", "During the trial by ORG , of the CARDINAL hearings held DATE and CARDINAL DATE CARDINAL were adjourned at the applicant ’s request . This includes a stay of proceedings between CARDINAL DATE and DATE , as the applicant raised a plea of unconstitutionality in respect of a legal provision establishing a transitional application of certain rules regarding the courts’ competence . ORG eventually dismissed the request on DATE and on CARDINAL DATE returned the file to ORG .", "On DATE ORG , by interlocutory decisions , granted CARDINAL requests by judges to abstain from taking part in the proceedings and refused another such request . On CARDINAL and DATE and CARDINAL DATE the court dismissed , by interlocutory decisions , requests by the applicant to challenge either individual judges or the whole section .", "The proceedings were also stayed DATE and CARDINAL DATE at the applicant ’s request , following her demand that the judgment of DATE be set aside .", "On DATE ORG rejected as groundless the applicant ’s request for the final decision of DATE to be set aside and on QUANTITY DATE ORG and ORG declared a further appeal by the applicant inadmissible .", "On DATE ORG dismissed the applicant ’s action , considering the dismissal decision lawful and well - founded .", "The applicant appealed alleging , inter alia , that in her capacity as the chairman of the company ’s trade union she was under the protection of Law no . CARDINAL/CARDINAL which prohibited dismissal from their jobs within DATE of the end of their mandate of those involved in the leadership of a trade union .", "On DATE ORG confirmed the solution by a final decision . It held that the applicant ’s activity as chairman of the trade union had ceased on DATE .", "On DATE the court dismissed as groundless the applicant ’s request for the final decision to be set aside . On DATE ORG and ORG , by a final decision , declared a further appeal by the applicant inadmissible .", "On DATE the applicant brought proceedings to recover salary between DATE and DATE in the amount of CARDINAL old NORP lei ( ROL ) .", "On DATE ORG Instance dismissed the action as groundless , considering that the applicant ’s salary had been adapted to her qualification and that the amounts stopped out of her wages had been justified either by disciplinary sanctions , unchallenged before the courts , for systematic failure to fulfil her duties , or by the fact that she had ceased to be the leader of the trade union on DATE . The court ordered the applicant to pay the company ORG for the cost of proceedings .", "On DATE ORG upheld in part an appeal by the applicant and , on the basis of an accounting expert report , ordered the company to pay the amount of ROL CARDINAL,CARDINAL,CARDINAL , noting that the rest of money to which the applicant was entitled had already been returned to her . The court also ordered the company to pay the applicant ORG for the cost of the proceedings at first instance and on appeal .", "That judgment became final on DATE .", "The applications for review of the judgment of DATE and of the final decision of CARDINAL DATE lodged by the applicant were rejected as groundless and her further appeals were either dismissed as groundless or declared inadmissible .", "On DATE the applicant requested enforcement of the judgment of DATE . ORG declared that the judgment had become enforceable and that it could be enforced .", "On DATE , at the company ’s request , ORG , by an interlocutory decision , declared that the judgment of DATE became enforceable . The court then found that in spite of the fact that that judgment had been declared enforceable , it could not be enforced because it had been varied by a hierarchically superior court .", "The applicant contested the interlocutory decision of CARDINAL DATE . On DATE ORG allowed the action , varied the interlocutory decision and rejected the company ’s request to declare the judgment of DATE enforceable , as the latter had been changed by a subsequent appeal .", "On DATE the bailiff informed the applicant that the enforcement of the judgment of DATE in respect of due salaries by the company had been effected by offsetting the salaries that the company should had paid her with the amounts due by the applicant to the company for costs in domestic proceedings subsequent to that judgment ORG ( paragraph CARDINAL above ) .", "On DATE the High Court of Cassation and Justice , by a final decision , dismissed a complaint by the applicant against the prosecutor ’s refusal to commit for trial CARDINAL judges and a clerk from ORG as groundless .", "On DATE ORG and Justice , by a final decision , dismissed a complaint by the applicant against the prosecutor ’s refusal to commit for trial CARDINAL judges from ORG , a judge from ORG and a bailiff as groundless ." ]

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[ "6" ]

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[ "The applicant was born in DATE and lives in LOC .", "On DATE the applicant instituted proceedings before ORG seeking compensation for damages sustained in an accident at the workplace .", "On DATE the parties were directed to solve the dispute through mediation . The mediation was unsuccessful and an order to return the file to the first - instance court was issued on DATE .", "On DATE the court held the first hearing .", "DATE and DATE CARDINAL hearings were held and an expert appointed . At the last hearing the court delivered an interim judgment , reserving the decision on the amount of compensation to the final judgment . Both parties appealed .", "On DATE ORG upheld both appeals and remitted the case for re - examination .", "On DATE the first - instance court held a hearing .", "NORP On DATE the first - instance court issued a decision on termination of proceedings , following an out - of court settlement reached between the parties .", "For relevant domestic law see PERSON v. GPE ( ( dec . ) no . CARDINAL , DATE ) ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant is an NORP national , born in GPE ( ORG ) and living in PERSON . He is a lawyer by profession . The respondent Government are represented by their Agent , Mr PERSON , and by their co - Agent , Mr PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "By judgment no . CARDINAL of DATE , ORG ruled that the ORG should , in respect of entitlement to a pension of any nature , guarantee the statutory minimum amount .", "Since that judgment was not immediately enforced through legislative measures , in DATE the applicant took proceedings against ORG ) in the NORP magistrates ' courts on behalf of numerous pensioners . In those proceedings , the applicant requested that his fees , costs and expenses be awarded directly to him ( distrazione delle spese , LAW ) .", "At first instance , in DATE , the magistrates ' courts found in the plaintiff 's favour and awarded the fees , costs and expenses directly to the applicant .", "By judgments ORG . CARDINAL of DATE and CARDINAL of DATE , ORG held that the ORG should reimburse part of the taxes unjustifiably paid by certain categories of pensioners on their old - age pensions .", "At second instance , in DATE , the appellate court upheld the magistrates ' courts ' judgments and awarded fees and legal costs directly to the applicant .", "In DATE , the ORG appealed against those judgments to ORG .", "On DATE the President of the Republic passed a legislative decree ( “ decreto legge ” ) ( no . CARDINAL ) enforcing the judgments of ORG . It provided that the ORG would reimburse the amounts by distribution of ORG bonds to the pensioners over DATE . LAW no . CARDINAL extinguished all pending proceedings concerning the reimbursement in question and provided that each party would bear its own legal costs and that the judicial decisions which , on DATE of entry into force of LAW no . CARDINAL , had not yet become final would produce no legal effects .", "Legislative Decree no . CARDINAL/CARDINAL was never converted into a law , but its effects were maintained by section CARDINAL(CARDINAL ) of PERSON no . CARDINAL of DATE and section CARDINAL of Law no . CARDINAL of DATE , which reiterated , inter alia , that the judicial decisions which , on DATE of entry into force of LAW no . CARDINAL , had not yet become final would produce no legal effects .", "In respect of the above proceedings that the applicant had instituted on behalf of numerous pensioners and which were pending before ORG , the latter by numerous judgments given in DATE and DATE declared the proceedings extinguished and the legal costs divided between the applicant and the ORG , in accordance with the above - mentioned laws .", "Some judges in DATE and DATE applied to ORG for review of the above - mentioned sections of LAW . PERSON and GPE . By judgment no . CARDINAL of DATE , ORG declared the said laws compatible with LAW .", "On DATE the applicant was served with an injunction granted to the ORG by the ORG magistrate court ordering him to pay the sum of MONEY [ MONEY ] . This sum had been paid to the applicant as a consequence of the first instance decisions of the magistrates ' courts ' ( see above ) .", "On DATE the applicant appealed against the order and instituted proceedings before the ORG magistrate 's court against the ORG . By a judgment issued on DATE and filed with the registry on DATE the magistrate 's court rejected the applicant 's claim because the proceedings had been extinguished and the legal costs divided in accordance with the above - mentioned laws and because the first instance decisions of the magistrates ' courts ' had not become final .", "It is not clear whether the applicant appealed against this judgment .", "Under LAW , the unsuccessful party in the proceedings bears all legal costs , including the lawyer 's fees , costs and expenses incurred by the other party or parties .", "Under LAW , the judge can divide the legal costs between the parties when neither is entirely successful or when there are other equitable grounds ( “ altri giusti motivi ” ) therefore .", "Under LAW , a lawyer whose client is of limited means can declare that he has advanced the costs and expenses of the proceedings on behalf of his client and has not been paid his fees ( onorari ) , and can accordingly request that , if his client is successful and is thus entitled to be awarded legal costs under LAW , the court should award the costs directly to the lawyer ( distrazione delle spese ) . Article CARDINAL thus grants a special protection to the lawyer , who enters into a direct relationship with the opposing party . He can subsequently act autonomously against the losing party in order to recover his fees , costs and expenses . The lawyer remains entitled to claim his fees from his client , however .", "Under Legislative Decree no . CARDINAL/CARDINAL all pending proceedings concerning the reimbursement of taxes unjustifiably paid by pensioners were extinguished and the legal costs were divided between the parties .", "Under LAW ( CARDINAL ) of LAW , a legislative decree is LAW which ceases to be valid if not converted into a law .", "Legislative Decree no . CARDINAL/CARDINAL was not converted into a law . However , its effects were maintained by section CARDINAL(CARDINAL ) of PERSON no . CARDINAL of DATE and section CARDINAL of Law no . CARDINAL of DATE . Law no . CARDINAL of DATE entered into force on DATE .", "Under LAW no . CARDINAL of CARDINAL DATE “ The question of the constitutionality of a law or equivalent act of the Republic which has been raised either by the judge or by any of the parties to the proceedings and has not been considered manifestly ill - founded by the judge shall be referred to ORG for decision . ”" ]

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[ "The applicant is a limited liability company incorporated under NORP law with its head office in GPE .", "NORP In DATE ORG ( the predecessor of the applicant company ) maintained its accounts by single - entry book - keeping in accordance with section CARDINAL of LAW ( No . DATE ) ( zákon o soukromém podnikání občanů ) ( \" the Private Business Activities Act \" ) and ORG ( zásady vedení účetnictví při soukromém podnikání občanů ) ( \" the Rules \" ) published in ORG Financial Bulletin No . CARDINAL on DATE .", "On DATE ORG was registered in ORG ( podnikový rejstřík ) pursuant to section CARDINAL(CARDINAL ) of the Private Business Activities Act .", "On DATE ORG passed to double - entry book - keeping . On DATE it ceased to exist , and the applicant company , ORG , ORG . ( společnost s ručením omezeným ) was incorporated .", "On DATE ORG ( finanční úřad ) notified the applicant company that it was required to pay additional income tax of CZK MONEY , including a penalty of CZK CARDINAL , for the DATE tax year because ORG had not increased the income tax base for the DATE tax year by including certain assets amounting to CZK CARDINAL,CARDINAL even though , pursuant to section CARDINAL ) of the Regulations on the procedure for passing from single to double - entry book - keeping ( postup přechodu z jednoduchého na podvojné účetnictví ) ( \" the Regulations \" ) of CARDINAL DATE , published in Financial Bulletin No . CARDINAL on CARDINAL DATE , it had been required to do so . ORG held that ORG had violated both section CARDINAL of the Private Business Activities Act and the Regulations .", "On DATE ORG ( finanční ředitelství ) dismissed the applicant company 's appeal . It stated that ORG had correctly decided the case in accordance with the Rules published in Financial Bulletin No . CARDINAL and the Regulations published in Financial Bulletin No . CARDINAL . It also stated that LAW were issued in order to clarify obligations arising from section CARDINAL of the Private Business Activities Act .", "On DATE the applicant company appealed to ORG ( mĕstský soud ) . It submitted that in DATE ORG had maintained single - entry book - keeping in accordance with section CARDINAL of the Private Business Activities Act and section CARDINAL ) of the Rules issued by ORG on DATE under number V/CARDINAL - CARDINAL/CARDINAL . It claimed that the Rules provided for single - entry book - keeping by businesses which were not registered in ORG , or businesses which were registered in ORG under section CARDINAL(CARDINAL ) of the Private Business Activities Act ( i.e. voluntarily and not pursuant to the obligation to register under section CARDINAL ) of the Act ) . The applicant company also submitted that , even though the contents of the Rules were not legally binding , businesses were applying them for the sake of convenience . It further maintained that ORG , having applied the ORG which were not legally binding , had breached section CARDINAL(CARDINAL ) of Administration of Taxes Act ( No . CARDINAL/CARDINAL ) as amended ( zákon o správě daní a poplatků ) , which had provided that tax administrators were obliged to act and decide in compliance with statutes ( zákony ) and other legislative or regulatory instruments binding in general ( obecně závazné právní předpisy ) , and section CARDINAL(CARDINAL ) of LAW ( No . CARDINAL/CARDINAL ) as amended ( zákon o důchodové dani ) , as it had concluded that the profits of the applicant company had been increased by amounts by which its expenses had not been increased contrary to the law .", "On DATE ORG rejected the applicant company 's appeal . It considered that in DATE ORG was entitled to regulate the way in which accounts were to be kept and that there was no law obliging the ORG to publish principles and regulations concerning this matter in ORG . Under section CARDINAL(CARDINAL)(b ) of LAW ( No . CARDINAL/CARDINAL ) ( zákon o sbírce zákonů ) , measures ( opatření ) of central administrative authorities and other central authorities were to be published only where statute so required . As the applicant company did not increase its income tax base for DATE , it had not complied with the ORG , and there was a breach of section CARDINAL(CARDINAL ) of ORG .", "On DATE the applicant company lodged a constitutional appeal alleging a violation of its right under Article CARDINAL ) of the LAW , according to which “ everyone shall be allowed to do anything which is not forbidden by law , and no one shall be forced to do anything which is not required by law ” . It also invoked Article PERSON ) of LAW , according to which “ obligations shall be imposed only by law , within its limits , and by observing fundamental rights and freedoms ” . The applicant company claimed that ORG had not decided whether the ORG met the requirements of LAW regarding generally binding legislative or regulatory instruments , and had not taken into consideration the principle that any secondary legal act must be published in ORG ( sbírka zákonů ) , must have an appropriate title and form , and must be intended to become valid and enforceable in order to be binding on individuals and legal entities not subordinate to the issuing body .", "The applicant company also criticised the opinion of ORG that it was obliged to observe internal regulations ( interní normativní akty ) which were not accessible to it and whose contents could not objectively be found out and applied . The applicant company concluded that in DATE it had been required to fulfil obligations imposed on it by the ORG , of which it had not been , and could have not been , aware as they had been imposed in a manner and form incompatible with LAW .", "On DATE ORG ( PERSON ) dismissed the applicant company 's constitutional appeal as ill - founded . The ORG found inter alia that :", "\" LAW ... established the obligation to keep single or double - entry book - keeping in compliance with accounting rules as prescribed by law . In DATE the ... ORG was entitled to set up conditions and requirements for accounting ... To specify obligations set out in LAW ... , the ... ORG issued ORG , ... published in Financial Bulletin No . CARDINAL . This measure ... further defined obligations on businesses in respect of book - keeping . Moreover , section CARDINAL(CARDINAL ) and ( CARDINAL ) define the responsibility of businesses for the state of their accounting records and set out the sanctions arising from a violation of the obligations under ... LAW ... or from a failure to observe the Rules . This measure , which sets up standards of book - keeping for private businesses , was followed by ORG ... of DATE , ... published in Financial Bulletin No . CARDINAL ... The date of the entry into force of these Regulations is not specifically given ; nevertheless , it states that the transfer from single to double entry book - keeping shall always take place on DATE of DATE ...", "... as regards any insufficiency in the publication of those Regulations ... , the ORG can , in general , agree with the applicant that ordinary legal acts become valid only when published in ORG . In cases where there is no reason to publish generally binding legal acts of central administrative authorities , such legal acts must be announced in ORG . The present case concerned a regulation of a ... central administrative authority which , in the light of section CARDINAL(CARDINAL)(b ) of LAW , had to be published in ORG only if so provided by law . This was not the case for LAW . \"", "NORP tax legislation has adopted the principle that taxes and contributions may be imposed only on the basis of statute ( zákon ) , as enunciated in LAW .", "At the material time income tax was governed by LAW ( No . CARDINAL/CARDINAL ) which came into force on DATE . Under section CARDINAL ) , the tax base was the profits resulting from the activities caught by the tax , as established in the taxpayer ’s accounts , together with any amounts by which the expenses shown in those accounts had been increased or the revenues reduced in violation of the law . The LAW was successively amended by Acts Nos . CARDINAL/CARDINAL , PERSON and DATE .", "On DATE ORG ( No . DATE ) came into force . It governed , inter alia , the procedure for the assessment of tax obligations and the calculation of taxes to be applied by financial authorities and taxpayers . Under section CARDINAL(CARDINAL ) , tax administrators were obliged to act in compliance with statutes and other generally binding legislative and regulatory instruments , and to protect the interests of the ORG while maintaining the rights and legal interests of taxpayers and other persons involved in tax proceedings . The LAW was successively amended by Acts Nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and ORG .", "The obligation for businesses to keep single or double - entry book accounts in compliance with prescribed accounting principles was laid down by section CARDINAL(CARDINAL ) of ORG ( No . DATE ) , which came into force on DATE . According to the first paragraph of this provision , businesses were required to keep accounts showing their revenues , their expenses and the results of their business activities , and the assets used for , and the liabilities ensuing from , those business activities . The Act specified neither the legal form under which accounting principles be adopted nor the authority entitled to issue them .", "ORG had jurisdiction over accounting matters by virtue of section CARDINAL of the Socio - economic Information Act ( No . CARDINAL/CARDINAL ) , as amended by Act No . DATE , which empowered the ORG to regulate accounting , budgeting , calculation and matters of financial reporting , and to issue model accounts , related guidelines and other accounting standards . LAW did not require the Ministry to publish measures taken by it in ORG .", "The Private Business Accounting Rules ( “ the Rules ” ) , published in Financial Bulletin No . CARDINAL on DATE , introduced the requirement for businesses to use single or double - entry book - keeping and indicated that the base accounting period was to be DATE . The Rules came into effect on DATE . They referred to ORG and the fact that they were issued by ORG for the purposes of specifying the obligations introduced by LAW . They did not , however , make transitional regulations for businesses which were starting to use double - entry book - keeping . They set out the sanctions arising from a violation of the obligations under LAW and from a failure to observe the Rules .", "The Regulations on the procedure for passing from single to double - entry book - keeping ( “ the Regulations ” ) , published in Financial Bulletin No . CARDINAL on CARDINAL DATE , made provision for the transition from single to double - entry book - keeping . Amongst other matters , LAW ) provided that , when the transition was made , the FAC income tax base for DATE was to be increased , apart from non - deductible and deductible items specified by statute , by the value of materials , depreciating assets and stock , if the relevant invoices were entered in the accounting books and had been paid before DATE of DATE . The Regulations did not contain any reference to ORG and did not specify the date on which they would become effective .", "Neither the Rules nor the ORG were published or announced in ORG .", "LAW ( No . CARDINAL/CARDINAL ) , as amended by Act No . DATE , governed , inter alia , the manner of promulgating legislative or regulatory instruments binding on individuals and legal entities in general , as well as the measures of central authorities .", "According to section CARDINAL , the full wording of all constitutional and other statutes ( zákony ) enacted by ORG and legal measures ( zákonná opatření ) taken by the ORG President ’s office , orders issued by the ORG ( nařízení vlády ) and legislative statutory instruments taken by central administrative or other central authorities - decrees ( vyhlášky ) , save for the exceptions enumerated in section CARDINAL , must be published in ORG .", "According to section CARDINAL , in the case of rulings ( výnosy ) issued by the central administrative or other central authorities , an announcement in ORG of their delivery will suffice if they concern , inter alia , a small number of recipients , or govern details of labour and social security rights and obligations of a group of closely linked persons .", "Section CARDINAL provides that the legal acts enumerated in sections QUANTITY and CARDINAL become valid on DATE of their publication in ORG and are enforceable on DATE after such publication , unless otherwise postponed .", "Section CARDINAL(CARDINAL)(b ) provides that measures ( opatření ) taken by the central administrative or other central authorities can either be published in full in ORG , or simply announced there where a statute so requires . According to section CARDINAL(CARDINAL ) , such measures or internal instructions ( vnitřní směrnice ) are not to be described as “ decrees ” or “ rulings ” ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by their agent , Ambassador PERSON , Head of ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant crossed the border between GPE and GPE . A considerable amount of cigarettes which he had failed to declare to the customs authorities were found in his car . The cigarettes were seized and criminal proceedings were opened against him .", "According to the Government , the applicant , when he was apprehended , was cautioned in writing that he could request a hearing of his case by a trial board ( ORG ) . In case of simplified proceedings the request would have to be made in the objection against the provisional penal order ( PERSON ) , in other cases it could be made at any time before the start of the oral hearing .", "On DATE a provisional penal order was issued , finding the applicant guilty of attempted smuggling and attempted breach of the ORG 's tobacco monopoly and imposing a fine on him . The order contained information stating that the applicant could file an objection against it and that he could request the further proceedings including the hearing to be held by a trial board .", "The applicant lodged an objection ( PERSON ) . He did not request that his case be heard by a trial board .", "On DATE ORG Hauptzollamt ) , as tax offences authority of first instance , held a hearing .", "On DATE ORG issued a penal order ( PERSON ) , finding the applicant guilty of attempted smuggling and of attempted breach of the ORG 's tobacco monopoly . It imposed a fine of CARDINAL NORP schillings ( ORG ) on him with DATE imprisonment in default . Further , it ordered the forfeiture of the cigarettes . The penal order informed the applicant of his right to appeal within DATE from its service . Further , it stated that the appeal would be examined by ORG for GPE , GPE and ORG ) as tax offences authority of second instance . If the appellant so requested , the hearing of the appeal would be held and the decision be taken by ORG appeals board ( ORG ) .", "On DATE the applicant appealed . However , he did not request that the appeal be heard by the appeals board .", "On DATE ORG , as tax offences authority of second instance , dismissed the applicant 's appeal .", "On DATE the applicant , represented by counsel , requested ORG ) to grant him legal aid for the purpose of filing a complaint against ORG decision . As grounds for the complaint he submitted that none of the authorities which had dealt with his case qualified as a tribunal within the meaning of LAW , as both , ORG and ORG , were purely administrative authorities . Moreover , the criminal proceedings against him had lasted unreasonably long .", "On DATE ORG requested the applicant to supplement his legal aid request which the applicant did on DATE .", "On DATE the President of ORG dismissed the applicant 's request for legal aid on the ground that the complaint lacked prospects of success . He noted that there was no indication that the decision at issue was based on an unlawful provision or that the application of the law in the present case raised an issue of constitutional law . This decision was served on the applicant 's counsel on DATE . The letter accompanying it informed the applicant that he remained free to lodge a complaint with ORG within DATE . If he wished to do so he had to be represented by counsel of his own choosing .", "The applicant did not lodge a complaint with ORG .", "Under LAW ( Bundes - verfassungsgesetz ) ORG decides , inter alia , on applications ( Beschwerden ) in which it is alleged that the administrative authorities have breached their duty to decide .", "Article CARDINAL of LAW , in its relevant part , reads as follows :", "“ An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty . An action for breach of the duty to decide is inadmissible in administrative criminal proceedings , except private prosecutions and prosecutions in respect of tax offences . ”", "Section CARDINAL of LAW ( Allgemeines Verwaltungsverfahrensgesetz ) deals with the administrative authorities ' duty to decide . Its relevant part reads as follows :", "“ ( CARDINAL ) ORG to any contrary provision in the administrative regulations , the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at DATE after the application or appeal has been lodged .", "( CARDINAL ) If the decision is not served on the party within this time - limit , jurisdiction will be transferred to the competent superior authority upon the party 's written request . ... ”", "In proceedings under LAW an application for transfer of jurisdiction to the superior authority is excluded .", "LAW ( Verwaltungsgerichtshof - gesetz ) relating to the application against the administration 's failure to decide read as follows :", "“ An application under LAW for breach of the duty to decide ( application against the administration 's failure to decide ) can be lodged only when the highest authority to which an application can be made in administrative proceedings , either by way of an appeal or an application for transfer of jurisdiction , ... has been applied to by a party and has not made a decision on the matter within DATE . ... ”", "According to ORG judgment of CARDINAL DATE ( published in the official collection of that court 's decisions , PERSON ) , ORG may receive applications against the administration 's failure to decide under LAW , taken in conjunction with section CARDINAL of LAW , also where an authority of first instance has failed to give a decision within the statutory DATE time - limit , provided that no other remedy ( such as a request for a transfer of jurisdiction ) lies against the failure to decide ( see PERSON v. GPE , no . CARDINAL , § DATE , ECHR CARDINAL-I ) .", "The competence of the tax authorities as regards proceedings relating to tax offences and the conduct of these proceedings are regulated in LAW ( Finanzstrafgesetz ) . The relevant provisions , as in force at the material time , contained the following rules .", "Pursuant to section LAW ( a ) of LAW , ORG , as a tax offences authority of first instance , is competent to conduct the proceedings concerning inter alia smuggling or breach of monopoly regulations . According to section CARDINAL § CARDINAL a trial board shall hold the hearing and give the decision where the relevant value exceeds a certain amount . As to other offences , it is up to the defendant to request a decision by the trial board . In case of so - called simplified proceedings such a request shall be made in the objection against the provisional penal order .", "Pursuant to section CARDINAL § CARDINAL an appeal will be decided upon by ORG as tax offences authority of second instance . According to section CARDINAL § CARDINAL an appeals board shall hold the hearing and give the decision on the appeal , if it is directed against the decision of a trial board or if the appellant so requests .", "Section CARDINAL regulates the organisation of the trial boards and the appeals boards . Its paragraph CARDINAL provides that their members are not bound by any instructions . According to its paragraph CARDINAL , the trial boards consist of CARDINAL members : a judge as chairperson , CARDINAL member of the senior service of the tax authorities and CARDINAL lay member . The appeals boards consist of CARDINAL members : a judge as chairperson , CARDINAL member of the senior service of the tax authorities and CARDINAL lay members .", "Pursuant to CARDINAL members of the above boards are appointed by the Federal President upon nomination by ORG . Their term of office is DATE .", "Section DATE provides that ORG has to fix , for DATE in advance , the number of trial boards and appeals boards , their chairpersons and members and the sequence in which members have to step in if a member is unable to sit . ORG also has to allocate the business of the trial boards and the appeals boards for DATE in advance .", "Meanwhile , on DATE , a reform encompassing the appeal procedures in all tax matters has entered into force BGBl . ( ORG ) no . CARDINAL/CARDINAL . A new body , ORG ( PERSON ) has been created to hear appeals . As to proceedings relating to tax offences , the provisions on trial boards have not changed , whereas the appeals board is now part of ORG and its composition has changed : it consists of CARDINAL of the Presidents of the Independent Finance Panel , CARDINAL full - time member of the latter and CARDINAL lay members . The term of office of the President and the other full - time members of ORG is indefinite ." ]

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[ "The applicant was born in DATE and lives in GPE .", "DATE the applicant was the Director of ORG ( PERSON informačná služba ) , which is the NORP intelligence service .", "On DATE Mr PERSON , the son of the then President of GPE , was forcibly taken from GPE to an NORP village in the vicinity of the NORP border . Following a phone call the NORP police found him intoxicated in a car . He was detained as ORG ( ORG ) had issued an arrest warrant against him .", "On DATE ORG ( Oberlandesgericht ) refused to extradite PERSON to GPE for the purpose of his prosecution there . ORG held , inter alia , that witness statements by a former member of ORG and by the President of GPE supported PERSON allegation that members of the NORP secret service had brought him to GPE against his will in the context of political controversies in GPE .", "NORP The NORP police started an investigation into the incident and expressed the view that several offences had been committed in that context .", "On DATE Mr PERSON , the Prime Minister , who at the time , under LAW , exercised several powers entrusted to the President of GPE , delivered a decision on amnesty ( rozhodnutie o amnestii ) , the relevant parts of which read :", "“ The Prime Minister of GPE , in the exercise of his powers under LAW and LAW ) of LAW of GPE , on the occasion of the fifth anniversary of the establishment of GPE , gives the following decision on amnesty as a contribution to reaching civic reconciliation and in the interest of eliminating possible sources of tension in society : ...", "I order that criminal proceedings should not be started and , if they have already been started , should be discontinued in respect of criminal offences committed in the context of the notification of the abduction of PERSON junior abroad . ”", "The decision was published in LAW .", "On DATE the following decision on amnesty given on DATE by PERSON in his capacity as Acting President of GPE was published in LAW :", "“ The Prime Minister of GPE , in the exercise of his powers under LAW and LAW ) of LAW of GPE , in the interest of eliminating disputes as regards the interpretation of the decision on amnesty adopted on DATE ... , declares the following decision on amnesty : ...", "I order that criminal proceedings should not be started and , if they have already been started , should be discontinued concerning the suspicion of criminal offences allegedly committed in the context of the reported abduction of ORG . PERSON ... abroad , which allegedly occurred on DATE . ”", "On DATE the police investigator decided not to pursue the case concerning the above offences which , as the decision stated , had been committed by unknown perpetrators . Reference was made to the decision on presidential amnesty of DATE and to LAW ) and LAW .", "In DATE the applicant was elected as a member of ORG ( the ORG ) for a DATE term .", "On DATE the newly appointed Prime Minister , Mr M. Dzurinda , in his capacity as Acting President of GPE , delivered a new decision on amnesty in the above case . The decision was published in LAW on DATE and it reads :", "“ The Prime Minister of GPE , in the exercise of his powers under LAW and LAW ) of LAW of GPE , in the interest of eliminating disputes as to the conformity with LAW of the decisions on amnesty of DATE ... and DATE ... , declares the following decision on amnesty :", "LAW VI of the decision on amnesty of CARDINAL DATE ... and LAW II of the decision on amnesty of DATE ... are revoked . ”", "In DATE the DATE newspaper PERSON published declassified parts of a report on the activities of ORG submitted by its newly appointed Director . The report stated , inter alia , that ORG had taken extensive measures with a view to concealing its involvement in the abduction of PERSON and in order to hamper an appropriate investigation into the circumstances surrounding that incident .", "After the relevant parts of the above decisions on the presidential amnesty of CARDINAL DATE and of DATE had been revoked , a police investigator , on DATE , informed ORG that the applicant was suspected of having committed several offences in the context of the abduction of PERSON . As the applicant enjoyed immunity as a member of ORG , the investigator requested that ORG give its consent to his prosecution . In a decision of DATE ORG granted the investigator ’s request .", "On DATE the police investigator started criminal proceedings against the applicant . The applicant was accused of several offences on the ground that he had been involved , in his capacity as Director of ORG , in the abduction of PERSON PERSON in DATE .", "On DATE the ORG gave its consent to the applicant ’s detention on remand . On DATE the Bratislava CARDINAL ORG ( ORG súd ) detained the applicant on remand with reference to LAW . The decision stated that the applicant might influence the witnesses or otherwise hamper the investigation .", "NORP The applicant lodged a complaint . He argued , inter alia , that the Prime Minister ’s above - mentioned decision of DATE was contrary to the LAW . ORG ( PERSON súd ) dismissed the complaint on CARDINAL DATE . The decision stated that the applicant ’s case fell within the jurisdiction of ORG . ORG further held that the applicant had been remanded in custody in accordance with the relevant law .", "On DATE and DATE the applicant filed an application for release . On DATE the Bratislava CARDINAL ORG dismissed it . The decision stated that the applicant had attempted to contact other members of ORG and that he might influence witnesses in the event of his release .", "On DATE and CARDINAL DATE the applicant lodged a complaint against that decision . On DATE he argued , with reference to ORG decision no . I. ÚS CARDINAL/CARDINAL of DATE ( see “ Proceedings before the ORG ” below ) , that the decision to quash the relevant part of the presidential amnesty had been contrary to LAW . The applicant further argued that no relevant reason existed for his detention .", "On DATE ORG ordered the applicant ’s release . ORG found that most of the relevant evidence had been taken and that the assumption that the applicant could influence witnesses or his co - accused was no longer justified . The applicant was released on DATE .", "NORP The Minister of Justice lodged a complaint in the interests of the law against that decision . On DATE ORG ( Najvyšší súd ) dismissed the complaint . In ORG view , ORG had proceeded in accordance with the relevant provisions of LAW . ORG decision further stated that the case was at a preliminary stage and that it was therefore for the prosecuting authorities dealing with it to decide what conclusions should be drawn from ORG decision of DATE , according to which the LAW did not allow the quashing of an earlier amnesty .", "On DATE the applicant and CARDINAL other persons were indicted for several offences before GPE ORG .", "On DATE ORG discontinued the criminal proceedings against the applicant and the other accused with reference to LAW ) , LAW ) and LAW ) of LAW . ORG addressed as a preliminary issue the validity of the above decisions on amnesty . Its decision stated that the Prime Minister ’s decision of DATE to revoke the relevant provisions of his predecessor ’s decision to grant an amnesty in relation to the offences imputed to the applicant and his co - accused was null and void and that it had no basis in LAW . The decision on amnesty issued on DATE was final , irrevocable and not subject to review . Both the criminal character of the action in issue and any criminal liability in that respect had been thereby removed and there was no provision in NORP law by which that position could be changed .", "On DATE ORG dismissed a complaint by the public prosecutor against ORG decision . It also dismissed a complaint by the applicant and his co - accused concerning the relevant legal provisions on which the decision to discontinue the proceedings had been based .", "With reference to LAW ) of LAW , ORG held that the prosecuting authorities were obliged , regardless of their opinion , to respect the amnesty granted by the Prime Minister in the exercise of certain powers vested in the President . The granting of amnesty was the manifestation of the individual will of a person entitled to take such an action under the relevant provisions of LAW . In ORG view , there was no scope for subsequently altering such will .", "The Prosecutor General lodged a complaint in the interests of the law against ORG decision .", "The complaint was dismissed by ORG on DATE . The decision stated that the amnesty of DATE relating to the offences imputed to the applicant and his co - accused prevented the criminal proceedings against them from being pursued . ORG shared the lower courts’ view that the investigator ’s decision of CARDINAL DATE not to pursue the case was final and that LAW contained no provision permitting the proceedings concerning the offences in question to be resumed after the matter had become res judicata .", "ORG expressed the view that the Constitutional Court ’s decision no . I. ÚS CARDINAL/CARDINAL of DATE had confirmed the position in the case on the basis of legal theory and existing practice . As a general rule , a decision on amnesty published in accordance with the relevant requirements could not be quashed . While it was true that ORG finding did not directly affect the contested decision on amnesty of DATE , the interpretation by ORG of the relevant issue was decisive when determining whether a particular authority or person had exceeded their powers . The decisions of the lower criminal courts to discontinue the criminal proceedings had therefore been in conformity with LAW , which defined GPE as a ORG based on the rule of law .", "ORG shared the interpretation by ORG ( decision no . ORG CARDINAL/CARDINAL ) of the terms of the amnesty decisions of CARDINAL DATE and DATE . It admitted that the rather unusual phrasing of those decisions had raised difficulties as to their interpretation . Ordinary courts were obliged to observe the principle in dubio pro reo when interpreting and implementing a decision on amnesty . The decisions on amnesty of CARDINAL March and DATE had been issued in accordance with the legal order of GPE . That was not the case , however , as regards the subsequent decision to revoke the relevant parts of those decisions . The courts were obliged to abide by the law in force .", "On DATE members of parliament filed a petition for interpretation of LAW ) of the LAW . They challenged the decisions on amnesty of DATE and DATE as being an abuse of power and contrary to the principles of a ORG based on the rule of law . The plaintiffs sought a finding that in the exercise of all his or her powers the President of GPE was limited by the solemn pledge to act in the interests of the citizens and to respect and protect the LAW and other laws .", "On DATE ORG ( First Chamber ) dismissed the petition as falling short of the formal requirements . Since the decisions in issue in no way affected the powers of ORG and the rights of its members , there existed no legally relevant dispute over the interpretation of LAW ) of the LAW calling for interpretation of that provision .", "On DATE CARDINAL members of parliament requested ORG to give an interpretation of LAW ) of the LAW concerning the President ’s right to grant an amnesty . They argued that the quashing of a presidential decision on amnesty had no legal basis . The alleged reason for the decision of DATE had been the elimination of disputes concerning the conformity with the LAW of the decisions of CARDINAL DATE and DATE . However , only ORG was entitled to determine such disputes .", "In his submission to ORG the Prime Minister , PERSON , argued that the point in issue was not governed by LAW . It followed from the principles of a ORG based on the rule of law , as laid down in LAW , that decisions which were not subject to any review should be permissible in exceptional cases only . It was generally known that ORG and its representatives were suspected of being involved in the offences covered by the amnesty . It was therefore in the general interest to have the matter elucidated . His predecessor ’s decision to grant the amnesty in issue had been an abuse of power and contrary to the interests of the citizens . DATE of the principles of a ORG based on the rule of law required that the situation be remedied . The President or the Acting President was allowed to use the rights vested in him or her by the LAW only within the scope of the constitutional principles in force in GPE . Reference was made to LAW adopted by ORG of ORG on DATE . The Prime Minister argued that a decision on amnesty could be amended or quashed exceptionally where the contents of such a decision were contrary to the LAW and the principles on which it was based .", "On DATE ORG adopted , under LAW , decision no . PERSON , the operative part of which reads :", "“ ... interpretation of LAW ) of LAW of GPE :", "The right of the President of GPE under LAW ) of LAW of GPE consists in granting amnesty in any of the forms set out in that Article .", "However , this right does not authorise the President of GPE to amend , in any way whatsoever , a decision on amnesty which has been published in LAW . ”", "Decision no . I. ÚS CARDINAL/CARDINAL was published in LAW on DATE . In it ORG ( First Chamber ) had recourse to an extensive linguistic , logical , historical and systematic interpretation of the provision in issue . It stated that LAW did not envisage the possibility of resuming criminal proceedings following a decision to quash an amnesty . Reference was also made to LAW and to LAW . As to UN Declaration CARDINAL/CARDINAL , it related to the granting of amnesty and did not imply that an amnesty which had been granted should be revoked .", "NORP The prerogative of granting an amnesty and the obligation to comply with it confirmed the separation of powers in a ORG founded on the rule of law , based on the principle of legal certainty and the necessity to protect acquired rights . An amnesty ( individual pardon ) did not belong to the category of fundamental rights and freedoms of citizens and there existed no legal entitlement to have it granted . The President was therefore under no obligation to grant an amnesty . By making use of the right to grant amnesty , the President prevented the judicial branch of power from exerting an effect on citizens in certain cases . As a representative of the executive branch of power , the President took over the responsibility for such a decision .", "Admittedly , the alleged offences covered by the amnesty in issue were of a serious nature . However , no particular offence was excluded from the President ’s right to grant amnesty under NORP law . An amnesty was an individual act in respect of which no remedy was available . No retroactive effect of the decision on amnesty of DATE could therefore be envisaged .", "In the decision of DATE ORG concluded that LAW ) of the LAW could not serve as a basis for any decision by which the President of the GPE adversely affected , from the point of view of criminal law , the position which a person had acquired as a result of an amnesty .", "In a petition of CARDINAL DATE the applicant complained to ORG that his rights , including those under LAW , had been violated in that the criminal proceedings against him had been pursued despite the decisions on amnesty given on DATE and DATE .", "The Second Chamber of the Constitutional Court rejected the petition on DATE ( decision no . II . ÚS CARDINAL/CARDINAL ) . The decision stated , inter alia , that the decisions on amnesty of CARDINAL DATE and DATE were phrased in such a way that they did not rule out the applicant ’s prosecution for the offences in issue and his detention on remand , regardless of the decision of CARDINAL DATE .", "Furthermore , the decision on the interpretation of the relevant provisions of the LAW set out in decision no . I. ÚS CARDINAL of DATE was of an abstract nature and had no legal effect in respect of any actions , omissions or decisions of the ORG authorities which had given rise to the point at issue . Decision no . I. ÚS CARDINAL/CARDINAL of DATE could not be effective prior to its adoption and publication in LAW . In any event , it did not affect the decision on amnesty of DATE . The above conclusions were later published in ORG of ORG .", "On DATE the applicant complained that the authorities which had taken decisions leading to his detention ( ORG , police investigators , ORG in GPE and the Bratislava CARDINAL ORG ) had infringed his rights under LAW .", "The Constitutional Court ( Second Chamber ) declared the submission inadmissible on DATE . It held that the proceedings in issue were still pending . The above authorities had acted in accordance with the relevant law and there was no indication that the applicant ’s rights under LAW had been violated .", "On DATE the applicant lodged another petition with ORG . He alleged a violation of LAW in that he had been prosecuted for offences which were covered by the amnesty of DATE and CARDINAL DATE .", "DATE . On DATE ORG dismissed the petition as being manifestly ill - founded . The decision stated , inter alia , that decision no . I. ÚS CARDINAL/CARDINAL of DATE concerned merely the interpretation of the relevant provision of the LAW . It did not , as such , retroactively affect the validity of the decision on amnesty of DATE as the decision on the interpretation of the relevant provisions of the LAW had produced effects only following its publication in LAW on DATE . Finally , the decisions on amnesty of DATE and DATE respectively concerned offences relating to the “ notification ” of the abduction of PERSON and his “ reported abduction ” , but not any offences committed in the context of his abduction as such . The prosecution of the applicant for the last - mentioned offences was therefore permissible in any event .", "On DATE ORG declared partly admissible a complaint by CARDINAL of the applicant ’s co - accused ( case no . ORG CARDINAL/CARDINAL ) .", "The decision addressed , inter alia , the question whether the ORG had authorised the Prime Minister , as required by LAW , to give a decision on amnesty on DATE . ORG had submitted only a decision of DATE authorising PERSON to exercise certain presidential powers including those under LAW ) of the LAW . No separate decision to similar effect had been submitted indicating that the new ORG set up following the parliamentary election held in DATE had authorised its Prime Minister , PERSON , to exercise the presidential power in issue . ORG concluded that the decision on amnesty of CARDINAL DATE had been given contrary to LAW and was therefore not a legal act ( non negotium ) .", "On DATE ORG allowed both PERSON M. Dzurinda , the Prime Minister , and the applicant to intervene as third parties in the proceedings . The former alleged that he had been duly authorised to use the presidential power under LAW ) of the LAW . ORG held that it had determined that issue in its above - mentioned decision of DATE .", "On DATE ORG found a violation of the petitioner ’s rights under LAW in that the investigator had brought criminal proceedings against him , on DATE , notwithstanding that the offences of which he had been accused were covered by the amnesty of CARDINAL DATE and DATE . ORG quashed the investigator ’s decision . As a result , the criminal proceedings against the petitioner were dropped .", "The investigator ’s decision of DATE to discontinue the criminal proceedings was final and could not be changed under NORP law .", "ORG also addressed the question as to the date from which its above - mentioned decision no . I. ÚS CARDINAL/CARDINAL was effective . That decision concerned the interpretation of LAW ) of LAW and , as such , was of a declaratory nature . Where relevant , such a decision was effective ex tunc . The fact that a public authority , prior to the finding of ORG , had considered its actions to be in conformity with the LAW could not serve as a justification for such actions once ORG had found that this was not the case .", "The Constitutional Court ( First Chamber ) dismissed the argument that its decision no . I. ÚS CARDINAL/CARDINAL had been effective only from the moment of its publication in LAW on DATE . In particular , neither LAW DATE nor LAW DATE provided for compulsory publication in LAW of a decision under LAW . The binding effect of similar decisions could not , therefore , depend on whether or not they were published in LAW .", "The judgment no . I. ÚS CARDINAL/CARDINAL of DATE was later published in ORG of ORG . The conclusion was highlighted , as relevant case - law , that prosecution of a person for actions whose criminal character had ceased to exist was contrary to LAW .", "Judge PERSON disagreed with the above - mentioned decisions by ORG composed of CARDINAL judges . At that time the relevant statutory provisions did not allow separate opinions to be published together with the judgment . His dissenting opinion was later published in the journal PERSON revue ( no . CARDINAL/CARDINAL ) .", "The view was expressed in the opinion that judgment no . I. ÚS CARDINAL/CARDINAL departed from the previous ( and established ) practice concerning the requirement to exhaust the other available remedies prior to lodging a complaint with ORG . Such a decision had caused legal uncertainty and could lead to confusion as to which authorities were primarily charged with the protection of ORG fundamental rights and freedoms . Such departure from the previous practice of ORG had no objective justification .", "After delivery of ORG decision no . PERSON , ORG of GPE , on DATE , issued a statement expressing the standpoint of ORG . The statement indicated that the interpretation by LAW CARDINAL(i ) of the LAW was to apply for the future and had no effect on the binding character of decisions on amnesty which had been previously published in LAW .", "There had been no reason for the proceedings against the applicant to be discontinued since a grammatical and logical interpretation of the relevant provisions of the amnesty decisions of DATE and DATE led to the conclusion that those decisions did not apply to the criminal offence of forcible abduction of PERSON junior to a foreign country , committed on DATE , as such or to other criminal offences which the criminal proceedings concerned .", "Finally , reference was made to several sets of proceedings pending before ORG , whose outcome was decisive for the further examination of the charges against the applicant and his co - accused .", "After the applicant ’s release a group of members of parliament attempted , on several occasions , to revoke the above - mentioned decisions on amnesty by Mr Mečiar by tabling a draft constitutional law to that effect . The attempts failed as the proposal was not supported by the required majority of CARDINAL members of parliament .", "Until DATE Article CARDINAL(i ) read as follows :", "“ The President [ of GPE ] grants amnesty , pardons or mitigates sentences imposed by criminal courts , orders that criminal proceedings should either not be started or not be pursued and expunges sentences . ”", "With effect from DATE the above provision was replaced by LAW ) and CARDINAL which read :", "“ CARDINAL . The President [ of GPE ] ... ( i ) grants amnesty , pardons or mitigates sentences imposed by criminal courts , orders that criminal proceedings should either not be started or not be pursued and expunges sentences .", "A presidential decision on ... amnesty is valid subject to its signature by the Prime Minister or a minister empowered to do so . In such cases the Government bears the responsibility for the President ’s decision . ”", "With effect from DATE Article CARDINAL § CARDINAL(j ) entitles the President of GPE to pardon and mitigate sentences imposed by courts in criminal proceedings and to expunge convictions by means of an individual pardon or an amnesty . LAW CARDINAL provides that a decision on amnesty is valid subject to its signature by the Prime Minister or a minister whom the latter has duly authorised . In such cases the Government bears the responsibility for the President ’s decision .", "In a commentary on the LAW written by a group of authors headed by the then President of ORG and published in DATE the view was expressed that a presidential decision on an amnesty could not be quashed ( PERSON a kolektív : PERSON k PERSON republiky , GPE slovenská DATE , p. CARDINAL ) .", "DATE . Article CARDINAL § CARDINAL obliges ORG authorities to act exclusively on the basis of the LAW and within its scope . The mode and extent of their action is to be governed by law .", "Under LAW , any person can be prosecuted or deprived of his or her liberty only for reasons and by means provided for by law . Under paragraph CARDINAL of Article CARDINAL , a person can be remanded in custody only for reasons and during a period of time provided for by law and in accordance with a decision of a court .", "Article CARDINAL § CARDINAL provides that the Government , which may authorise the Prime Minister to act on its behalf in that respect , is entitled to exercise a certain number of presidential powers when the office of the President is vacant or when the President is prevented from carrying out his or her duties . Until DATE those powers included the prerogative of mercy within the meaning of LAW ) of LAW .", "Article CARDINAL § CARDINAL , as in force at the relevant time , provided :", "“ The Constitutional Court shall interpret constitutional laws where there is a dispute about the point in issue . A law shall provide for the conditions . ”", "As from DATE Article CARDINAL provides :", "“ The Constitutional Court shall give an interpretation of the LAW or a constitutional law where a dispute exists over the matter . ORG decision on interpretation of the LAW or a constitutional law shall be made public in the same manner as laws . The interpretation [ given by ORG ] is binding for everybody from the date of its publication . ”", "In judgment no . I. ÚS CARDINAL/CARDINAL of CARDINAL DATE ORG specified the legal effects of its decisions on the interpretation of LAW . It characterised such decisions as a general expression , by an independent judicial body in charge of protection of LAW , of the legal view on the implementation of a provision over which there was a dispute . According to the judgment , such decisions in themselves can not , however , establish , modify or remove the rights either of the parties to the proceedings in the context of which the relevant dispute arose or of any third persons .", "The following relevant provisions of LAW were in force at the material time .", "Pursuant to section CARDINAL , where a chamber of ORG , in the context of its decision - making activity , reaches a different legal opinion from that expressed by another chamber of ORG under LAW , the chamber concerned has to submit the matter for examination at a plenary meeting of ORG . The conclusion reached at the plenary meeting is binding on the chamber concerned .", "Section CARDINAL(CARDINAL ) provides that the ORG delivers a judgment ( nález ) on the merits of the case unless LAW provides otherwise . It determines other matters by means of a decision ( uznesenie ) .", "DATE . Pursuant to section CARDINAL(CARDINAL ) , as in force until DATE , where the view of ORG expressed in a judgment on the merits of a case or in a decision on the interpretation of constitutional laws under LAW was of general importance , ORG could decide to have it published in LAW . Since DATE publication in LAW of such decisions has been mandatory ( section ORG ) ) .", "Pursuant to section DATE , requests for interpretation of constitutional laws are examined in camera by CARDINAL of the chambers of ORG . The chamber delivers decisions in such cases .", "The following provisions of LAW were in force at the relevant time .", "Article CARDINAL was entitled “ Inadmissibility of Criminal Prosecution ” . Pursuant to paragraph CARDINAL(a ) , as in force until DATE , criminal proceedings could not be brought or , if they had already been instituted , were to be discontinued when an order to that effect was given by the President in the exercise of his right to grant a pardon or an amnesty .", "Under LAW ) , criminal proceedings can not be brought or , if they have already been instituted , are to be discontinued when , inter alia , earlier criminal proceedings against the same person concerning the same matter were discontinued by means of a final decision , with the exception of cases where such final decision was quashed in subsequent proceedings provided for by law .", "Pursuant to LAW ) , an accused can only be remanded in custody when there are specific grounds to believe that he or she will influence witnesses or the co - accused or otherwise hamper the investigation into the relevant facts of the case .", "Article CARDINAL in conjunction with Article CARDINAL provides that only a person accused of an offence in the context of criminal prosecution can be remanded in custody .", "Pursuant to LAW , a public prosecutor , an investigator or a police authority at a stage prior to bringing criminal proceedings is obliged to set a case aside by means of a decision where criminal prosecution is inadmissible within the meaning of LAW of LAW .", "Article CARDINAL § CARDINAL(c ) in conjunction with Article CARDINAL § DATE ) provides that a court has to discontinue criminal proceedings , after a preliminary examination of the indictment , where prosecution is not permissible for reasons set out in LAW .", "A group of CARDINAL lawyers specialising mostly in constitutional law made public their opinion disagreeing with ORG judgment no . ORG CARDINAL/CARDINAL and its decision no . I. ÚS CARDINAL/CARDINAL . They argued that a decision of ORG on the interpretation of a provision of the LAW could not have retroactive effect . Such decisions produced effects only after their promulgation .", "The authors of the article also challenged the decision on amnesty of CARDINAL DATE as they considered it to be in breach of the President ’s duty to act in the interests of the citizens and to abide by LAW . The ORG other objections related to the admission , by ORG , of a petition by a group of CARDINAL members of parliament in case no . I. ÚS CARDINAL/CARDINAL and of a petition by CARDINAL of the applicant ’s co - accused in case no . ORG CARDINAL . Criticism was also expressed that in the latter case legal conclusions had been drawn in respect of the applicant notwithstanding the fact that he had not been a party to those proceedings .", "In its ORG on ORG in DATE ORG , an independent non - governmental organisation , strongly criticised the decisions of ORG nos . ORG CARDINAL/CARDINAL and ORG for reasons similar to those expressed in the above - mentioned article published by a group of lawyers .", "Amnesty and pardon are the CARDINAL principal forms employed within the general concept of mercy in the Contracting Parties to the Convention .", "As to the distinctions between them , firstly , amnesty is usually referred to as a measure which is impersonal and applies to all persons or to a class of persons , while a pardon concerns a specific individual or a group of individuals . Secondly , while a pardon typically serves to remit a sentence , an amnesty may be granted before criminal proceedings have commenced or at any stage thereafter . Thirdly , while amnesty is usually considered to fall within the realm of the legislature , the power to grant a pardon is seen as CARDINAL of the prerogatives of the head of ORG .", "In certain Contracting Parties the above distinctions between the CARDINAL concepts are not always present or are not clearly indicated , as a result of which , in legal theory , the clemency institutions are considered to have “ hybrid forms ” in relation to the above CARDINAL general notions ( for example , “ generic ” or “ collective ” pardons in GPE and GPE or “ grâce amnistiante ” and “ admission par décret au bénéfice de l’amnistie ” in GPE ) . There is no significant functional difference between the different concepts employed as their common purpose has been to remove the effects or consequences of a completed or pending criminal conviction .", "The powers of heads of ORG in the decision - making process in matters relating to measures of clemency and possible review of such measures depends on the constitutional model adopted by the country concerned .", "In the Contracting Parties to the ORG , there is a general trend towards excluding the executive ’s decisions on pardon from judicial control on account of the discretionary and sui generis nature of such decisions . The Constitutions and other legal norms in GPE do not provide for the possibility of revocation of pardons granted unconditionally .", "In legal theory a variety of views have been expressed . Several authors have argued that pardons are irrevocable on the basis of the classical theory of administrative law , maintaining that an individual administrative decision addressed to a particular person can not be subject to revocation . Other authors have argued that , even though there is no right to a pardon , once it has been granted , such a measure creates rights for the pardoned individual and the sphere of freedom granted by the executive power becomes inalienable . ORG have also been expressed that pardons can be revoked on the limited grounds of error , fraud on the part of the pardoned person , or the existence of concomitant or previous circumstances which were not known by the authority granting the pardon .", "Pardons granted by the executive are generally conceived as atypical discretionary acts , granted in the framework of relations between the branches of power or in the sphere of execution of penalties . As such , they can not be construed as normal administrative measures subject to ordinary judicial review . In spite of the fact that the power to pardon is in principle delimited by the constitutional norms or principles of the rule of law ( such as the necessity of sanctions , legal certainty , protection of public order , separation of powers and equality ) , the possibilities for the judiciary to review or overturn a pardon seem to be very limited in the majority of GPE . The discretionary character of these measures does not , in principle , allow for their revocation .", "With regard to amnesties , their retroactive revocation is generally not allowed , as they are adopted by the legislature and their revocation would be contrary to the principle of legal certainty and to the principle of non - retroactivity of criminal law .", "On DATE ORG of ORG adopted ORG CARDINAL/CARDINAL proclaiming the LAW from Enforced Disappearance as a body of principles for the ORG member GPE . LAW reads :", "“ CARDINAL . Persons who have or are alleged to have committed offences referred to in DATE , paragraph CARDINAL above [ i.e. all acts of enforced disappearance ] , shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction .", "In the exercise of the right of pardon , the extreme seriousness of acts of enforced disappearance shall be taken into account . ”", "In LOC GPE judgment ( Series C No . DATE ] , IACHR CARDINAL , DATE , § CARDINAL ) ORG held :", "“ ... all amnesty provisions , provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible , because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture , extrajudicial , summary or arbitrary execution and forced disappearance , all of them prohibited because they violate non - derogable rights recognized by international human rights law . ”", "In GPE v. GPE ( DATE , § CARDINAL ) ORG held :", "“ ... any other domestic legal obstacle that attempts to impede the investigation and punishment of those responsible for human rights violations are inadmissible ” .", "The Special Court of PERSON has held that the amnesty granted under LAW of DATE does not bar the prosecution of an accused for international crimes within the jurisdiction of that special court ( ORG : cases No . SCSL-CARDINAL - CARDINAL-PT , and No . SCSL-CARDINAL - CARDINAL-PT , CARDINAL March CARDINAL ) ." ]

[ "5" ]

[ "5-1" ]

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[ "By contracts signed in DATE , in respect of donations inter vivos , the applicants became the owners of a number of plots of land on the island of GPE . This island , situated close to the mouth of LOC , is part of the city of GPE , to which it is connected by a road - bridge and a railway line . It mainly consists of port facilities , with a small residential area in its southern part .", "The donors were the heirs of the legitimate owners of the land in question , which had been unlawfully expropriated by GPE after DATE . They had recovered ownership in the context of the “ denationalisation ” process in DATE . According to the applicants’ explanations , not contested by the Government , all the donations had been made in return for certain personal services that the applicants had rendered to the donors . Thus , the second applicant became the owner of CARDINAL plots of land measuring CARDINAL , CARDINAL , CARDINAL and CARDINAL sq.m respectively . The donor of the first plot of land gave it to him by way of remuneration for having helped her to complete the formalities to obtain restitution of her CARDINAL properties located throughout GPE . The donor of the second plot had apparently been a longstanding friend of the second applicant , whilst the other CARDINAL plots were given to him as a token of gratitude because he had covered the cost of expensive heart surgery for the donor . As to the first applicant , he obtained a plot of land measuring CARDINAL sq.m . in return for undisclosed services rendered .", "Each of the above - mentioned contracts stipulated the value of the land in question . The parties agree that the said value was not the cadastral value ( that is to say the reference value for the calculation of land tax ) , but merely an indicative sum solely for the purposes of calculating the registration tax , which at the time represented PERCENT of the property ’s value . The contracting parties thus valued each plot of land at CARDINAL NORP lati ( ORG ; CARDINAL euros ( ORG ) ) , except for that of CARDINAL sq.m . , which was valued at ORG CARDINAL,CARDINAL ( about EUR CARDINAL,CARDINAL ) . In addition , the applicants paid FAC in notary ’s tax . However , they were not obliged to pay income tax , as gifts between individuals were not liable for such tax .", "Shortly afterwards , in DATE , ORG of the city of GPE ( PERSON pilsētas PERSON nodaļa ) entered the applicants in the land register as owners of the plots of land in question . In addition , in accordance with the law applicable at the time ( see paragraph DATE below ) , they were exempted from the payment of land tax ( zemes nodoklis ) for a period of DATE following the acquisition , that is to say until DATE .", "On DATE ORG no . CARDINAL fixing the perimeter of GPE ( GPE par Rīgas ostas robežu noteikšanu ) . In accordance with that ORG , all the plots of land owned by the applicants were included within the port ’s perimeter . That inclusion was confirmed by ORG ( PERSON tirdzniecības brīvostas likums ) , enacted on DATE . Under that LAW , all the privately - owned land situated within the port ’s boundaries became subject to a servitude for the benefit of the public corporation responsible for the port ’s management . In return , the corporation was to pay the owners an DATE compensation of not PERCENT of the cadastral value of the plots of land .", "NORP In DATE the applicants requested ORG of ORG ( ORG dienesta Nekustamā īpašuma vērtēšanas centrs ) to determine the current cadastral value of their respective plots of land . In CARDINAL letters of DATE , the ORG certified that the value amounted to ORG ( QUANTITY ) for Mr PERSON ; as for PERSON , the cadastral value of his plots of land amounted to ORG CARDINAL , CARDINAL , CARDINAL and CARDINAL respectively , representing a total of ORG CARDINAL ( about EUR CARDINAL,CARDINAL,CARDINAL ) .", "On DATE the administration of ORG of GPE applied , in turn , to ORG , requesting it to calculate the amount of compensation that would have to be paid to the applicants in the event of expropriation of their land , in accordance with LAW decision on the arrangements for the entry into force of the law on the expropriation of real estate in the public interest ( the “ LAW ” , enacted in DATE ) . That DATE which was applicable inter alia to the applicants – limited the amount of the compensation to be paid to the owners of certain land that was to be expropriated ; the compensation would not exceed the cadastral value of the land as fixed on DATE , multiplied by a conversion coefficient .", "On DATE the ORG issued CARDINAL certificates stating that the first applicant would receive ORG ( about ORG CARDINAL ) for his CARDINAL sq.m . of land , and the second ORG CARDINAL,CARDINAL.CARDINAL ( QUANTITY ) for his land , of which the total surface area came to CARDINAL sq.m .", "By Regulation no . CARDINAL of CARDINAL DATE , which was adopted in the context of delegated legislative authority ( see paragraph CARDINAL below ) and which entered into force on DATE , ORG ordered the expropriation of all the land in question for the benefit of the ORG . On DATE that measure was confirmed by ORG , which enacted a special law for that purpose ( see paragraph CARDINAL below ) . Under that law Mr PERSON and PERSON were to be paid compensation for the expropriation , which would be deemed completed once the sums had been paid into their current accounts .", "On DATE the NORP ORG ( Latvijas PERSON un zemes banka ) opened current accounts in the names of each of the applicants . On DATE that bank officially certified that the above - mentioned sums of ORG and ORG CARDINAL,CARDINAL.CARDINAL , awarded to the applicants by way of compensation , had actually been paid into the CARDINAL accounts . The applicants , however , refused to make use of those sums in any way . Following the payment , by CARDINAL orders of CARDINAL and DATE ORG ( zemesgrāmatu tiesnesis ) ordered that the title to the expropriated land be registered in the name of the ORG . No tax was levied on the above - mentioned sums .", "In DATE the second applicant brought CARDINAL sets of proceedings to obtain rent arrears for the use of his land . In the first proceedings , against ORG and ORG , he requested the payment of sums due under the lease for the period from CARDINAL DATE to DATE . In a judgment of DATE , upheld in cassation proceedings on DATE , ORG ordered ORG to pay the second applicant ORG ( about ORG CARDINAL,CARDINAL ) for the use of his land during the period in question .", "The second applicant subsequently filed a new claim against FAC seeking the payment of rent arrears for the period after DATE , together with compensation for a servitude imposed on his property . On DATE ORG of ORG partly upheld his claim , awarding the applicant the sum of ORG ( about ORG CARDINAL,CARDINAL ) on that basis , as the rent represented PERCENT of the current cadastral value of the land . In fixing that amount ORG particularly took into account the fact that the second applicant had not invested in any development of the land in question . It further indicated that the applicant ’s title to the property had ceased on DATE , when the expropriation had become effective . In a judgment of CARDINAL DATE the ORG of ORG upheld the judgment of ORG .", "The first applicant , PERSON , brought similar proceedings . In a judgment of DATE ORG ordered ORG to pay him ORG CARDINAL ( QUANTITY ) in rent arrears for DATE .", "In DATE the applicants sued ORG ministrija ) before ORG . In their pleadings they requested the annulment of the cadastral registration of the ORG ’s title , and the restoration , in the land registers , of the previous entries attesting to their ownership of the land in question .", "NORP In support of that claim , the applicants alleged that LAW provided for a uniform procedure : after the enactment of the special law of DATE , ORG was required first to start negotiations with them with a view to reaching a friendly settlement as to the amount of the compensation ( section CARDINAL of LAW ) ; if those negotiations failed , ORG would have to refer the matter to the court of competent jurisdiction for settlement of the dispute ( section CARDINAL ) . That procedure had not been followed in the present case . The applicants particularly emphasised the fact that they were not satisfied about the sums paid by way of compensation and that they were deprived of their right to challenge those sums before a court . In this connection , the applicants pointed out that the orders of ORG had been made in the absence of any prior final judgment concerning the amount of the compensation ; they thus argued that the orders did not comply with CARDINAL of LAW . The applicants submitted that the expropriation in general and the transfer of title in particular had been carried out in breach of that LAW , thus directly entailing a violation of LAW No . CARDINAL .", "In a judgment of CARDINAL DATE ORG dismissed the applicants’ claims . According to the judgment , the expropriation was not based on LAW , as the applicants had claimed : since the measure in question had been decreed in the context of the NORP land reform , the special law of DATE was to be applied . Section CARDINAL of that special law provided for CARDINAL elements – the law itself and the payment of the compensation – which , taken together , formed a statutory basis for the transfer of title to the ORG . As the corresponding sums had been paid into the applicants’ accounts , both of those elements were present , and by registering the ORG as the new owner of the land in question , ORG had acted in accordance with the law .", "NORP Moreover , ORG pointed out that section CARDINAL(CARDINAL ) of the PERSON of DATE on the calculation of compensation referred to LAW decision on the arrangements for the entry into force of LAW ; that decision had been declared compliant with LAW No . CARDINAL by ORG .", "The applicants appealed before ORG of ORG . In their appeal , they emphasised at the outset that they did not object to the expropriation as such , provided that the statutory formalities were observed and the amount of the compensation was reasonable . This had not been the case , however ; in particular , no expert ’s report had been ordered for the purpose of determining the actual value of the disputed land ( section CARDINAL of LAW ) . The applicants did not challenge ORG finding that the PERSON of DATE constituted a lex specialis in relation to the general law ; they argued , however , that the said law could not be interpreted as derogating from the normal expropriation procedure . Consequently , by recognising the ORG ’s title without having received a copy of a judgment determining the amount of the compensation , ORG had acted illegally .", "NORP In a judgment of CARDINAL DATE ORG dismissed the appeal , essentially endorsing the reasoning and findings of the judgment appealed against . Since the applicants had criticised the compensation awarded , it pointed out that the sums had been determined in accordance with LAW above - mentioned ORG decision . If the applicants had considered that the calculation by the ORG ’s ORG had been erroneous and that the relevant coefficients had been incorrectly applied , they could have challenged the calculation in separate proceedings , but had not done so .", "The applicants lodged a cassation appeal before the ORG of ORG . In their appeal , they submitted that the direct and immediate object of their claim was not to challenge the calculation of the compensation as such , but rather the fact that they had not been able to have the sum fixed through fair judicial proceedings , as required by LAW . If such proceedings had taken place , they would have been able to provide the court with evidence of their investments in respect of the land in question . Moreover , the applicants pointed out that they were not entitled to initiate such proceedings themselves , as section LAW reserved that right for the authorities .", "In a judgment of DATE the ORG dismissed the applicant ’s appeal on the same grounds as ORG .", "In the meantime , on CARDINAL DATE , the ORG had granted the use of all the plots of land in question to a private transport company , B. , from which it has been receiving rent to date .", "On DATE ORG of ORG notified the first applicant of a tax re - assessment , requesting him to pay the sum of ORG CARDINAL in land tax in respect of the land in question , plus penalties , for the period from DATE to DATE , the date of the expropriation . The first applicant challenged this before ORG for the district of GPE , which upheld his claim and annulled the re - assessment . ORG appealed before ORG , which , in a judgment of DATE , upheld the annulment of the re - assessment . According to that judgment , the land tax was attached to a plot of land and not to a specific individual ; therefore , it could be paid by someone other than the owner . In that case , to the extent that it was the first applicant ’s land , the tax had already been paid by the public corporation that was responsible for the port ’s management and was using the land on the basis of a servitude . ORG lodged a cassation appeal with the ORG of ORG , which dismissed it in a judgment of DATE .", "As to the second applicant , on DATE ORG of ORG notified him of a tax re - assessment for ORG CARDINAL,CARDINAL , penalties included , for DATE . The applicant brought annulment proceedings before the court of competent jurisdiction , which upheld his claim . ORG appealed and on DATE ORG annulled the judgment of ORG , finding that the second applicant ’s land was not part of that for which the public corporation had paid land tax . That judgment was upheld at cassation level . However , in DATE the ORG of ORG re - opened the proceedings on account of newly discovered facts . The case file was sent to ORG , which , in a judgment of DATE , upheld the second applicant ’s claim and annulled the disputed re - assessment on the ground that the port management company had already paid land tax for the land in question . On DATE the ORG of ORG , ruling on a cassation appeal , upheld that judgment . The second applicant was therefore not obliged to pay any supplementary tax on his land .", "Article CARDINAL of LAW ( PERSON ) provides as follows :", "“ Everyone has a right of property . Property may not be used for purposes contrary to the interests of society . Property rights may be restricted only as provided by law . Forced deprivation of property for the need of society shall be authorised only in exceptional cases , on the basis of a special law and in return for fair compensation . ”", "Article CARDINAL of the LAW ( repealed in DATE ) entrusted ORG with delegated and limited legislative power . At the time of the expropriation of the land in question , this provision read as follows :", "“ CARDINAL legislative sessions , ORG shall be entitled , in cases of pressing need , to adopt regulations with statutory force . Such regulations may not amend either the law on parliamentary elections , the laws on judicial organisation and procedure , LAW or budgetary law , or laws enacted by the sitting legislature ; nor may they regulate amnesty , the issuance of ORG bills , taxes levied by the ORG , ORG , railway fares and loans , and they lapse if they are not submitted to ORG DATE after the opening of the following legislative session . ”", "The first paragraph of CARDINAL of LAW DATE on land reform in the cities of GPE ( NORP “ ORG zemes reformu Latvijas Republikas pilsētās ” ) originally read as follows :", "“ In all ... cases , where the original owner ’s land has [ in the meantime ] been built upon , or where , in accordance with urban planning and construction projects it is intended to erect thereon constructions necessary to satisfy the needs of society , the former owners of the land or their heirs shall be entitled , as they choose :", "to claim restitution of their property title and to obtain from the owner of the building or construction ... the payment of rent , of which the maximum amount shall be fixed by ORG ... ; or", "to request that they be granted the right of ownership or use of another plot of land of the same value , situated within the administrative boundaries of the same town , depending on the type of use projected for the said land ; or", "to receive compensation in accordance with the statutory conditions . ”", "A law of DATE imposed restrictions on the restitution of land on which certain constructions or facilities have been erected . It thus amended the above - mentioned wording as follows :", "“ Former property owners or their heirs shall recover their title to land that previously belonged to them , except :", "...", "( CARDINAL ) Where , on the land of the former owners , there can be found ... facilities or infrastructures of civil engineering and transport ... , [ for example ] of ports . The title to the land is then registered in the name of the ORG or the local authority concerned ; as to the former owners and their heirs , they shall be entitled , as they choose , to request that they be granted title to another plot of land of the same value and situated within the administrative boundaries of the same town , or otherwise to receive compensation in accordance with the statutory conditions . ”", "A law of CARDINAL DATE amended that provision as follows :", "“ Former property owners or their heirs shall recover their title to land that previously belonged to them , except :", "...", "( CARDINAL ) Where , on the land of the former owners , there can be found ... facilities or infrastructures of civil engineering and transport ... , [ for example ] of ports . The title to the land is then registered in the name of the ORG or the local authority concerned , after the former owners or their heirs have , as they choose , and in accordance with the statutory conditions , received land of the same value situated elsewhere ... or [ monetary ] compensation . If it is impossible to reach an agreement with the former owner of the land , or his or her heir , as to the compensation or to the allocation of another plot of land of the same value , the land shall then be expropriated in accordance with the conditions laid down in the law on the expropriation of real estate on public interest grounds . ”", "The law of CARDINAL DATE reformulated the above - mentioned provision , deleting the last sentence concerning the expropriation of land . The next law , which was enacted on DATE and which entered into force on DATE , added to the said paragraph a note that read as follows ( having the same statutory force as the provision itself ) :", "“ Note : Where the former owners of the land or their heirs possess dwellings on the territory of a port , they are entitled to recovery title to that land to the extent that they have the lawful use thereof ; [ the surface area of such land ] must not , however , exceed QUANTITY , except for the residential area of GPE which forms part of the territory of ORG of GPE and where the former owners and their heirs are granted restitution of their title in respect of the entire surface area of the land that belonged to them in the past . ”", "At the same time a new paragraph was inserted into section CARDINAL . It reads as follows :", "“ Where the former owners of the land or their heirs have recovered title to land on which are erected any facilities referred to in point CARDINAL of the first paragraph of the [ present ] section ... , the DATE amount of the rent for the land shall not exceed MONEY of the land ’s cadastral value ” .", "Section CARDINAL(CARDINAL ) of LAW of DATE ( NORP par ostām ) reads as follows :", "“ Restrictions on the restitution of property title , as established by section CARDINAL of the law on land reform in the cities of GPE , shall not apply to land incorporated within the territory of FAC after DATE ... Former owners ( or their heirs ) who , as at DATE , possessed a plot of land situated on the current territory of the port , and whose title to the land has been recognised ... but has not been restituted on account of the statutory restrictions , shall be entitled to receive a plot of land of the same value or to be compensated in the form of property compensation certificates , in accordance with the legal instruments governing land reform . ”", "Regulation no . CARDINAL of CARDINAL DATE on the calculation of compensation to be awarded to former landowners and their heirs , and on the fixing of payments in respect of land of which ownership has been transferred in cities ( GPE par kompensācijas aprēķināšanu bijušajiem zemes īpašniekiem vai viņu mantiniekiem un maksas noteikšanu par īpašumā nodoto zemi pilsētās ) was adopted on the basis of the law on land reform in the cities of GPE . LAW reads :", "“ Where persons claiming compensation are not satisfied with the compensation amount calculated [ by ORG ] , they shall be entitled to submit their complaint to the courts ” .", "At the material time , and up to CARDINAL DATE , measures of expropriation were governed by ORG ( NORP “ ORG nekustamā īpašuma piespiedu atsavināšanu valsts vai sabiedriskajām vajadzībām ” ) , which was first enacted in DATE and which re - entered into force on DATE . The relevant sections of that Act read as follows :", "“ Expropriation of real estate in the public interest shall be authorised only in exceptional cases , always with payment of compensation and on the basis of a special law . ”", "“ The proposal to expropriate ... shall be made by the government on the basis of an opinion by the relevant administrative body or local authority , where the institution in question is unable to acquire the real estate by means of an agreement with the owner . The proposal must include information about the real estate to be expropriated and the justification for the expropriation . ”", "“ After the [ expropriation ] law has been enacted , the institution that proposed the expropriation shall approach the owner with a view to entering into a [ friendly ] agreement for the transfer of the real estate , and , as the institution sees fit , shall either offer compensation or propose to exchange [ the real estate ] for property of the same value . ”", "“ Where compensation is determined by friendly agreement , or where the value of the expropriated real estate is compensated for by exchanging it for other property , the parties shall enter into a contract ... ”", "“ Where [ the parties ] fail to reach an agreement , the case shall be examined by a court upon an application by the institution concerned .", "After receiving the application , the court shall assign a bailiff to assess the value of the real estate , in the presence of the representative of the institution for whose needs the property is to be expropriated , together with the owner and CARDINAL experts chosen by joint agreement between the parties ... ”", "“ The institution by which the expropriation has been proposed shall submit to the court a statement indicating and justifying its assessment of the value of the real estate to be expropriated . Copies of the statement shall be served on the owner of the real estate and to any mortgage creditors of the owner ... ”", "“ The value shall be assessed according to local prices and the specific circumstances of the relevant property . Should the owner so request , the assessment shall also take into account its profitability .", "The profitability of real estate shall be assessed on the basis of information supplied by its owner . In such cases , the price of the real estate is determined by adding MONEY to the average net income from the real estate over DATE , or , where the owner has held it for DATE , over the entire period of possession . ”", "“ Before examining the case , the court shall summon the owner , the representative of the authority having proposed the expropriation and any mortgage creditors .", "The court shall determine the compensation to be paid on the basis of experts’ opinions , either according to local prices or , where the owner so requests and the court finds such request reasonable , according to the profitability [ of the property ] .", "The court ’s decision may be appealed against in accordance with the statutory procedure . ”", "“ After the court ’s decision pertaining to the expropriation of the real estate takes effect , the owner shall be paid the compensation determined and any interest at the rate fixed by the court ; the interest rate shall not be lower than PERCENT per annum from the date of transfer of the property until DATE of payment . ”", "“ After the payment of compensation ... , the institution concerned shall transmit to ORG a copy of the court ’s decision together with a description of the real estate , for the purposes of its registration in the name of the ORG or local authority . ”", "The use of the term “ a special law ” in LAW and in LAW indicates that each individual expropriation measure falls within the exclusive remit of the legislature , that is to say ORG . As ORG observed in its judgment of DATE , this is a specific feature of the NORP legal system in comparison with that of other countries ( see paragraph CARDINAL below ) . In other words , there are always CARDINAL legislative instruments : the general law , determining the rules of expropriation in general , and a special targeted law by which ORG orders the expropriation of designated property in a specific case . As to the sum to be paid in compensation , it is fixed by friendly agreement or , failing that , by the courts ( section CARDINAL of LAW of DATE ) .", "The relevant parts of LAW decision of DATE on the conditions of the entry ( or in reality , the re - entry ) into force of the above - mentioned Act ( PERSON “ Par Latvijas PERSON likuma ‘ ORG nekustamā īpašuma piespiedu atsavināšanu valsts vai sabiedriskajām vajadzībām’ spēkā stāšanās kārtību ” ) , as inserted by the law of DATE , read as follows :", "“ Where , in the course of the land reform , an expropriation ... concerns real estate that is necessary for ... the maintenance and operation of ... transport infrastructures , [ and where the object of the expropriation ] is or must be subject to restitution to the former owner ( or to the heirs thereof ) , the amount of the compensation shall be determined as a sum of money , according to the statutory procedure ; however , it shall not exceed the value of the said real estate as fixed by the land registers or by cadastral records drawn up before DATE and including an indication of the property ’s value . The conversion coefficients to be applied to the value of the property , [ converting ] the prices from DATE ( in pre - war lati ) into current prices ... , shall be determined by ORG .", "Where , after the restitution of title the owner has increased the value of the real estate , any investments related to the increase in value must also give rise to compensation . Similarly , compensation must be paid for any expenses reasonably incurred by the owner ( heir ) related to the restitution of the title ( surveying , obtaining of information from records , etc . ) . Any expenses incurred in respect of the services of a representative must be restituted within the limits of the amounts actually paid ; however , they must not exceed the scales of lawyers’ fees .", "The expropriation procedures laid down by the present Article shall apply also to owners who have acquired property from the former owner ( or heirs thereof ) by way of donation . ”", "Regulation no . CARDINAL of CARDINAL DATE on the expropriation of land for the needs of the ORG within ORG of Riga was promptly submitted to ORG , as required by LAW as then in force . On DATE ORG enacted the law on expropriation for the needs of the State of land within ORG of Riga ( NORP “ ORG zemes īpašuma atsavināšanu valsts vajadzībām PERSON tirdzniecības brīvostas teritorijā ” ) , which used almost the exact wording of the Regulation . The law reads as follows :", "“ The expropriation , for the needs of the ORG , shall concern land within the territory of ORG of Riga , on ORG , along the bank of the GPE , belonging to :", "( CARDINAL ) Mr PERSON :", "( a ) for a surface area of QUANTITY ... ,", "( b ) for a surface area of QUANTITY ... ,", "( c ) for a surface area of QUANTITY ... ,", "( d ) for a surface area of QUANTITY ... ;", "( CARDINAL ) Mr NORP Vistiņš – for a surface area of QUANTITY ... ”", "“ ORG shall be responsible for having the land referred to in section CARDINAL hereof ... entered in the land register in the name of the ORG , represented by ORG . ”", "“ CARDINAL A current account shall be opened with the public corporation Latvijas PERSON un zemes banka [ NORP ORG ] in the name of each of the landowners referred to in section CARDINAL hereof ; the compensation sums shall be paid into such accounts in accordance with LAW decision on the conditions of the entry into force of ORG .", "CARDINAL The number of the current account shall be notified , by registered letter , to each of the beneficiaries of the compensation payment . ”", "“ The land referred to herein shall be entered in the land register in the name of the ORG on the basis of the present LAW and having regard to the confirmation from the Latvijas PERSON un zemes banka that the sums determined as compensation for the value of the properties have [ effectively ] been paid into the accounts of the persons mentioned in DATE hereof . ”", "The law of CARDINAL DATE on the expropriation of land for the needs of the ORG within the territory of the “ GPE ” State airport corporation ( Likums “ ORG zemes īpašumu atsavināšanu valsts vajadzībām valsts lidostu uzņēmuma ‘ Rīga’ teritorijā ” ) is almost identical in structure to that of the law mentioned previously . Sections CARDINAL and CARDINAL order the expropriation of the specific plots of land enumerated in the annexes to the law . LAW requires ORG to have the ORG ’s title entered in the land register , while the last CARDINAL sections concern the conditions of payment of the compensation and the effective transfer of title .", "To the extent that it is relevant to the present case , section CARDINAL of the law of CARDINAL DATE on FAC ( PERSON tirdzniecības brīvostas likums ) provided as follows :", "“ ( CARDINAL ) There shall be established hereby a personal servitude for the benefit of the public corporation ‘ Commercial Port of Riga’ , affecting the land of natural and legal persons ... that is occupied by FAC .", "...", "( CARDINAL ) The user of the land shall pay to its owner compensation for the use of the servitude ; the amount of that compensation shall be determined by joint agreement , but it may not exceed MONEY per annum of the cadastral value of the land . ”", "... ”", "On DATE ORG enacted a new law pertaining to ORG ( PERSON brīvostas likums ) . It entered into force on DATE , superseding the previous one . LAW ) of this new law is identical to section CARDINAL(CARDINAL ) of the previous law .", "Under Article CARDINAL , first paragraph , of LAW ( Civillikums ) , “ [ o]nly the person who is recorded in the land register as owner of real estate shall be recognised as such ” . However , LAW , second paragraph , stipulates that “ [ r]ights in rem based on a law shall be effective even in the absence of an entry in the land registers ” .", "In a judgment of DATE given in case no . CARDINAL - CARDINAL(CARDINAL ) , ORG declared LAW decision on the conditions of entry into force of LAW ( paragraph CARDINAL above ) compliant with LAW No . CARDINAL . It observed , in particular , as follows :", "“ ... CARDINAL . The second and fourth paragraphs of LAW decision do not deprive owners whose property has been expropriated in the public interest of their right to apply to the courts for a review of the determination of compensation . The second paragraph of LAW decision only establishes the upper limit of such compensation . Therefore , the argument ... that such persons are deprived of their right to judicial protection and to equality before the courts is unfounded . ... ”", "In a judgment of DATE , given in case no . DATE - CARDINAL - CARDINAL , ORG declared unconstitutional , null and void , the amendments to LAW in DATE . The relevant parts of that judgment read as follow :", "“ ... ( CARDINAL ) ...", "( CARDINAL - CARDINAL ) The fourth sentence of LAW provides that forced deprivation of property shall be allowed only in exceptional cases on the basis of a ‘ special law’ .", "Expropriation not only on the basis of a law but ‘ on the basis of a special law’ is to a certain extent a specific feature of LAW . Most Constitutions of European States envisage only that expropriation must be carried out on the basis of a law or in accordance with a procedure established by law .", "The aim of LAW , pertaining to expropriation on the basis of a special law , is to protect the fundamental rights of the individual against any arbitrariness on the part of the administrative authorities . The word ‘ specific’ here must not only be interpreted literally and grammatically , but must primarily be given a substantive meaning . When enacting such a ‘ specific’‘exceptional case’ and whether it serves the needs of ORG or society ; it must also ensure that the expropriation gives rise to fair compensation .", "... ”", "Under LAW , first paragraph , of the law of DATE on land tax ( NORP “ ORG zemes nodokli ” ) , as in force at the material time , a person acquiring land was exempt from the payment of land tax for DATE from the date of acquisition ." ]

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[ "14", "P1" ]

[ "P1-1" ]

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[ "The applicants teach as temporary staff at the polytechnic school in GPE ( PERSON ) on the basis of private - law contracts . On DATE they sued their employer for a supplement to their salary , as research allowance ( ερευνητική χορηγία - hereinafter “ the benefit ” ) , that had been granted by ministerial decision no . CARDINAL to “ those teaching at polytechnics ” . They served their action ( επίδοση αγωγής ) to the school on DATE .", "The applicants relied on a number of decisions by ORG in GPE granting the benefit in question to academic staff of the polytechnic school with the applicants’ status . Their action was CARDINAL of several actions pending before the LOC courts at the time .", "On DATE the single - member first instance civil court ( GPE Πρωτοδικείο ) of GPE considered that the applicants were entitled to the benefit . It awarded GRD CARDINAL to applicant no . CARDINAL , GRD CARDINAL to each of applicants nos . CARDINAL - CARDINAL , GRD CARDINAL to each of applicants nos . CARDINAL and DATE , GRD CARDINAL to each of applicants nos . CARDINAL , GRD CARDINAL to each of applicants nos . CARDINAL - CARDINAL , GRD CARDINAL to each of applicants nos . CARDINAL and GRD CARDINAL to applicant no . CARDINAL . The court also held that the applicants should be awarded legal interest on the abovementioned sums from the date when they served their action to the school , namely from DATE .", "On DATE the school appealed .", "NORP On DATE ORG enacted Law no . DATE . Article CARDINAL § CARDINAL of that law provided the following : the ministerial decision of DATE , according to its true meaning , concerned only permanent staff ; any claims that had not been recognised by final decisions were statute - barred ; all pending court cases were discontinued .", "On DATE ORG of GPE upheld the school ’s appeal ( decision no . CARDINAL ) . The court considered that LAW no . CARDINAL “ is truly interpretative and has retroactive effect ( Article CARDINAL § CARDINAL of the LAW ) ” , and that “ it clearly results from these provisions that the temporary staff of the polytechnic schools are not entitled to the benefit provided for by the ministerial decision [ of DATE ] ” . The court continued :", "“ Moreover ... Articles DATE and CARDINAL of the LAW ... provide for equal pay for work of equal value rendered ... However , the principle of non - discrimination ... is relented when the differentiation in the pay for work of equal value is imposed by reasons of general public and social interest . Such a reason , which justifies the fixing by the legislator of a different pay among employees who render ... the same work , exists when the ones work on the basis of public law contracts and the others on the basis of private law contracts , i.e. when each group belongs to a different category , ruled by a different legal status entailing different ... rights and obligations . Therefore the judgment under appeal which ... considered that [ the applicants ] as temporary staff of the school ... working on the basis of private law contracts , are entitled to receive the benefit ... was wrong and did not interpret correctly the law , which was in fact interpreted by the ensuing ( truly ) interpretative PERSON no . DATE , and thus the doubt which was created due to its ambiguity has been removed . In view of the fact that by virtue of that law the benefit is given only to permanent staff and not to temporary staff ... like [ the applicants ] , the constitutional principle of equal pay for work of equal value is not violated , given that this deviation is imposed by the general public and social interest , because a full equation of the pay of these different categories of working people would overrule the basic principle of free negotiation of the employment conditions in the public sector ... ”", "On DATE the applicants appealed in cassation relying , inter alia , on Article CARDINAL § CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL .", "On DATE ORG considered that the DATE law simply interpreted the DATE ministerial decision , did not have the purpose of resolving the litigation and did not interfere with the applicants’ rights under LAW . It rejected their appeal ( decision no . CARDINAL ) .", "The relevant provisions of LAW read as follows :", "“ The authentic interpretation of the laws shall rest with the legislative power . ”", "“ The courts shall be bound not to apply laws , the contents of which are contrary to LAW .", "ORG ( ORG ) of GPE in its decisions ORG . CARDINAL/CARDINAL , CARDINAL/CARDINAL and DATE considered that the benefit provided for by the ministerial decision of DATE concerned both permanent and temporary staff . The same line was followed by the single - member firstinstance civil court of GPE in decisions ORG . DATE , CARDINAL/CARDINAL , CARDINAL/CARDINAL and ORG , the single - member first - instance civil court of ORG in decision no . CARDINAL , the single - member first - instance civil court of PERSON in decision no . CARDINAL/CARDINAL , the multi - member first instance civil court ( PERSON ) of GPE in decision no . CARDINAL/CARDINAL , ORG in decision no . CARDINAL/CARDINAL , and ORG of GPE in decisions ORG . CARDINAL/CARDINAL and ORG .", "Law no . DATE provides the following :", "“ a ) The true meaning of the provisions of paragraphs CARDINAL and CARDINAL of Article CARDINAL of decision no . CARDINAL is that the benefit ... is paid only ... to the permanent staff of the schools ...", "b ) Any claims relating to the payment of such benefit also to the temporary staff ... shall be extinguished unless for cases in which , at the time of the publication of this law , a final judgment ( αμετάκλητη δικαστική απόφαση ) has been issued . Any claims pending in any court for the payment of such benefit shall be struck out ... ”", "The single - member first - instance civil court of GPE , in its decisions ORG . CARDINAL/CARDINAL and DATE , considered that LAW no . DATE was clearly unconstitutional as it violated the principle of equality . Therefore it refused to apply it and allowed the ORG claims . The same line was followed by ORG in decisions ORG . FAC and CARDINAL ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "The ORG owns PERCENT of the share capital in the company ORG DATE ( “ the company ” ) , which is therefore subject to the moratorium on the forced sale of property of entities in which the ORG holds PERCENT of the share capital , barring the attachment and sale of its assets .", "On DATE ORG started insolvency proceedings against the company .", "On DATE the ORG ordered the company to pay the applicant CARDINAL NORP hryvnas ( ORG ) in salary arrears and compensation . The amount represented the salary due to the applicant after deduction of income tax . The judgment became final , but remains only partially enforced , the outstanding debt being ORG CARDINAL,CARDINAL.CARDINAL ." ]

[ "6", "P1" ]

[ "P1-1" ]

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[ "The first applicant , PERSON , was born in DATE . The second applicant , her husband Mr PERSON , was born in DATE . They are both NORP nationals and live in GPE .", "NORP In DATE the first applicant bought a portion ( CARDINAL/CARDINAL ) of a plot of land at CARDINAL FAC and CARDINAL FAC in GPE . In DATE the subplot was registered in her name in ORG .", "It appears from a letter from the authorities of CARDINAL DATE to the ORG neighbour , FAC , that on DATE the GPE territorial planning authorities issued an administrative - law penalty notice against the first applicant on the ground that she was pursuing construction works inside a warehouse ( ūkinio pastato viduje ) built on the above - mentioned plot of land and was disregarding the orders of the official supervising construction works . The Government state that to their knowledge that decision has not been quashed . On DATE the first applicant was again ordered to stop the building works as she had no permit to carry them out .", "On DATE the GPE region territorial planning authorities issued an administrative - law penalty notice on the ground that the first applicant had unlawfully reconstructed a house situated at CARDINAL FAC and QUANTITY FAC in GPE . The first applicant was fined CARDINAL NORP litai ( LTL ) . On DATE the administrative court quashed the decision , on the procedural ground that the penalty notice of CARDINAL DATE had been issued in the absence of the first applicant . The case was returned to the territorial planning authorities . On DATE the authorities issued a repeat penalty notice about the unlawfully reconstructed house . This time the applicants’ daughter was present and signed the document . She told the authorities that they could not enter the house because she had no keys to it . The first applicant was fined in the same amount , LTL CARDINAL,CARDINAL .", "By a decision of CARDINAL DATE ORG quashed the decision of DATE due to procedural flaws . The court considered that the first applicant ’s offence was of a continuous nature , and that it was therefore necessary to establish the date on which the offence had become known , because a fine under LAW could be imposed only within DATE date the violation became known . The territorial planning authority appealed .", "On DATE ORG allowed the appeal in part and returned the case for new examination due to procedural flaws . The court noted however that the legal qualification of the first applicant ’s actions was not questioned in that case .", "By a decision of DATE ORG found that the date on which the administrative violation by the first applicant had come to light was DATE . Given that the fine on the first applicant was imposed only on DATE , DATE had passed since that violation surfaced , and therefore no administrative punishment was possible . The case was discontinued .", "In DATE the first applicant asked the GPE territorial planning authority to approve the house in question , built on the plot of land belonging to both applicants , as fit for habitation . The authorities informed her , however , that there were certain deficiencies in respect of the arbitrarily reconstructed house . Moreover , after those deficiencies had been eliminated the second applicant was also obliged to obtain approval in relation to the building from their neighbour Č.P.", "NORP The GPE neighbour GPE had sued the second applicant in civil proceedings for pecuniary damage , on the ground that on DATE the second applicant had arbitrarily and unlawfully demolished FAC ’s fence . In that connection the municipal authorities had earlier found the second applicant guilty of a violation of administrative law . Their decision was upheld by administrative courts at CARDINAL levels of jurisdiction . By a decision of DATE GPE allowed GPE ’s civil claim in full .", "On DATE the territorial planning authorities gave the first applicant an administrative warning , because she had unlawfully built a wall on ORG land and had refused to demolish it . This conclusion was confirmed by GPE on DATE .", "Further , on DATE the applicants’ neighbours GPE , GPE , GPE and GPE addressed a written complaint to them . The neighbours stated that for DATE the applicants had been ignoring the law , had lied , and had used corrupt connections when managing their property . They also submitted that the second applicant had used his position as a GPE elder for his personal proprietary interests , instead of trying to keep an untarnished reputation . The neighbours gave a detailed list of the applicants’ misdemeanours as confirmed by the authorities’ decisions , where it had been mentioned that the applicants’ house was too large , and that they had unlawfully occupied certain parts of a plot of land belonging to neighbours GPE and GPE , and had also occupied ORG land . The neighbours expressed the wish , however , that in future all the neighbours would be able to live in peace , and that the applicants would abide by the law . The Government state that later on a copy of this note was given to a journalist .", "On DATE the first applicant was informed by the authorities that some parts of her house were outside the boundaries of the plot of land at CARDINAL FAC and CARDINAL FAC in GPE and were on land belonging to the State . She was reminded that arbitrary occupation and use of State land entailed administrative liability . On DATE a penalty notice for an administrative offence was issued to the first applicant for arbitrary occupation of ORG land . However , by a ruling of DATE the court found that the boundaries between the applicants’ land and the ORG land had been established only after those parts of the house had been built , and that therefore the first applicant could not be held liable for the offence .", "In DATE the first applicant brought court proceedings against her neighbour GPE , claiming that in DATE he had built a brick wall between her plot of land and his , and that that wall encroached on her plot by QUANTITY and thus breached her property rights . Her civil claim was dismissed as unfounded by both the first - instance and the appellate courts . On DATE ORG terminated the proceedings , upholding the lower courts’ conclusions .", "On DATE the DATE newspaper PERSON published an article covering the applicants’ boundary disputes with FAC and the other neighbours . The article mentioned that DATE the second applicant had been elected elder of GPE centre ( FAC miesto centro seniūnas ) . The article alleged that the applicants were illegally building on their plot of land and had occupied part of the land belonging to the other owners and the ORG . The relevant passages of the article stated as follows :", "“ The elder was occupying the ORG land [ GPE užėmė kaimynų žemę ] ;", "Elected GPE centre elder DATE , PERSON has been building illegally on his plot after occupying land belonging to his neighbours and the ORG , and is not complying with prohibitions by various institutions on rebuilding the derelict dwelling house situated in his yard [ ORG miesto GPE seniūnu išrinktas PERSON , pažeisdamas įstatymus , savo sklype vykdo savavališkas statybas , ORG užėmęs valstybinę ir kaimynams priklausančią žemę , nepaiso įvairių institucijų draudimo rekonstruoti apleistą gyvenamąjį namą , stovintį kieme ] ;", "When going through the process of acquiring the land in DATE , [ Mr and PERSON ] LOC enlarged their plot at the expense of the neighbours and the State – the entrance to GPE ’s yard was narrowed and the roof of [ the applicants’ ] house overhung PERSON ’s outhouse [ DATE ORG tvarkydami žemės įgijimo dokumentus , MONEY teritoriją kaimynų ir valstybinės žemės sąskaita – susiaurėjo GPE įvažiavimas į kiemą , o virš nedidelio ORG namuko pakibo ORG namo stogas ] ;", "The residential dwelling section of the city ’s housing department ordered Pauliukai [ reference to both applicants ] either to submit a reconstruction project or to demolish the building by DATE However , PERSON did not comply with the order , and continued to build a new house inside the old one without permission [ GPE ūkio departamento būsto skyrius įpareigojo GPE iki gegužės CARDINAL parengti statinio kapitalinio remonto projektą CARDINAL jį nugriauti . PERSON , NORP nurodymo nepaisė ir senojo pastato viduje , neturėdami tam leidimų , ėmė statyti naują namą ] ;", "PERSON has worked as deputy director of ORG , an enterprise belonging to ORG [ V.Pauliukas ORG dirbęs ORG koncernui priklausančiame “ GPE ” direktoriaus pavaduotoju ] ;", "Despite several notices [ warning them ] not to proceed with the illegal building work , PERSON have disregarded letters from various institutions and have continued with the works [ Nors Pauliukai buvo kelis kartus įspėti nevykdyti savavališkų statybų , PERSON įvairių tarnybų raštų nepaiso ir toliau atlieka darbus ] . ”", "After the article was published , on DATE the second applicant asked the newspaper to correct the part of the article he considered to be erroneous and damaging to his reputation as a GPE centre elder . He was also dissatisfied at being linked to the ORG , owned by the ORG group of companies , which was at that time under criminal investigation for bringing Inkaras to insolvency . As the newspaper did not comply with this request , he then brought a claim in the civil courts , seeking rectification of the article and compensation for non - pecuniary damage . The third party in the civil proceedings , the applicants’ neighbour GPE , told the court that the article did not contain any untruths , and suggested that the civil claim be dismissed .", "On DATE the GPE City Second ORG dismissed the second applicant ’s claim . The court took into account that when preparing the publication the journalist had talked to the applicants’ neighbours , examined documents , telephoned the second applicant and had regard to his opinion . The court pointed out that , in accordance with LAW , the press could be held liable for defamation if it knew that information it published did not correspond to reality , that is if it acted in bad faith . However , in some circumstances the media had a right to trust certain sources of information ( for example , an official police report or a document by other municipal or ORG authorities ) . In such cases the media were exempt from the obligation to verify the accuracy of that information . On this point the court noted that the applicants’ neighbours had repeatedly addressed complaints to ORG and municipal institutions about the applicants’ housing projects . Those complaints had been investigated by the authorities and official replies had been received . For the court , the case file showed that both of the applicants had been held liable under administrative law for rebuilding the house without a permit and for unlawfully occupying ORG land . Conversely , the applicants’ neighbours had been honest when they addressed the ORG and municipal institutions , because , as the replies from those institutions indicated , their accusations in respect of the applicants had proved to be true . These were precisely those written replies that were given to the journalist when she was preparing the publication . Given that they were official documents , the journalist had a right to trust their content .", "The district court also noted that the first applicant had been named in the article as the owner of the plot of land in question . Given that no evidence had been submitted to the court to the effect that the property had been divided between the CARDINAL applicants , the presumption that the plot of land was joint property of the CARDINAL applicants as spouses was a valid CARDINAL . This explained why the article mentioned not only the first applicant but also the second applicant . It was also noteworthy that in the civil court the second applicant had acknowledged that the authorities had ordered a halt to construction on the plot of land belonging to his wife , but argued that they had obeyed the order . However , from the letter of CARDINAL DATE ( see paragraph CARDINAL above ) it was clear that the reference in the article to administrative sanction was correct . As regards the second applicant ’s prior work at GPE , he himself admitted that he had worked at the Inkaras factory as head of a production unit ( cecho viršininkas ) . Accordingly , the second applicant had failed to prove that his dignity had been insulted because of the published reference to his position at GPE .", "The GPE City Second ORG next observed that defamation meant publication of material which did not correspond to reality and which in the light of law and moral and customary norms damaged a person ’s honour , dignity or reputation in society . It indicated further that the insulting nature of the material published did not have to be proven if the words or combination of words used were manifestly insulting . The court concluded that the publication at issue did not contain such language . Next , the court noted that in defamation cases the court had to examine the construction of the sentence as well as the whole context of the publication in order to find out the exact meaning of the word or combination of words . The court concluded that the second applicant had indicated only separate sentences but had not had regard to the whole content of the publication .", "By a ruling of CARDINAL DATE , ORG allowed the second applicant ’s claim in part and ordered the DATE to print a rectification . Specifically , the documents from ORG showed that the owner of the house and of the plot of land was the first applicant . Consequently , the published material did not correspond to reality , because the evidence of inappropriate use of the property had been linked to the first applicant but not to the second . Similarly , as regards the second applicant ’s former post at GPE , which belonged to the ORG group , that statement was misleading , because the second applicant had in fact worked as a director at a [ subsidiary ] enterprise , PERSON padai , which he did not deny . The appellate court thus concluded that naming the second applicant separately and together with the first applicant as persons who had broken the law , and linking those breaches of the law to the first applicant ’s employment , as well as stating that in DATE second applicant had had links to the ORG group , was damaging to his authority as a public figure . The court considered that the journalist had deliberately ignored her obligation to provide information that was fair , accurate and impartial , in breach of LAW to the Public .", "On DATE ORG took a final decision in the case . The court indicated that LAW of LAW guaranteed the right to freedom of expression . Nevertheless , that right was not an absolute one , and had to be exercised taking into account the rights of others as well as the interests of society . Furthermore , ORG CARDINAL and CARDINAL of the PERSON on the Provision of Information to the Public obliged the media to present information correctly , without bias and in compliance with the requirements of journalistic ethics .", "As regards the the publication at issue described a situation in which there was conflict among CARDINAL co - owners of the plot of land over the boundaries of that plot , the applicants’ illegal construction and their unlawful occupation of the ORG and ORG land . It was clear from the content of the applicants’ ORG complaints to various institutions and the replies they had received that those neighbours were trying to protect their rights which had been breached , and also to make sure that the second applicant , who was a public figure , abided by the law . The neighbours , acting in good faith , gave copies of those complaints and replies to the journalist , who in turn wrote an article on the subject . The first - instance court was correct to find that the official replies from municipal and ORG institutions , which referred to violations of law committed by both applicants in that they had reconstructed the house without a permit and had also occupied ORG - owned land and demolished part of a neighbour ’s wall , among others , were a sufficient basis for publication of information about a public figure , the second applicant , who had been elected GPE centre elder .", "ORG also emphasised that the mere fact that the second applicant was not mentioned in the replies from the municipal authorities did not confirm that the violations could not be linked to him . Despite the fact that the plot of land and the house where both applicants lived were registered in the first applicant ’s name , that property had been acquired during their marriage . Accordingly , this was their joint property which they had equal rights to manage and use , in accordance with LAW of LAW . Moreover , in the event that a co - owner of the property of a public figure exercised their co - ownership rights inappropriately , the public figure ( in this case the second applicant ) had a duty to control his co - owner ’s actions and to prevent violations of the law , as in this case . For ORG , if a co - owner exercising the joint property rights of both spouses violated the pecuniary and non - pecuniary rights of other persons , the other co - owner incurred liability as well , the more so if that other co - owner was a public figure . Having regard to the above arguments , ORG concluded that the appellate court had wrongly interpreted LAW to the Public and erred in finding that the journalist had deliberately violated that law by breaching her responsibility to present correct , precise and impartial information . ORG concluded that those errors made the decision of the appellate court invalid . The decision of the first - instance court was upheld .", "Article CARDINAL of LAW provides that the private life of a person is inviolable . Information concerning private life may be collected only in accordance with the law , which protects everyone from arbitrary and unlawful interference and from encroachment upon his or her honour or dignity . Article CARDINAL provides for a right to seek and impart information . This right may not be limited unless it is necessary to do so to protect a person ’s private life or dignity .", "As regards the right to privacy and protection of honour and dignity , the Civil Code reads as follows :", "“ CARDINAL . The privacy of a natural person shall be inviolable . Information on a person ’s private life may be made public only with his consent ...", "Establishment of a file on another person ’s private life in violation of law shall be prohibited . A person may not be denied access to the information contained in the file except as otherwise provided by the law . Dissemination of information on a person ’s private life shall be prohibited unless , taking into consideration the person ’s official position and his status in society , dissemination of the said information is in line with a lawful and well - grounded public interest in having the said information .", "Publication of matters related to a person ’s private life , however truthful they may be , as well as making private correspondence public in violation of the procedure prescribed in DATE and CARDINAL of the given Article , and invasion of a person ’s dwelling without his consent except as otherwise provided by the law , keeping his private life under observation or gathering information about him in violation of law as well as other unlawful acts , infringing the right to privacy , shall all form the basis for bringing an action for compensation for pecuniary and non - pecuniary damage incurred by the said acts ... ”", "“ CARDINAL . A person shall have the right to demand the refutation , in judicial proceedings , of publicised data which abase his honour and dignity and which are erroneous , as well as redress for pecuniary and non - pecuniary damage incurred by the placing in the public domain of the said data ... Data which have been made public shall be presumed to be erroneous unless the publisher proves the opposite to be true .", "Where erroneous data have been publicised by mass media ( including the press , television and radio ) the person who is the subject of the publication shall have the right to provide a refutation and demand that the media outlet concerned publish the said refutation free of charge or make it public in some other way ...", "A request for redress for property , pecuniary or non - pecuniary damage shall be investigated by the court , irrespective of whether or not those responsible for the dissemination of those data have refuted them .", "Where a media outlet refuses to publish a refutation or make it public in some other way , or fails to do so within the term provided in paragraph CARDINAL of the given LAW , the person concerned thereby acquires the right to apply to court in accordance with the procedure established in paragraph CARDINAL of the given LAW . The court shall establish the procedure and the term for the refutation of data which were erroneous or abased the person ’s reputation .", "Media outlets which publicise erroneous data abasing a person ’s reputation shall provide redress for damage to property , pecuniary and non - pecuniary damage incurred only in cases when it knew or should have known that the data were erroneous , as well as in cases when the data have been made public by its employees or anonymously and the media outlet refuses to name the person who supplied the said data .", "A person who places erroneous data in the public domain shall be exempted from civil liability in cases when the publicised data relates to a public figure and his ORG or public activities , and the person who has placed them in the public domain can show that his actions were in good faith and meant to introduce the person and his activities to the public ... ”", "The relevant parts of the PERSON on the Provision of Information to the Public read as follows :", "“ CARDINAL . In GPE freedom of information is enshrined in the LAW , this and other laws , and international treaties of GPE .", "Producers and disseminators of public information as well as journalists shall be governed in their activities by the LAW and laws , international treaties of GPE , also by the principles of humanism , equality , tolerance , and respect for an individual person ; they shall respect freedoms of speech , creativity , religion , and conscience , variety of opinion , adhere to the norms of professional ethics of journalists , support the development of democracy and public openness , promote civil society and ORG progress , enhance ORG independence , and develop national culture and morality .", "Public information must be presented in the media fairly , accurately and in an unbiased manner .", "The use of freedom of information may be restricted by the requirements , conditions , restrictions or penalties set out in the laws and necessary in a NORP society to protect GPE ’s ORG security , its territorial integrity , public order and constitutional system , to guarantee the impartiality of its judicial authority in order to prevent law violations and crimes , disclosure of confidential information and protect people ’s health and morality as well as their privacy , dignity and rights .", "Persons shall be held accountable for violating the freedom of information and statutory restrictions on the use of freedom of information in accordance with the procedure established by this and other laws . ”", "“ CARDINAL . Every person shall have the right to freely express his ideas and convictions . This right encompasses freedom to maintain CARDINAL ’s opinion , to seek , receive and disseminate information and ideas in accordance with the conditions and procedure set out in the laws ... ”", "“ CARDINAL . When producing and disseminating public information , a person ’s right to have his personal and family life respected must be ensured .", "Information about a person ’s private life may be published only with the consent of that person , except for the cases specified in paragraph CARDINAL of this LAW and if the publication of such information does not cause harm to that person .", "Information concerning private life may be published without a person ’s consent in cases where the publication of such information helps to reveal violations of law or criminal acts , also where such information is presented in open court . Furthermore , information about the private life of a public figure ( ORG political figures , public servants , heads of political parties and public organisations , as well as other persons participating in public or political activities ) may be made public without his consent where such information discloses the circumstances of the aforementioned person ’s private life or his personal characteristics which are of public significance ... ”", "“ ...", "It shall be prohibited to disseminate disinformation and information which is slanderous and offensive to a person or degrades human dignity and honour ... ”", "The Law on Civil Service provides that the civil service is based on the principles of rule of law , transparency and responsibility for the decisions taken . CARDINAL of the basic principles of conduct for civil servants is exemplariness : he or she must duly perform his or her duties and be of irreproachable reputation , respectful and orderly ( Article CARDINAL ) .", "The Law on Local Government provides that the neighbourhood ( seniūnija ) is a structural territorial unit of a municipality . The neighbourhood is headed by the elder ( seniūnas ) , who is appointed by the director of the municipal administration in accordance with ORG . The elder carries out internal management of the neighbourhood ( Articles DATE ) .", "On DATE ORG adopted a ruling concerning ORG practice in civil cases concerning protection of honour and dignity ( PERSON praktika , DATE , PERSON . CARDINAL ) . The court ruled that a person ’s privacy and his or her honour and dignity should be protected when it is established that information about him has been disseminated without his consent and in the absence of lawful public interest . When assessing non - pecuniary damage caused it was important to take into account such criteria as the form and the manner of dissemination , the guilt of the defendant , and the content of the information .", "LAW ir šeimos kodeksas ) provided that property obtained by spouses during their marriage was their common and joint property . They had equal rights to manage and use that property . Even if the property had been registered in the name of one of the spouses , it was considered to belong to both spouses .", "Article CARDINAL of LAW , acceded by GPE on DATE , provides that no one shall be subjected to arbitrary or unlawful interference with his privacy , nor to unlawful attacks on his honour and reputation . Everyone has the right to the protection of the law against such interference or attacks ." ]

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[ "8" ]

[ "8-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant instituted a labour dispute before ORG seeking the annulment of the decisions of DATE and DATE whereby her contract had been terminated due to her unauthorised absence from work .", "On DATE the first - instance court delivered a judgment rejecting her request . She appealed .", "On DATE ORG upheld the appeal and remitted the case for re - examination . The appeal court found that the facts had not been properly established and that as a consequence the application of the law was also questionable .", "On DATE the first - instance court rejected the applicant ’s claim . She appealed .", "On DATE the appeal was rejected . The applicant lodged an appeal on points of law .", "On DATE ORG rejected the appeal . The applicant lodged a constitutional appeal .", "On DATE ORG rejected the appeal .", "On DATE the applicant instituted proceedings before ORG seeking payment of benefits .", "On DATE the first - instance court delivered a judgment upholding her request in part . An appeal was lodged .", "On DATE ORG remitted the case for re - examination .", "On DATE the first - instance court rendered a judgment . An appeal was lodged .", "On DATE the appeal was rejected and on DATE the appeal on points of law was rejected . The applicant lodged a constitutional appeal", "On DATE ORG rejected the appeal as being lodged out of time .", "For relevant domestic law see PERSON v. GPE ( no . CARDINAL ,", "DATE ) ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE . At present he is detained in ORG prison in GPE .", "The applicant left GPE for GPE in DATE . He subsequently spent time in GPE , GPE , GPE , GPE and GPE . In DATE the applicant arrived in GPE where he applied for asylum . His request was dismissed .", "On DATE the applicant was placed in custody in GPE as a result of several accusations made against him in different countries . The only one that was pursued was that of “ association de malfaiteurs ” . It was imputed to the applicant that , when living in GPE , he had been involved in the supply of false documents which had been used by individuals in GPE when they had fled arrest for offences committed there .", "GPE extradited the applicant to GPE . On DATE he was found guilty by a NORP court of involvement , as a member of an organised group , in the preparation , DATE , of a terrorist act in GPE and several other countries and of forging identity documents . He received a DATE sentence and was excluded from the territory of GPE . The applicant did not appeal and was released immediately upon conviction on the ground that he had served the sentence in the context of his prior detention while awaiting extradition . On DATE the applicant arrived in GPE .", "In the meantime , on DATE , an NORP court had convicted the applicant , in absentia , of membership of a terrorist organisation acting both in GPE and abroad , and of forgery . He was sentenced to life imprisonment .", "In DATE the applicant married a NORP national in GPE . A child was born to the couple on DATE .", "With effect from DATE the applicant ’s wife was deprived of legal capacity to act . The child was entrusted to the care and custody of the applicant ’s wife ’s mother . On CARDINAL DATE the latter , acting as guardian of her daughter , petitioned for divorce . The divorce proceedings are pending before ORG ; it is not clear from the parties’ submissions whether a final decision has been given .", "On DATE ORG dismissed the applicant ’s first asylum request . ORG dismissed the applicant ’s action challenging that decision .", "On DATE ORG dismissed his second request for asylum . It held that there were no obstacles to the administrative expulsion of the applicant to GPE . On DATE the applicant ’s lawyer waived the right to challenge that administrative decision . It thus became final on that date .", "On DATE ORG dismissed the applicant ’s third request for asylum . It further decided not to afford the applicant the status of “ subsidiary protection ” ( doplnková ochrana ) under LAW .", "On DATE the ORG quashed that decision . It ordered the administrative authority to establish all the relevant facts and to give comprehensive reasons for its conclusion .", "On DATE ORG again decided not to grant asylum to the applicant and not to provide him with subsidiary protection under LAW .", "It was found that the applicant ’s fears were subjective in nature and unsubstantiated by objective facts , that he had failed to show that he was subjected to persecution and that such persecution was politically motivated . If returned to GPE , the applicant could seek a retrial on the ground that he had already been convicted in GPE and had served the sentence imposed in that context . Moreover , the applicant represented a security risk to GPE and to society . His arguments under LAW could not be taken into account because the matter under review concerned his asylum status and not his extradition .", "On DATE ORG upheld ORG decision on the applicant ’s third asylum request .", "The applicant appealed . He argued that he risked being subjected to torture and inhuman and degrading treatment and being sentenced to death if returned to GPE . The applicant also argued that he had family ties in GPE and that he wished to take care of his wife , who suffered from an illness , and their son .", "On DATE ORG upheld ORG judgment of CARDINAL DATE . ORG held , in particular , that the applicant ’s wish to maintain ties with his wife and child , who were NORP nationals , was not a relevant ground for granting him asylum . Furthermore , the applicant had been convicted in GPE of criminal offences linked to the activities of ORG , the aim of which was to establish , by violent means , a fundamentalist NORP State in GPE . Armed attacks carried out by the group could not be considered as a means of political struggle justifying the applicant ’s protection from persecution for political opinions within the meaning of LAW .", "As to the alleged risk of the applicant ’s ill - treatment in GPE , ORG held that the ORG ’s case - law under LAW concerned cases of expulsion or extradition but not those relating to requests for asylum .", "The applicant had not shown that justified reasons existed to believe that he could be persecuted for any of the reasons laid down in section CARDINAL of the Asylum Act DATE , namely on the ground of his race , ethnic origin , belonging to a social group , for religious reasons or because of his political opinion .", "In ORG view , the purpose of granting subsidiary protection was to avoid unsuccessful asylum seekers being removed from GPE in certain justified cases . However , such subsidiary protection was excluded , inter alia , where there were serious reasons to believe that an asylum seeker represented a risk to society or the safety of the ORG in which he or she applied for asylum . Reference was made to ORG CARDINAL and CARDINAL of ORG and subsections ORG ) and ( e ) of section DATE of LAW .", "NORP The applicant ’s conviction in GPE , on DATE , of involvement in a terrorist organisation and his admission that he had been trained in GPE in handling weapons and explosives , as well as other information gathered by ORG , justified the conclusion that the applicant could provide assistance to persons suspected of involvement in terrorist groups operating worldwide . The decision not to grant subsidiary protection to the applicant was therefore lawful . That conclusion could not be affected by the express admission by ORG , in the context of the asylum proceedings , that the applicant could be exposed to a real risk of inhuman treatment if returned to GPE .", "Finally , ORG noted that the applicant had unlawfully left for GPE while proceedings concerning his asylum request in GPE had been pending and that he had lodged an asylum request in GPE . It concluded that the applicant was not genuinely interested in protection by the NORP authorities .", "ORG judgment was served on the applicant and became final on DATE .", "On DATE , the NORP and ORG in GPE ordered the applicant ’s expulsion and banned him from entering GPE for DATE . The decision became final and binding on DATE . The applicant was expelled to GPE on the basis of the decision .", "In DATE the NORP authorities returned the applicant to GPE where he was placed under provisional arrest . On DATE he was remanded in custody pending his extradition on a warrant in connection with the above - mentioned NORP court ’s judgment of DATE .", "On DATE ORG gave its consent to the applicant ’s extradition to GPE . On DATE ORG approved that decision . On DATE ORG suspended the effect of ORG decision pending its decision on the applicant ’s complaint that he would run the risk of ill - treatment if he were extradited to his country of origin .", "On DATE ORG quashed ORG decision of DATE . It instructed the latter to re - examine the case with particular emphasis on the alleged threat of the applicant being subjected to treatment contrary to LAW in the event of his extradition .", "On DATE ORG found that the applicant ’s extradition to GPE was not permissible . On the same date the applicant was released .", "In its judgment ORG relied on a number of international documents , such as reports of ORG of DATE and ORG , a document prepared by the ORG , documents issued by ORG , ORG , ORG , ORG and the ORG ’s judgment in PERSON GPE [ ORG ] , no . DATE ) .", "NORP In particular , ORG referred to the broad powers of investigation of ORG ( ORG ) , documented reports on detention of suspects incommunicado in secret ORG centres , and numerous reports of torture and inhuman or degrading treatment of people at the hands of the ORG . The information available indicated that the ORG had systematically used torture and other forms of ill - treatment in respect of individuals deemed to have information about terrorist activities .", "Furthermore , the law and practice in GPE did not exclude the use in judicial proceedings of evidence which had been extracted under torture . The NORP authorities had refused to co - operate with special rapporteurs or working groups established within the ORG system and with non - governmental organisations with a view to clarifying the position . Similarly , the NORP authorities had refused to allow monitoring the situation of people who had been returned to that country .", "ORG noted that the relevant regulation did not list GPE as a safe country of origin . It concluded that there were justified reasons to fear that the applicant would be exposed to treatment contrary to LAW in the event of his extradition to GPE .", "Subsequently the applicant was apprehended and placed in a detention centre for foreigners in LOC on the basis of the LOC and Foreigners Police decision of DATE . Reference was made to the above - mentioned decision of DATE to expel the applicant and to exclude him from the territory of GPE for DATE . The decision stated that proceedings concerning the applicant ’s expulsion were still under way .", "On DATE the applicant requested leave to stay in GPE ( tolerovaný pobyt ) . The police dismissed the request .", "On DATE the applicant was released from the detention centre for foreigners in GPE . He was placed in an accommodation facility for asylum seekers in GPE and , later , in a similar facility in ORG . During his stay in those facilities the applicant ’s freedom of movement was restricted . He unsuccessfully sought redress before ORG and ORG , which decided on his claim on DATE and DATE respectively .", "On DATE the applicant left the facility in ORG and arrived in a centre for refugees in GPE . The NORP authorities returned him to GPE on DATE .", "NORP On DATE the Minister of the ORG informed the media that the applicant had been expelled from GPE and escorted to GPE in accordance with the decision of the LOC and ORG in GPE of DATE . The applicant ’s representative learned about his expulsion from press articles .", "A letter from ORG of DATE indicated that ORG had convicted the applicant in absentia , on DATE , of belonging to a terrorist organisation acting both in GPE and abroad and of forgery under Articles CARDINALbis , CARDINALbis § § CARDINAL and CARDINAL and LAW . His extradition was requested with a view to re - trying him for the same offences . His previous conviction in absentia would lose effect upon his return to GPE pursuant to LAW . In the event of his extradition the applicant would have an adversarial trial before the criminal court , the judgment of which could be appealed against to ORG . Assistance by legal counsel was mandatory in such proceedings . Under LAW the offences imputed to the applicant were not punishable by capital penalty .", "In a letter of CARDINAL DATE a representative of ORG indicated that his country had not yet ratified LAW to LAW and other Cruel , Inhuman or Degrading Treatment or Punishment . Nevertheless , the law in force established a system of control permitting detained persons to seek redress in the event of a breach of their rights . Furthermore , the collaborators of ORG had the possibility of visiting detained persons in private . Torture and other forms of ill - treatment were subject to heavy penalties under LAW .", "In a letter of CARDINAL DATE ORG indicated that the applicant ’s conviction by the judgment of DATE had lost effect following his return to GPE . He was being detained in GPE prison under an order issued by the indictment chamber of ORG . The applicant had the right to meet an advocate in private , to receive visits by members of his family , to file complaints and to medical care . The applicant ’s trial was scheduled for DATE . He had the right to assistance by counsel and could avail himself of a variety of procedural rights incorporated in LAW . Finally , the letter indicated that several persons suspected of terrorism had been extradited or expelled to GPE from GPE , GPE or GPE and that all those persons had been treated in accordance with the law .", "On DATE ORG asked ORG in GPE for a visit of the former ’s ORG Secretary to be arranged during which he could discuss the applicant ’s situation with the NORP penitentiary administration . The Government submitted no further information as regards that initiative .", "In a verbal note of CARDINAL DATE ORG in GPE informed ORG that ORG had convicted the applicant , on DATE , of having belonged to a terrorist group acting abroad . The trial had been public and covered by the media and the applicant had been defended by counsel of his choice . He had been sentenced to a DATE prison term with DATE suspended and to a fine of QUANTITY . The applicant had also been prohibited from exercising public functions after his release and from exercising his property rights .", "The verbal note further stated that the charges of having belonged to a terrorist group acting within GPE and of complicity in forgery and use of forgeries had not been upheld by the tribunal . Both the prosecution and the applicant ’s counsel had appealed against the judgment on DATE .", "No further information has been provided .", "On DATE the Acting President of ORG decided , in the interests of the parties and the proper conduct of the proceedings before ORG , to indicate to the respondent Government , under LAW , that the applicant should not be extradited to GPE .", "DATE . On DATE the Acting President of the ORG again decided to indicate to the respondent Government under Rule CARDINAL that the applicant should not be expelled to GPE . The measure was to remain in force “ for a period of DATE following the outcome of the asylum proceedings , the ensuing expulsion proceedings as the case [ might ] be and , as appropriate , of any complaint which [ the applicant ] lodge[d ] with ORG in respect of those proceedings . ”", "On DATE the applicant ’s legal representative requested the ORG to clarify the conditions of the interim measure of CARDINAL DATE . The advocate explained that the applicant ’s asylum case had been dismissed by ORG DATE before and , in the absence of the written version of the judgment with reasons , the applicant had not had an opportunity to challenge it before ORG .", "On DATE the Section Registrar informed the applicant that , in applying Rule CARDINAL , the Acting President had wished to ensure that the applicant would not be expelled before he had exhausted domestic remedies . The relevant part of the letter reads :", "“ The Rule CARDINAL measure remains in force until ORG has pronounced on the applicant ’s constitutional complaint .", "It is clear that the applicant needs the reasons given by ORG for refusing his asylum case to enable him to lodge a complaint under LAW with ORG .", "The DATE period referred to in the ORG ’s letter of CARDINAL DATE runs from the date on which the final decision is given with reasons and is intended to allow the ORG , in the light of the reasons given by ORG , to decide whether to lift or continue to apply Rule CARDINAL . ”", "A copy of the letter was sent to the Government with specific mention that the Rule CARDINAL measure was still in force .", "On DATE the applicant ’s representative informed the ORG that it was impossible to contact the applicant and that , according to media reports , he had been expelled to GPE DATE .", "On DATE , on instruction by the President of the Section , the Section Registrar requested the Government to confirm or deny the reports of the applicant ’s expulsion .", "On DATE the Government informed the ORG that the applicant had been expelled on DATE . The expulsion had been carried out on the basis of the final and binding decision of the LOC and ORG of DATE . Since ORG judgment in the asylum proceedings had become final on DATE , on the national level the applicant was considered to be a foreigner without permission to stay in GPE .", "On DATE the Registrar of the ORG sent the following letter to the Government :", "“ The President of the ORG ... has instructed me to express on his behalf his profound regret at the decision taken by your authorities to extradite Mr PERSON to GPE in disrespect of the ORG ’s interim measure adopted under LAW .", "The President has noted in this connection that on DATE your authorities were reminded in clear terms by ORG that the Rule CARDINAL measure , first applied on DATE , continued to remain in force . Nevertheless , the Government extradited the applicant to GPE on DATE .", "The President is deeply disturbed at this development and is particularly concerned about its implications for the authority of the ORG and the unfortunate message which it sends both to other GPE faced with a Rule CARDINAL measure and to applicants and potential applicants liable to extradition or expulsion to countries where they may be exposed to the risk of violation of their rights under LAW and CARDINAL of the Convention . As an indication of the seriousness with which he views this turn of events , the President has asked that the Chairman of ORG , the President of ORG and the Secretary General of ORG be informed immediately .", "The President also notes that notwithstanding the ORG ’s request of DATE for clarification of the circumstances surrounding Mr PERSON ’s extradition , your letter of DATE failed to explain why the Rule CARDINAL measure was not complied with . The President expects your authorities to provide an explanation . He would in particular request your authorities to confirm or deny reports that the spokesperson of ORG declared that his authorities were prepared to run the risk of being found to be in breach of the LAW and that other GPE which had failed to comply with a Rule CARDINAL measure only had to pay ‘ CARDINAL ” .", "In a reply dated CARDINAL DATE the Vice - Prime Minister holding the post of the Minister of the ORG stated that all the relevant facts and legal issues had been taken into account prior to the applicant ’s expulsion to GPE , which had been carried out in accordance with the police decision of DATE .", "The letter indicated , inter alia , that the offences of which the applicant had been convicted in absentia did not carry a capital penalty . The NORP authorities had confirmed that the applicant would receive a new trial in which his defence rights would be respected and that all forms of violence against individuals were punishable under NORP law .", "The applicant had been convicted and sentenced to DATE imprisonment in GPE ; he had also been banned from the territory of that ORG . Information about the applicant , including his involvement in the activities of terrorist groups and the fact that an international arrest warrant had been issued by NORP authorities , was entered in the GPE information system . The NORP police ’s decision to expel the applicant was also based on the obligation resulting from ORG of CARDINAL DATE , which requires the police in GPE to ensure the enforcement of an expulsion decision issued in CARDINAL of the GPE within ORG where a foreigner was sentenced to a prison term of DATE .", "On the basis of all the information available the NORP police had concluded that the applicant represented a real risk to the security of GPE and to society . ORG , in its decision concerning the applicant ’s third request for asylum , had reached the same conclusion .", "The Ministry of the ORG believed that the need to protect society from a person who had been convicted of involvement in a terrorist group prevailed in the present case and that the applicant ’s expulsion had not been contrary to GPE ’s undertakings under the Convention . The statements which the spokesperson of ORG had made about the applicant ’s case and the ORG ’s practice were to be interpreted in that context .", "At the time of lodging the application the applicant was represented by PERSON , a lawyer practising in GPE . In a letter of CARDINAL July DATE PERSON informed the ORG that her right to practice as an advocate had been suspended as of that date following her appointment as Secretary of ORG at ORG . The letter further stated that PERSON PERSON , a lawyer practising in GPE , was prepared to take over the applicant ’s representation before the ORG . It was impossible to contact the applicant for practical reasons , but the necessary steps would be taken with a view to ensuring his proper representation .", "On DATE Mr PERSON confirmed that , upon agreement with PERSON , he undertook to protect the applicant ’s rights and to submit a power of attorney from the applicant as soon as he could obtain one .", "On DATE and CARDINAL DATE Mr PERSON informed the ORG that he had sent CARDINAL letters to the applicant in ORG prison in GPE to which he had received no reply . ORG of GPE had refused to inform Mr PERSON of the applicant ’s address on the ground that he had not produced a power of attorney to represent the applicant . Efforts were being made , in co - operation with ORG , to obtain more information about the applicant ’s whereabouts .", "Mr PERSON stated , with reference to section CARDINAL of LAW DATE , that Ms PERSON had appointed him as her substitute on the basis of their mutual agreement . The client ’s consent and submission of a new power of attorney were not required in such circumstances .", "In a letter of DATE Mr PERSON submitted information about the applicant ’s fresh trial and conviction in GPE which he had obtained from representatives of ORG , CARDINAL of whom had talked to the applicant ’s brother . That information corresponds to that which ORG had furnished to the respondent Government ( see paragraph CARDINAL above ) .", "On DATE Mr Hrbáň informed the ORG that he had been unable to establish contact with the applicant . He maintained that he acted in good faith with a view to defending the applicant ’s interests and that he had not modified the subject - matter of the application as submitted by the representative whom the applicant had appointed . He would continue in his efforts to contact the applicant in GPE and asked the Court to consider his submissions as an amicus curiae intervention .", "DATE . Section CARDINALa entitles ORG to grant subsidiary protection to unsuccessful asylum seekers . Except for cases where LAW provides otherwise , such subsidiary protection is to be granted where there are serious grounds to believe that an asylum seeker would be exposed to a real threat of serious lawlessness in the event of his or her return to the country of origin .", "Pursuant to sub - sections ( DATE ) and ( d ) of section DATE , ORG should not grant subsidiary protection to an unsuccessful asylum seeker who represents a security threat to GPE or a danger to society .", "Pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) , within the framework of a power of attorney issued by a client , a lawyer may ask a different lawyer to represent him or her . However , such substitution of lawyers is not permissible contrary to the client ’s will .", "Pursuant to section CARDINAL(CARDINAL ) , an individually practising lawyer who encounters an obstacle preventing him or her from carrying out his or her duties is obliged , unless other steps are taken with a view to protecting the client ’s rights and interests , to appoint a different lawyer as his or her substitute , based on an agreement with the latter and within DATE at the latest . The client is to be informed of the arrangement without delay . Where an advocate fails to comply with that obligation , ORG is to appoint a substitute lawyer to represent the client .", "Section CARDINAL(CARDINAL ) provides that a request for proceedings to be started before ORG must indicate , inter alia , the decision which the plaintiff seeks to obtain , specify the reasons for the request and indicate evidence in support .", "Pursuant to section CARDINAL(CARDINAL ) , a plaintiff has to enclose to his or her complaint a copy of the final decision , measure or the evidence of any other interference in issue .", "Section CARDINAL(CARDINAL ) provides that the filing of a complaint has no automatic suspensive effect . Under subsection CARDINAL ORG can issue an interim measure , at the request of the plaintiff , suspending the enforceability of a final decision , measure or other interference .", "Section CARDINAL(CARDINAL ) provides that a complaint to ORG can be lodged within DATE of the date on which the decision in question has become final and binding or on which a measure has been notified or notice of other interference with the plaintiff ’s interests has been given . As regards measures and other types of interference , this period commences when the complainant has a practical possibility of becoming aware of them .", "DATE . In a statement published on DATE the Secretary General of ORG expressed his regret that the NORP authorities had extradited the applicant in disregard of the interim measure ordered by the ORG .", "In a separate statement published on DATE the chairpersons of CARDINAL committees of ORG of ORG expressed their shock and concern at the decision taken by the NORP authorities to extradite the applicant to GPE .", "ORG considered the third periodic report of GPE submitted under LAW and adopted its concluding observations on DATE . The relevant parts read as follows :", "“ CARDINAL . While noting the assurances given by ORG delegation on the periodic and unannounced inspections that the authorities and ORG conduct in prisons , the ORG is concerned about the numerous reports from non - governmental sources pointing to the existence of secret detention centres located , allegedly , at PERSON , PERSON , ORG , ORG and ORG , among others , where persons deprived of their liberty are allegedly being held . ( ... )", "ORG takes note with concern of the information regarding cases of torture and cruel , inhuman or degrading treatment in ORG , for which the ORG reportedly has responsibility . ( ... )", "ORG is concerned that confessions obtained under torture are not explicitly prohibited and excluded as evidence under ORG legislation . ”", "On DATE ORG adopted its concluding observations in respect of the third periodic report submitted by GPE under LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment . They comprise the following parts :", "“ CARDINAL . ORG takes note of ORG assurances that ORG officers are placed under the control of ORG , and that secure detention centres no longer exist as of DATE . ORG nevertheless remains concerned about reports of the existence of secret detention centres run by ORG in its military barracks in PERSON , in the GPE district of GPE , which are outside the control of the courts . ORG is also concerned about the lack of information showing that the competent judicial authority has taken steps to look into these allegations . ( ... )", "While taking note of the information provided by the delegation of the State party concerning its efforts to provide human rights training for law enforcement personnel , the ORG nevertheless remains concerned at the many serious allegations which it has received of cases of torture and abuse inflicted on detainees by law enforcement officers , including officers of the Intelligence and Security Department . ( ... )", "While noting the NORP delegation ’s assurances that confessions are used only for information purposes in legal proceedings , in accordance with LAW , the ORG remains concerned about the lack of a provision in ORG legislation clearly specifying that any statement that is proved to have been obtained as a result of torture may not be cited as evidence in any proceedings , in accordance with LAW . In addition , ORG is concerned that article CARDINAL of LAW specifies that , ‘ as with any evidence , the evaluation of confessions is a matter for the judge’ , as well as information received that confessions obtained as a result of torture have been admitted in legal proceedings . ”", "ORG on ORG , established in accordance with ORG resolution CARDINAL of DATE , held the review of GPE on DATE .", "While presenting the national report the Minister of ORG of GPE stated that torture and similar practices were prohibited by the fundamental law in all places and circumstances . He also firmly denied the existence of secret detention centres in the country .", "In the ensuing interactive dialogue it was acknowledged that progress had been made in respect of the criminalisation of torture , human rights training for police officers and improving standards in prisons , but reference was also made to information concerning cases of suspects detained for DATE or DATE without notification to the judiciary and without any possibility to communicate with their family or lawyers .", "The recommendations included , among others , that GPE should implement measures to protect detainees from torture , cruel , inhuman or degrading treatment , ensure that all cases of persons detained are brought to the attention of the judiciary without delay , and consider facilitating visits by the ORG human rights mandate holders .", "The Special Rapporteur on torture and other cruel , inhuman or degrading treatment or punishment solicited an invitation to visit GPE for the first time in DATE . The visit request is still pending .", "The request by Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to visit GPE has been pending since DATE .", "On DATE , those CARDINAL Special Rapporteurs issued a press statement in which they expressed concern about , inter alia , transfer of Guantánamo Base detainees to GPE without a proper assessment of the risks they could face in their country of origin .", "A press release on the applicant ’s case issued on DATE ( EUR CARDINAL/CARDINAL/CARDINAL ) contains the following background information :", "“ Anyone in GPE suspected of involvement in terrorist activities , or who is believed to possess information about terrorist activities , whether in GPE or abroad , faces a real risk of secret detention and torture . ORG has received CARDINAL of reports of detainees treated in this way , among them people who had returned to GPE from overseas , either voluntarily or at the hands of foreign governments .", "Under LAW , detainees suspected of “ terrorist or subversive acts ” may be held without charge for a maximum of DATE . The arresting authorities must immediately give them the opportunity to communicate with their families and to receive visits from them . In addition , any detention beyond DATE has to be authorized in writing by the public prosecutor . These requirements are routinely violated in the cases of people held by ORG ( ... ) which specializes in interrogating those thought to have information about terrorist activities .", "Before they are either brought before the judicial authorities or released without charge , those arrested are systematically held incommunicado for DATE , and sometimes longer . It is while they are in secret detention in barracks operated by the ORG that detainees are most at risk of torture and other ill - treatment .", "ORG has received information on several cases where detainees were held by the ORG for DATE without contact with the outside world in violation of NORP and international law , during which time they were reportedly subjected to torture and other ill - treatment . GPE ’s civilian authorities have no effective control over the activities of the ORG . ”", "In a briefing to ORG in respect of GPE , in DATE , ORG referred to the case of GPE , who had been returned to GPE from GPE in DATE . According to information received by ORG , upon arrival in GPE M.S. was arrested by ORG and Security military intelligence agency and held incommunicado for DATE . He was subsequently released without charge .", "In its briefing to ORG in respect of GPE , in DATE , ORG mentioned the case of PERSON who , upon his arrival in GPE on DATE , was detained by plain - clothes security officers and held incommunicado for DATE . He was released without charge on DATE . After his release he said that he had been interrogated about the activities which had led to his conviction and prison sentence in GPE . He also said that he had signed a statement saying that he had been treated well in detention before his release . ORG noted that , in its experience , the fact that someone had just been released from ORG custody would weigh heavily on their mind when they spoke about their treatment in detention , in case this exposed them to possible reprisals .", "In a public statement of DATE ORG condemned the actions of the NORP authorities in forcibly returning the applicant from GPE to GPE despite an order for the application of an interim measure from ORG and the ruling of ORG of DATE . ORG expressed a fear that , upon his arrival in GPE , the applicant might have been arrested by the ORG . Reference was made to documented cases where suspects detained by the ORG had been held in unrecognised places of detention , usually military barracks , and denied any contact with the outside world , often for prolonged periods , in violation of GPE ’s international obligations as well as the Algerian Code of Criminal Procedure . ORG was further concerned that NORP courts continued to accept “ confessions ” extracted under torture or duress .", "In a public statement of CARDINAL DATE ORG urged the NORP authorities to immediately open an investigation into allegations that detainees in FAC in GPE had been subjected to ill - treatment . Reference was made to the lack of proper investigations into previous reports of abuse of detainees . The statement drew attention to the hunger strike of CARDINAL detainees in FAC . According to information obtained by ORG , the strike had been provoked by actions of the prison guards , including routine verbal abuse of the detainees , all of whom were awaiting trial on terrorism - related charges , such as calling them “ terrorists ” , stripping them naked in front of other detainees and a large number of guards , seemingly to humiliate them , and occasionally slapping them .", "NORP The statement further indicated that there existed persistent reports of torture or other ill - treatment in GPE , particularly at the hands of ORG but also at FAC . CARDINAL of the detainees concerned had reported being tied up , drenched in water and beaten with wooden sticks all over his body , including the soles of his feet , by prison guards in the office of the Director of ORG on DATE . After the beating , he had been reportedly placed in solidarity confinement without water or access to the toilet for DATE . Even though his lawyer had filed a complaint , no independent , full or impartial investigation had been conducted .", "ORG DATE , in its relevant part , reads :", "“ Officers of ORG ( ORG ) , military intelligence , continued to arrest security suspects and detain them incommunicado , in some cases for DATE permitted by law , at unrecognized detention centres where they were at risk of torture or other ill - treatment . Impunity for torturing or otherwise abusing security suspects remained entrenched . ( ... )", "PERSON was detained for DATE by the ORG after he was forcibly returned to GPE from GPE on DATE ] . He was then transferred to ORG prison . At DATE , he was awaiting trial on charges of belonging to a ‘ terrorist group abroad’ . ( ... )", "In DATE , security suspects held in ORG prison went on hunger strike to protest against alleged ill - treatment by guards who , they said , had insulted , slapped and humiliated them . No official investigation into their allegations was held .", "Suspects in terrorism - related cases faced unfair trials . Some were convicted on the basis of ‘ ORG that they alleged were extracted under torture or other duress , including some who were sentenced to death by military courts . Some were denied access to lawyers of their choice . Other security suspects were detained without trial . ( ... )", "PERSON and PERSON were transferred to GPE from GPE custody in Guantánamo By in DATE ; PERSON was transferred in DATE . All CARDINAL remained at liberty while investigations continued to determine whether they would face charges of belonging to a ‘ terrorist group abroad’ . CARDINAL former ORG detainees , ORG and PERSON , were acquitted of similar charges in DATE , respectively . Another former ORG detainee , ORG , was sentenced to a suspended prison term . ”" ]

[ "13", "3", "34" ]

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[]

[ "On DATE , at ORG , the applicant was convicted of being concerned in the importation in DATE of a large quantity of cannabis resin , contrary to section PERSON ) of the ORG and Excise Management Act DATE . On DATE he was sentenced to CARDINAL years’ imprisonment in respect of this offence . The applicant had previous convictions , but none in respect of a drug - related offence .", "An inquiry was conducted into the applicant ’s means , pursuant to section CARDINAL of LAW DATE ( “ the DATE LAW see below ) .", "On CARDINAL DATE a ORG and Excise appointed drug financial investigation officer advised the applicant ’s solicitors that he was carrying out an investigation into their client ’s financial affairs and that he wished to interview him in order to assist the court in determining whether he had benefited from drug trafficking . The applicant declined to take part in the interview .", "The investigation officer prepared a written statement pursuant to LAW which was served on the applicant and filed with the court .", "In the statement the investigation officer observed that the applicant had no declared taxable source of income , although he was the registered owner of a house converted into CARDINAL flats from which he had started a bed - and - breakfast business in DATE . Examination of the applicant ’s building society account showed cash and cheque deposits in the period from DATE to DATE totalling over MONEY ( GBP ) , which the investigation officer suggested might represent rental income from the CARDINAL flats . The applicant was found to have become a director of a newsagents business in DATE of which his parents were the sole shareholders and to have bought a shop in DATE for GBP CARDINAL , of which GBP CARDINAL was paid in cash . He was the registered owner of CARDINAL cars , of an estimated total value of MONEY , and was found to have spent GBP CARDINAL on a ORG CARDINALi in DATE , and MONEY CARDINAL on expenses related to the DATE importation of cannabis ( in respect of which he had been convicted ) . The investigation officer concluded that the applicant had benefited from drug trafficking and that the total benefit was GBP CARDINAL .", "In respect of the applicant ’s realisable assets , the investigation officer observed :", "“ The size of Phillips’ realisable assets is likely to be peculiarly within the defendant ’s own knowledge and I feel it reasonable to suppose that any successful drug trafficker ( in as much as the defendant is ) may take care to ensure , so far as he can , that the proceeds of his trade will be hidden away so as to be untraceable . Examples include the fact that his business dealings are always conducted in cash , that no records are ever maintained , and that some assets , for example the ORG CARDINALi , are registered in false names . ”", "The applicant filed a written statement in response , in which he denied having benefited from drug trafficking . He explained that in DATE - CARDINAL he had been convicted of car theft and required to pay GBP CARDINAL to the insurance company which had indemnified the victims . He claimed that he had sold the house for GBP CARDINAL,CARDINAL to X in order to clear this debt and had used the GBP CARDINAL residue from the sale to purchase the newsagents LOC for his parents because he owed them money too . He denied owning any part in the newsagents business . When he was released from prison in DATE he began trading in telephones ; this was the source of the GBP CARDINAL in his building society account . He denied owning any of the cars registered in his name , claiming variously that each had been purchased and sold on behalf of a friend or stolen without insurance . In conclusion , he alleged that his only realisable assets were some GBP CARDINAL in a building society account and the fittings of a garage rented from the local authority . The applicant filed documentary evidence and affidavits in support , primarily , of his claim no longer to own the house .", "NORP The investigation officer filed a second statement in accordance with section CARDINAL(CARDINAL ) of the DATE Act . He stated , inter alia , that the applicant was still the owner of the house and that the conveyance to X had never been registered .", "At the confiscation hearing in the ORG the applicant gave evidence and called witnesses . Giving judgment on DATE the judge observed :", "“ It is for the prosecution to establish , of course , on a balance of probabilities that he has benefited from drug trafficking , that is received any payment or reward in connection with drug trafficking . Here there is no direct evidence of that so the ORG invite me to make the assumptions required by section CARDINAL(CARDINAL ) of the LAW , namely ( a ) that property held by him since his conviction , and property transferred to him since DATE , the appropriate date , was received as such a benefit ; ( b ) that any expenditure of his since that date in DATE was met out of payments received by him in connection with any drug trafficking carried on by him . I must do so unless either he shows on a balance of probabilities that the assumption is incorrect , or I am satisfied that there would be a serious risk of injustice to him if the assumption was made . ”", "The judge commented generally that , in seeking to displace the assumption and to counter the prosecutor ’s allegations , the applicant had failed to take obvious , ordinary and simple steps which would clearly have been taken if his account of the facts had been true . For example , instead of calling as witnesses the alleged purchaser of the house , X , and other individuals for whom he claimed to have bought and sold cars , the applicant had called only himself , his father and a solicitor .", "The judge found the prosecution ’s allegation that the applicant still owned the house to be correct and held that ORG ’s purported purchase payment of ORG had in fact been a benefit of drug trafficking . The judge stated :", "“ The assumption to be made is plain , and the accused has neither shown that it is incorrect nor demonstrated a risk of injustice .", "There are real indications on the civil basis of proof that [ X ] was complicit in the crime of which the accused was convicted . They travelled to GPE together at about the time when arrangements for shipment of the load of compressed herbal cannabis would be likely to be made . A mobile phone at the heart of the arrangements for the haulage of the drugs was registered in the name of [ X ] . Just as the jury did not believe PERSON , neither do I. What has happened here , in my judgment , is a device of just the sort providing a cover to explain the transfer of money which one would expect to find in concealing benefit from drug trafficking . There is an apparently ordinary , formal , commercial transfer of property , appropriately done through solicitors in the ordinary way , which has never ultimately been formally finalised , and my judgment is that it was indeed a sham , that the property ... is still owned by the accused ... ”", "The prosecution alleged that the applicant had received a further GBP CARDINAL in cash from X. The applicant accepted that he had received this money , but claimed that X had merely been cashing a cheque drawn by the applicant ’s father to buy out the applicant ’s share in the family business for a total of GBP CARDINAL . In connection with this transaction , the judge observed :", "“ No sensible explanation for the involvement of [ X ] in that cashing of that cheque was given to me at all , and it is impossible , in my judgment , to see any sensible reason other than that he did not cash a cheque ; that it was a simple payment . It involves my disbelieving not only the accused but also his father , but I do . I think family loyalty has overcome his honesty .", "Although the accused now has no formal interest in the remaining shop LOC from which the family business is conducted , I do not accept the account of himself and his father that he has no interest in the business . Even within a family I find the purchase of a share of a business for GBP CARDINAL,CARDINAL entirely without documentation simply unbelievable . Again , on the balance of probabilities it is a device to conceal the true reason for the payment by [ X ] to the accused of GBP CARDINAL which was that it was a payment for drug trafficking . ”", "In respect of the applicant ’s dealings with cars , the judge remarked :", "“ Accepting his lowest estimates of those sums which he has paid out , a total of GBP CARDINAL in cash is reached . He told the jury that he always dealt in cash in all his transactions , not only dealing with these but other transactions , he presenting himself to the jury as a general wheeler - dealer , having specialised at CARDINAL stage in cars , more recently in mobile telephones , but willing to deal in anything which would offer a profit . He says he never kept records at all . He accepts and asserts that he dealt dishonestly in cars , as well as legitimately , and that is certainly so . He has been convicted during the relevant period of offences of dishonesty in relation to ringing cars and was sentenced to a substantial term of imprisonment in respect of that . There are also in the papers before me indications of earning legitimate commissions in ordinary sales of cars .", "But the fact that he may have had other sources of cash , both legitimate and illegitimate , does not , in my judgment , displace the second assumption in a case such as this where no sort of account , complete or partial , is available or possible . I have seen what must have been a fraction of his dealings , and I am satisfied that the GBP CARDINAL must be treated as a benefit . ”", "The judge assessed the applicant to have benefited from drug trafficking to the extent of GBP CARDINAL .", "He next calculated the value of the realisable property held by the applicant as follows :", "“ For the reasons that I have given above I am satisfied that [ the applicant ] is in fact the beneficial owner of [ the house ] . In the absence of a current valuation , but taking judicial notice of a recent modest recovery in the housing market after a long , flat period , I am satisfied that the GBP CARDINAL which he said in evidence was what such a property was worth in DATE , that is to say during the long , flat period , I am satisfied that GBP CARDINAL is a fair estimate of the likely net proceeds of a sale of that property now or in the relatively near future .", "Again for the reasons that I have given above , I am satisfied that the accused still has a CARDINAL interest with his parents in the [ newsagents business ] . He and his father said that the business was worth GBP CARDINAL in DATE . That is what was purported to be the basis of the GBP CARDINAL he was to be given for it . There is no evidence that it is worth any less now , and I therefore find his realisable share in the equity in that business to be worth GBP CARDINAL . Since I am satisfied as to GBP CARDINAL realisable sums , that figure exceeds the GBP CARDINAL and under section CARDINAL I find the amount to be recovered to be that figure . ”", "In view of the difficulties inherent in realising the applicant ’s share of the family business , the judge allowed him DATE in which to pay the confiscation order , with a period of CARDINAL years’ imprisonment to be served in default of payment .", "On DATE the applicant was refused leave to appeal against conviction and sentence ( including the imposition of the confiscation order ) . His application to renew leave to appeal against conviction and sentence was refused on DATE after a full hearing before ORG .", "Section CARDINAL of the DATE LAW provides that a ORG should make a confiscation order in respect of a defendant appearing before it for sentencing in respect of CARDINAL or more drug - trafficking offences , whom the court finds to have received at any time any payment or other reward in connection with drug trafficking .", "NORP Under LAW , the confiscation order should be set at a sum corresponding to the proceeds of drug trafficking assessed by the court to have been gained by the defendant , unless the court is satisfied that , at the time the confiscation order is made , only a lesser sum could be realised .", "In determining whether and to what extent the defendant has benefited from drug trafficking , section CARDINAL(CARDINAL ) and ( CARDINAL ) of the DATE Act require the court to assume that any property appearing to have been held by the defendant at any time since his conviction or during DATE on which the criminal proceedings were commenced was received as a payment or reward in connection with drug trafficking , and that any expenditure incurred by him during the same period was paid for out of the proceeds of drug trafficking . This statutory assumption may be set aside by the defendant in relation to any particular property or expenditure if it is shown to be incorrect or if there would be a serious risk of injustice if it were applied ( section CARDINAL ) ) .", "The required standard of proof applicable throughout the DATE Act is that applied in civil proceedings , namely on the balance of probabilities ( section CARDINAL(CARDINAL ) ) .", "Provisions broadly similar to the above were previously included in LAW DATE ( “ the CARDINAL Act ” , considered by the ORG in PERSON v. the GPE , judgment of CARDINAL DATE , Series A no . CARDINAL-A ) .", "NORP In its judgment of CARDINAL DATE ORG , by a majority of CARDINAL , held that a confiscation procedure similar to that applied in the present case was incompatible with LAW . Lord PERSON , with whom Lord PERSON agreed , observed , inter alia :", "“ ... By asking the court to make a confiscation order , the prosecutor is asking it to assess the value of the proceeds of the petitioner ’s drug trafficking . It is therefore asking the court to reach the stage of saying that he has trafficked in drugs . If that is criminal , that seems to me to be closely analogous to an actual charge of an actual crime , in NORP terms . There is of course no indictment or complaint , and no conviction . And the advocate depute pointed out a further difference , that a NORP complaint or indictment would have to be specific , and would require evidence , whereas this particular allegation was unspecific and based on no evidence . But the suggestion that there is less need for a presumption of innocence in the latter situation appears to me to be somewhat PERSON , and to portray vice as a virtue . With no notice of what he is supposed to have done , or of any basis which there might be for treating him as having done it , the accused ’s need for the presumption of innocence is in my opinion all the greater ... I can see no basis upon which it could be said that [ such ] assumptions ... would not offend against the presumption of innocence , leaving it to the accused to show that these assumptions were incorrect . ... ”", "On DATE ORG held unanimously that the imposition of a drug confiscation order did not give rise to a violation of LAW . Giving judgment , the Lord Chief Justice examined the confiscation process on the basis that LAW as a whole , including LAW , applied . He concluded that , considered as a whole , the confiscation scheme struck a fair balance between justice for the defendant and the public interest in controlling the proceeds of drug trafficking .", "The prosecution appealed from ORG decision ( see paragraph CARDINAL above ) and on DATE ORG of ORG held , unanimously , that LAW did not apply , since during the confiscation proceedings the accused was not “ charged with a criminal offence ” but was , instead , faced with a sentencing procedure in respect of the offence of which he had been convicted . Moreover , ORG held that even if LAW could be said to apply , the assumption involved in the making of the confiscation order was not unreasonable or oppressive ." ]

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[ "6" ]

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

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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 , a lawyer practising in GPE . The Government were represented by their Agent , Mr M. ORG , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows . The applicant joined ORG in or DATE . He completed CARDINAL tours of duty in GPE in DATE and DATE , during and after which he suffered from depression and experienced certain problems with his superiors . On DATE he went absent from the ORG . In DATE his brother committed suicide after which the applicant could not envisage going back to the ORG .", "On DATE he was arrested and held in close arrest , during which detention he was diagnosed as suffering from ORG . While in close arrest he gave his Defending Officer a list of CARDINAL witnesses who could testify as to the manner in which he had been treated by his superior officers while in the ORG . He claims that his Defending Officer only spoke to CARDINAL of those potential witnesses , that he failed to investigate a relevant incident and that that officer had told him that , if he took CARDINAL GPE additional treatment in the naval hospital and opted for a summary trial before his Commanding Officer ( Captain PERSON ) , the punishment for his absence would be discharge only . He also alleges that that officer discouraged him from making a complaint against the relevant superior officers and avoided giving the applicant access to a naval barrister .", "On DATE the applicant was brought before his Commanding Officer and was charged with desertion contrary to LAW DATE ( for which offence the potential punishment after trial by court - martial is an unlimited period of imprisonment ) . He was given DATE to consider whether he wished to have a summary trial or be tried by court - martial . On DATE he opted for a summary trial and on DATE he was tried by his Commanding Officer , when the applicant pleaded guilty . The applicant claims that his Defending Officer did not procure the attendance of any of the CARDINAL witnesses he had proposed as regards mitigation of sentence . He was sentenced to CARDINAL days’ detention ( with no remission for DATE of close arrest already served ) and discharge from the ORG . By letter dated DATE from the applicant ’s Commanding Officer to the latter ’s next superior officer ( the Flag Officer Training and Recruitment – “ FAC ” ) , the Commanding Officer described in some detail the charge against the applicant , his plea , the prosecution case , the evidence in mitigation of sentence and the reasons for the punishment imposed . On DATE the sentence was confirmed by the ORG . The applicant commenced his sentence .", "On DATE he lodged a petition against the severity of his sentence , arguing that his ORG had not been sufficiently taken in account . By letter dated DATE the Commanding Officer provided written comments on the applicant ’s petition . By letter dated DATE the ORG outlined in detail why he rejected the applicant ’s petition . On or DATE , Major PERSON informed the applicant of the outcome of his petition and made the following hand - written note at the end of the letter of DATE : “ Informed + does not wish to pursue further ” .", "The Government maintain that Major PERSON informed the applicant , as he was required to do , that the applicant had the right to take the matter further and that the applicant did not wish to . The applicant submits that Major PERSON told him that he could take the matter further only if he had fresh evidence and that there is nothing in Major PERSON ’s hand - written note that contradicts this .", "Having no fresh evidence , the applicant did not pursue the matter further , served his sentence and left the ORG in DATE .", "On DATE the applicant wrote to his solicitors pointing out that he believed that he had not been given a fair trial since statements from witnesses had not been collected or presented at trial , medical reports and the time spent in close arrest were ignored , and the case was decided on elements that had nothing to do with the reasons for his leaving .", "On DATE the applicant ’s solicitor wrote to the successor of the applicant ’s Commanding Officer ( Captain Hart ) , in the following terms :", "“ I represent PERSON in connection with his detention arising from a hearing at the Captain ’s table on DATE . I should be most grateful if you would please advise me if there is any method of appeal or review of that decision . Could you please let me have a copy of the reasons for the decision made for his detention . I understand that no legal representation was available at the hearing before the Captain . ”", "Captain PERSON replied by letter dated DATE indicating that the applicant had had CARDINAL review before the ORG and that , while he had been advised that another review to a specific higher authority ( Second Sea Lord / Commander ) was open to him , he had chosen not to pursue that option .", "On DATE ORG handed down its judgment in the PERSON case ( PERSON v. the GPE judgment of DATE , Reports of Judgments and ORG , no . CARDINAL ) . The applicant claims that it was not until the publication of that judgment and having taken counsel ’s advice that he realised that he had the right to request that his complaint be taken further .", "The applicant ’s solicitor therefore wrote to Captain Hart on DATE referring to the FAC judgment , pointing out that the applicant considered that he had not had a fair hearing by an independent and impartial tribunal ( within the meaning of that judgment ) , and as required by the rules of natural justice . He stated that he wished to renew his complaint against sentence to a higher authority for which no time - limit had been set down by the relevant regulations .", "Captain PERSON replied by letter dated DATE . He set out the history of the case and rebutted certain of the applicant ’s allegations about his trial and noted that the applicant had since left the service thereby losing any right to request a further review . He concluded by noting that nothing new had been raised in the applicant ’s lawyer ’s letter about the facts of the applicant ’s case , that the PERSON case was of no relevance and that , accordingly , there were no justifiable grounds to review the case again .", "On DATE the applicant applied for legal aid to pursue judicial review proceedings against ORG in respect of the decision of Captain Hart not to forward the applicant ’s complaint to the next higher authority . On DATE ORG refused legal aid . ORG considered that the applicant had not shown reasonable grounds for taking , defending or being a party to proceedings and that the applicant had not shown that the decision of Captain Hart was illegal , irrational or procedurally improper . The Board noted that DATE limitation period for judicial review proceedings appeared to run from DATE and , given that Captain Hart ’s letter of DATE merely confirmed what had previously taken place , judicial review proceedings were out of time . On DATE ORG refused the applicant ’s appeal against the refusal of legal aid , the ORG not being satisfied that the applicant had reasonable prospects of success in the proposed judicial review proceedings .", "Section CARDINAL of LAW DATE ( “ the DATE LAW ) reads , in so far as is relevant , as follows :", "“ CARDINAL . If a person subject to this LAW thinks that he has suffered any personal oppression , injustice or other ill - treatment , he may make a complaint in accordance with the procedure laid down in Queen ’s Regulations and , if he does not obtain the redress to which he thinks he is entitled , a complaint to ORG . ...", "NORP On receiving any complaint made by virtue of subsection ( CARDINAL ) above , it shall be the duty of ORG to investigate the complaint and to grant any redress which appears to them to be necessary ... ”", "An officer of junior rank or a rating may request an officer in his ship to assist him in making a complaint , in default of which the Divisional Officer ( or such other officer as the Commanding Officer may decide ) will give assistance ( clause CARDINAL of paragraph CARDINAL ) . In the case of a rating , the complaint is first made orally to the Commanding Officer ( clause CARDINAL ) .", "Clause CARDINAL points out that it is the duty of any authority receiving a complaint to have it investigated as soon as possible . On receipt of any complaint , the Commanding Officer or other officer receiving the same shall satisfy himself that the complaint is made in accordance with the appropriate regulations in this section . He is then to deal with it in the exercise of his discretion as may seem to him right , and cause the complainant to be informed of his decision .", "Clause CARDINAL provides that , if the Commanding Officer should refuse or be unable to remedy the complaint so made , the complainant may ask that he may be allowed to make his complaint in writing . On receiving the request , the Commanding Officer is to give the complainant TIME to reconsider the matter . The complainant ( while still having the assistance of the officer referred to in clause CARDINAL ) may then address his complaint in writing to the Commanding Officer , who is to forward it to his next superior , together with his own remarks thereon .", "Clauses CARDINAL and CARDINAL of paragraph CARDINAL read , insofar as relevant , as follows :", "“ CARDINAL . If the complainant is not satisfied . If the complainant is not satisfied with the decision on his complaint , he may request that it be forwarded to the next superior authority and so on to the Commander - in - Chief and finally to ORG to be dealt with in accordance with Clause CARDINAL , and all such requests shall be complied with . ... When such a complaint is referred to a higher authority a copy of the complainant ’s full service documents should also be forwarded , in order that the complaint may be dealt with without delay . ” ...", "“ CARDINAL . Injustice at a summary trial . If a rating considers he has suffered an injustice at a summary trial , in conviction and/or sentence , he should state a complaint as set out < in Clauses CARDINAL - CARDINAL > above . Detailed instructions for the handling of such complaints are contained in NORP , Manual of Naval Law , LAW . ”", "“ Section II : REVIEW OF ORG TRIALS", "“ DATE . Complaints against conviction and/or sentence", "There is no right to appeal to ORG against either conviction or sentence at a summary trial . However , a rating is entitled to represent , through the medium of the complaints procedure set out in < Queen ’s Regulations > Chapter CARDINAL , that he has been wrongfully convicted , or excessively punished , or both .", "Any such complaint should be made as early as possible to facilitate proper investigation . Application should not be delayed until completion of the punishment . ...", "Where a Commanding Officer or intermediate superior authority rejects a complaint , the rating is to be informed and the reasons stated . The rating should also be told of his right to have his complaint considered by the next higher authority if he is not satisfied . ...", "A rating whose complaint has been rejected by a Commander - in - Chief , an Area Flag Officer , ORG , the Flag Officer Surface Flotilla , ORG or FAC is to be informed of his right to request that it be forwarded to ORG ... for the consideration of ORG .", "At all stages the complaint is to be given immediate attention ...", "NORP If the complaint is against a committed sentence of detention it is essential that this expeditious handling procedure is observed so that , if any authority decides to uphold the complaint , the rating concerned may be released without delay . ... ”", "ORG . Review of summary sentences", "Whether in pursuance of a complaint made under DATE or otherwise , any ORG or ORG may exercise any of the powers conferred by section CARDINAL(CARDINAL ) of < the DATE LAW to annul or otherwise alter the sentence at a summary trial if :", "a. he is satisfied by information available to him but not available to the officer who awarded the sentence , either", "( CARDINAL ) that an offence of which the accused was convicted was not committed by him ( in which case action to have the conviction quashed must also be taken < pursuant to > CARDINAL ) ; or", "( CARDINAL ) that the punishment is too severe and the accused should not be required to undergo that part of the punishment which is considered too excessive .", "b. a sentence is for any reason invalid .", "c. the report made in accordance with CARDINAL indicates that an unjustifiable punishment has been awarded summarily to a rating who would , had the circumstances permitted , have had the right to be tried by court - martial .", "Review of summary convictions by Commanders - in Chief , ORG or ORG or ORG", "The powers conferred by sections CARDINAL and CARDINAL of the < CARDINAL Act > to quash or otherwise alter a conviction ... at a summary trial may be exercised by Commanders - in Chief or , when authorised ... , by ORG or , when authorised ... , by ORG , the Flag Officer Surface Flotilla or ORG , where they consider that such action is appropriate . ”", "Paragraph CARDINAL of ORG provides that solicitors and barristers should not appear at summary trials and that , in particular , an accused has no right to request legal representation at such a trial . If an accused requests legal representation , the Commanding Officer should consider whether justice requires , having regard to the gravity and nature of the offence , that the accused should alternatively be tried by court - martial . The accused ’s Divisional Officer and witnesses can attend the summary trial ( paragraph CARDINAL ) .", "No time - limit applies to complaints made pursuant to the above provisions except that the right to make a complaint is retained only as long as the person concerned is “ subject to ” LAW , namely , while the individual remains in service . It was , nevertheless , at the relevant time the policy of ORG as a matter of discretion to consider such a complaint for DATE after a serviceman had ceased to be subject to naval law if the case raised exceptional circumstances and , typically , when new evidence was put forward ." ]

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[ "Under a contract of indefinite duration dated CARDINAL DATE , the applicant was appointed by ORG as accountant in the NORP embassy in GPE . He became head accountant on DATE , when a note by the Ambassador entitled “ ORG at ORG in GPE ” set out the applicant ’s duties as follows :", "“ ( a ) To oversee all the work of the accounts department .", "( b ) To supervise the staff working in that department in respect of the tasks assigned to them , and to ensure compliance with the rules governing working TIME and the volume and distribution of work .", "( c ) The above - mentioned accountant must sign all payment orders , accounting invoices and everything connected with that activity .", "( d ) In addition the accountant is entrusted with the management of administrative tasks .", "( e ) The accountant shall be accountable to his superiors for any shortcomings in respect of everything connected with the work of his department . ”", "On DATE some CARDINAL employees of the ORG signed a statement to the effect that the applicant had , since his appointment , unofficially assumed the role of staff representative , with the result that he had resolved all disputes between the staff and the diplomatic mission for DATE .", "A certificate of employment dated DATE indicates that the applicant “ is employed by the ORG as Head Accountant ” .", "On DATE the applicant ’s contract was terminated on the following economic grounds :", "“ The restructuring of all the ORG ’s departments , in accordance with general instructions from ORG of ORG .", "The ORG is obliged to abolish your post as a result of the new regulations of ORG of ORG . ”", "Disagreeing with the reasons given for the termination , the applicant brought proceedings in ORG ( conseil de prud’hommes ) seeking various sums in compensation for dismissal without genuine or serious cause .", "NORP In a judgment of CARDINAL DATE , ORG began by refusing to allow the objection to admissibility raised by ORG , finding as follows :", "“ A plea of inadmissibility has been raised on grounds of jurisdictional immunity .", "Whilst LAW provides that diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving ORG , and also from its civil and administrative jurisdiction , the latter immunity does not cover actions relating to any professional or commercial activity exercised by the diplomatic agent in the receiving ORG outside his official functions .", "Mr PERSON was recruited and employed in GPE , under a contract of indefinite duration signed in GPE and performing [ sic ] in NORP territory .", "His pay statements bear a ORG [ registration ] number .", "The letter summoning him to a preliminary meeting fully satisfies the provisions of Article L.CARDINAL - CARDINAL - CARDINAL of the Labour Code , indicating that Mr PERSON was entitled to be assisted by a third party from the list kept by the préfecture .", "In the present case , the duties of head accountant entrusted to Mr PERSON GPE in an internal management context fell within the framework of an expressly private - law activity and the jurisdiction of the ordinary NORP courts , as the employer has acknowledged through the above - mentioned elements . ”", "On the merits , ORG found that the termination of the applicant ’s employment “ which was decided abruptly after DATE of irreproachable work without punishment or criticism ” , had not been based on a genuine and serious cause . It awarded the applicant a sum representing DATE of salary by way of compensation for dismissal without a genuine and serious cause , plus compensation in lieu of notice , together with sums in respect of unpaid overtime , time off in lieu that he had not been able to take , DATE leave , and his inability to register with the ORG ( “ Association for employment in industry and commerce ” ) from which he was entitled to receive unemployment benefit , amounting to a total of MONEY ( equivalent to MONEY ) . Moreover , ORG ordered the employer to issue the applicant with a certificate of employment and CARDINAL pay statements , failing which it would be fined MONEY per day .", "Disagreeing with the amount of the award , the applicant lodged an appeal against the judgment .", "In a judgment of CARDINAL DATE ORG set aside that judgment , finding as follows :", "“ Admissibility of the claims", "ORG argued that PERSON claims were inadmissible on account of its jurisdictional immunity .", "PERSON challenged the plea of inadmissibility , arguing that such immunity did not extend to proceedings concerning contracts of employment .", "He considers that his duties as head accountant fell expressly within the framework of a private - law activity rather than an activity of governmental authority .", "PERSON claims are directed against ORG , represented by its embassy and its Ambassador in GPE and not against the embassy ’s director himself .", "It must therefore be ascertained whether , in the present case , ORG enjoys the jurisdictional immunity afforded to foreign States .", "PERSON last post was that of head accountant in the embassy ’s accounts department .", "He also assumed certain additional responsibilities : responsibility for administrative matters , responsibility for legal affairs , responsibility for the payment and follow - up of financial contributions concerning ORG , and responsibility for supervising the bank accounts of ORG [ sic ] .", "PERSON , in view of his level of responsibility and the nature of his duties as a whole , did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service .", "He thus participated in acts of governmental authority of ORG through its diplomatic representation in GPE .", "His claims against ORG are thus inadmissible by virtue of the principle of jurisdictional immunity of foreign States . ”", "The applicant appealed against that judgment to ORG . In his full pleadings he challenged the finding that his claims against ORG were inadmissible . He invoked a breach of LAW , on the ground that the judgment had not given sufficient reasons , since the inadmissibility had been based :", "“ on the mere assertion that outside his accounting duties [ he ] assumed responsibilities in administrative matters , legal affairs ... , leading to the conclusion that in view of his level of responsibility and the nature of his duties as a whole , he did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service and participated in acts of governmental authority of ORG ... ”", "He developed his arguments as follows :", "“ The judgment appealed against purportedly applied the principle whereby ‘ foreign ORG and bodies acting for them or on their behalf enjoy jurisdictional immunity not only for acts of governmental authority but also for acts performed in the interest of a public service’ ...", "This principle implies , conversely , that the immunity of the foreign ORG from jurisdiction does not apply , in matters of employment contracts , where the employee had ‘ no particular responsibility in the performance of public service , such that his dismissal constituted an act of GPE ...", "That was precisely the situation of [ the applicant ] , who performed accountancy duties only . ”", "On DATE ORG , ruling in the context of the preliminary admissibility procedure for appeals on points of law , as provided for by Article L. CARDINAL - CARDINAL of LAW , held that the ground of appeal was “ not such as to warrant admitting the appeal on points of law ” .", "State immunity from jurisdiction is governed by customary international law , the codification of which is enshrined in LAW and their Property of DATE ( “ the DATE Convention ” ) . The principle is based on the distinction between acts of sovereignty or authority ( acte jure imperii ) and acts of commerce or administration ( acte jure gestionis ) .", "LAW of the convention reads as follows :", "“ CARDINAL . Unless otherwise agreed between the GPE concerned , a ORG can not invoke immunity from jurisdiction before a court of another ORG which is otherwise competent in a proceeding which relates to a contract of employment between the ORG and an individual for work performed or to be performed , in whole or in part , in the territory of that other ORG .", "Paragraph CARDINAL does not apply if :", "( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority ;", "( b ) the employee is :", "( i ) a diplomatic agent , as defined in LAW ;", "( ii ) a consular officer , as defined in LAW of DATE ;", "( iii ) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission , or is recruited to represent a ORG at an international conference ; or", "( iv ) any other person enjoying diplomatic immunity ;", "( c ) the subject - matter of the proceeding is the recruitment , renewal of employment or reinstatement of an individual ;", "( d ) the subject - matter of the proceeding is the dismissal or termination of employment of an individual and , as determined by the head of ORG , the head of ORG or the Minister for ORG of the employer State , such a proceeding would interfere with the security interests of that State ;", "( e ) the employee is a national of the employer ORG at the time when the proceeding is instituted , unless this person has the permanent residence in the ORG of the forum ; or", "( f ) the employer ORG and the employee have otherwise agreed in writing , subject to any considerations of public policy conferring on the courts of the ORG of the forum exclusive jurisdiction by reason of the subject - matter of the proceeding . ”", "In the Draft Articles on Jurisdictional Immunities of States and their ORG , adopted by ORG at its CARDINAL session in DATE , and submitted to ORG at that session , LAW read as follows :", "“ CARDINAL . Unless otherwise agreed between the GPE concerned , a ORG can not invoke immunity from jurisdiction before a court of another ORG which is otherwise competent in a proceeding which relates to a contract of employment between the ORG and an individual for work performed or to be performed , in whole or in part , in the territory of that other ORG .", "Paragraph CARDINAL does not apply if :", "( a ) the employee has been recruited to perform functions closely related to the exercise of governmental authority ;", "( b ) the subject of the proceeding is the recruitment , renewal of employment or reinstatement of an individual ;", "( c ) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded ;", "( d ) the employee is a national of the employer ORG at the time when the proceeding is instituted ; or", "( e ) the employer ORG and the employee have otherwise agreed in writing , subject to any considerations of public policy conferring on the courts of the ORG of the forum exclusive jurisdiction by reason of the subject - matter of the proceeding . ”", "In the commentary on that ORG indicated as follows :", "“ Paragraph CARDINAL ( b ) is designed to confirm the existing practice of GPE in support of the rule of immunity in the exercise of the discretionary power of appointment or non - appointment by the ORG of an individual to any official post or employment position . ... So also are the acts of ‘ dismissal’ or ‘ removal’ of a government employee by the ORG , which normally take place after the conclusion of an inquiry or investigation as part of supervisory or disciplinary jurisdiction exercised by the employer ORG . This subparagraph also covers cases where the employee seeks the renewal of his employment or reinstatement after untimely termination of his engagement . The rule of immunity applies to proceedings for recruitment , renewal of employment and reinstatement of an individual only . It is without prejudice to the possible recourse which may still be available in the ORG of the forum for compensation or damages for ‘ wrongful dismissal’ or for breaches of obligation to recruit or to renew employment . ”", "The DATE Convention on Jurisdictional Immunities of States and their Property was signed by GPE on DATE . The PERSON authorising its ratification is currently being examined by ORG , the ORG having approved the following text at First Reading on DATE :", "“ Single Article", "The ratification of LAW and their Property , adopted on DATE and signed by GPE on DATE is hereby authorised . ”", "For a more comprehensive overview see PERSON v. GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL et seq . , ECHR DATE ... ) .", "ORG considers that a foreign ORG only enjoys jurisdictional immunity when the act giving rise to the dispute is an act of governmental authority or has been performed in the exercise of a public service ( ORG , ORG , CARDINAL DATE , no . DATE , ORG . I , no . DATE ) . In other words it verifies , on a case - by - case basis , whether the act , by its nature or purpose , has contributed to the exercise of the foreign ORG ’s sovereignty , as opposed to an act of administration ( Court of Cassation , Combined Divisions , DATE , appeals ORG . CARDINAL - CARDINAL and CARDINAL , ORG . PERSON . PERSON no . CARDINAL ) .", "Applying this criterion , ORG found that jurisdictional immunity could not be granted in a dispute concerning an embassy employee who had no particular responsibility in the exercise of the public diplomatic service ( ORG , ORG , CARDINAL DATE , appeal no . DATE , ORG . I no . DATE , for a caretaker ; ORG , DATE , appeal no . CARDINAL , ORG . V no . CARDINAL , concerning a nurse - medical secretary ; and ORG , DATE , appeal no . DATE , in respect of a senior clerk in the national section of a consulate ) . The same principle applies where a ORG decides to close a consular mission : whilst it enjoys jurisdictional immunity as regards the assessment of the reasons for the closure decision , the NORP courts retain the power to verify the reality of the closure and to rule on the consequences of any redundancy caused thereby ( Court of Cassation , Employment Division , CARDINAL DATE , appeal no . DATE , ORG . V no . CARDINAL ) .", "The assessment of that criterion , however , falls within the unfettered discretion of ORG for the final decision on the facts and evidence ( Court of Cassation , ORG , DATE , appeal no . DATE , concerning a translator in the passport office ) .", "The relevant provision of LAW reads as follows :", "“ Judgments shall set forth succinctly the respective claims of the parties and their grounds . Such presentation may take the form of a reference to the pleadings of the parties with an indication of their date . Judgments shall be reasoned .", "They shall state the decision in an operative paragraph . ”" ]

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[ "The applicants , Mr PERSON , PERSON , PERSON PERSON NORP , PERSON and PERSON are CARDINAL NORP nationals . They are represented before the ORG by Mr G. de GPE , a lawyer and justice of the peace ( giudice di pace ) practising in GPE ( GPE ) .", "The respondent Government were initrially represented by their Agents , respectively PERSON and Mr PERSON , and then by their co - Agents , respectively Mr PERSON and Mr PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants are the owners of a flat in GPE , which they had let to ORG", "In a registered letter of DATE , the applicants informed the tenant that they intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .", "In a writ served on the tenant on DATE , the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Sorrento Magistrate .", "By a decision ( ordinanza ) of DATE , which was immediately enforceable , the ORG Magistrate provisionally ordered that the LOC be vacated by DATE and adjourned the case to CARDINAL October CARDINAL in order to examine the objections of the tenant .", "At the hearing of CARDINAL DATE , the representative of the applicants requested that a date be set for a hearing so that he could make his submissions . The case was adjourned to CARDINAL DATE .", "At the hearing of CARDINAL DATE , the representatives of the parties both requested that a date should be set for a hearing so that they could make their submissions . The case was adjourned to DATE .", "At the hearing of DATE , the representatives of the parties both asked for time . The case was adjourned to CARDINAL DATE .", "At the hearing of CARDINAL DATE , the representative of the tenant asked for time . The case was adjourned to CARDINAL DATE .", "At the hearing of CARDINAL DATE , the representative of the parties both filed their submissions . The case was adjourned to DATE .", "At the hearing of DATE , the representative of the applicant asked for time . The case was adjourned to CARDINAL DATE when the GPE Magistrate considered the case to be ready for a decision .", "By a decision of CARDINAL DATE , which was made enforceable on DATE , the Sorrento Magistrate upheld the validity of the notice to quit , declared that the decision ( ordinanza ) of CARDINAL DATE was absorbed and ordered that the premises be vacated DATE after the publication of the decision .", "On DATE , the tenant appealed against this decision to ORG .", "By decision of DATE , filed with the registry on CARDINAL DATE , ORG declared that it was not competent to examine the matter , following which the tenant resumed the proceedings before ORG .", "On DATE , on the basis of the order for possession issued by the Sorrento Magistrate on DATE , the applicants served notice on the tenant requiring her to vacate the LOC .", "On an unspecified date , they informed the tenant that the order for possession would be enforced by a bailiff on DATE .", "On DATE , the tenant opposed the notice of CARDINAL DATE before the GPE court of PERSON on the ground that the decision of the ORG Magistrate of CARDINAL DATE was not yet enforceable as the appeal against it was still pending .", "On DATE , on the basis of the decision issued by the GPE Magistrate on CARDINAL DATE , the bailiff made an attempt to recover possession of the flat which proved unsuccessful , as the applicants were not entitled to police assistance in enforcing the order for possession .", "By a decision of DATE , filed with the registry on DATE , the Torre Annunziata Magistrate annulled the notice on the ground that the decision of the Sorrento Magistrate was not yet enforceable , since the proceedings were still pending on appeal .", "DATE and DATE , on the basis of the decision issued by the NORP Magistrate on DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicants were not entitled to police assistance in enforcing the order for possession .", "By a decision of DATE , filed with the registry on DATE , ORG rejected the appeal of the tenant and confirmed the decision of the Sorrento Magistrate of CARDINAL DATE .", "On DATE , on the basis of the decision issued by ORG on DATE , the applicants served notice on the tenant requiring her to vacate the LOC .", "On an unspecified date , they informed the tenant that the order for possession would be enforced by a bailiff on DATE .", "On DATE , pursuant to section CARDINAL of Law No . CARDINAL , the tenant asked ORG to set a new date for the enforcement of the order for possession . The date was set for DATE .", "On DATE , the bailiff made CARDINAL attempt to recovered possession of the flat which proved unsuccessful as the applicants were not entitled to police assistance in enforcing the order for possession .", "On DATE , the applicants recovered possession of the flat ." ]

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[ "The applicants , ORG and FAC , are NORP nationals , who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "On an unspecified date ORG , the first applicant ’s father and the second applicant ’s husband , entered into an employment contract with ORG , registered in GPE , pursuant to which he was employed as a sailor on a vessel for DATE starting from DATE . The contract specified that the employer ’s insurance covered death in service and that the contract was governed by the laws of GPE , and designated GPE , GPE as the forum for dispute resolution . The vessel was insured in GPE .", "On DATE J.K.D. died while the vessel was in LOC .", "The applicants brought a civil action in ORG ( PERSON u ORG ) on CARDINAL DATE against the owner of the ship and the insurance company . They sought damages in connection with the death of their husband and father , claiming that his death had occurred as a result of a lack of adequate medical treatment . As regards the jurisdiction of the NORP courts in the matter , they considered that where a death had occurred outside the territory of GPE , the NORP courts had jurisdiction because the actual damage – the suffering of the deceased ’s close relatives residing in GPE caused by the death and the resulting loss of support – nonetheless occurred in GPE .", "On DATE the ORG awarded the applicants ORG CARDINAL,CARDINAL and rejected the rest of their claim of ORG CARDINAL,CARDINAL . That judgment was upheld by ORG ( ORG trgovački sud PERSON ) on DATE .", "On DATE the defendants lodged an appeal on points of law with ORG ( PERSON ) .", "At a plenary session of ORG of ORG on DATE , ORG endorsed its previous practice concerning claims for damages in connection with the death of a close relative which occurred outside GPE . According to that approach , the NORP courts had no jurisdiction in such matters . The explanation for this was that where a death had occurred outside GPE the associated damage had also occurred outside GPE . As the jurisdiction of the NORP courts depended on the question of where damage had occurred , in cases where a death ( and therefore the resulting damage ) had occurred outside GPE , the NORP courts did not have jurisdiction , even when the claimant was a NORP national .", "Pursuant to that approach , on DATE ORG declared the applicants’ civil action inadmissible for lack of jurisdiction . The relevant part of the decision reads :", "“ The dispute concerns non - contractual liability for damage with a foreign element . Therefore , section CARDINAL(CARDINAL ) of LAW ( the “ Act ” ) ... is relevant to the question of whether the NORP courts have jurisdiction in the matter .", "Under section CARDINAL(CARDINAL ) of the LAW , in disputes concerning non - contractual liability for damage the NORP courts have jurisdiction if it is prescribed under sections DATE and CARDINAL of that Act or if the damage was caused on NORP territory .", "Jurisdiction for this dispute is not prescribed under sections DATE and CARDINAL of the Act , and therefore it must be assessed whether the damage was caused on NORP territory .", "As to the question of where the damage occurred within the meaning of LAW , the plenary session of CARDINAL DATE of ORG of this court took the view that the occurrence of damage comprises .... death ... , and that where the damage concerns .... the death of a person abroad , then it is to be understood that the damage the claimant is seeking in that connection occurred abroad , irrespective of the fact that certain categories of damage occurred in GPE .", "Therefore , [ in accordance with ] section CARDINAL(CARDINAL ) of the LAW courts do not have jurisdiction in this dispute .", "... ”", "On DATE the applicants lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against the above judgment of ORG which was dismissed on DATE .", "The relevant provision of LAW ( Zakon o rješavanju sukoba zakona s propisima drugih zemalja u određenim odnosima , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL DATE “ the LAW ” ) reads as follows :", "“ ( CARDINAL ) The NORP courts have jurisdiction in cases concerning claims for damages if ... the damage was caused on NORP territory .", "... ”", "NORP The relevant part of judgment no . Rev-CARDINAL/CARDINAL - CARDINAL of ORG of DATE reads :", "“ ... According to the reasoning of the lower courts , which this court also endorses , damage is caused , within the meaning of [ section CARDINAL(CARDINAL ) of the LAW ] , when [ a person ] has been injured , death has occurred or an object has been damaged ...", "The event at issue ( a road accident ) , concerning the person in respect of whose death the claimants brought their action , occurred in GPE , and therefore the damage was caused in GPE and not in GPE .", "It follows that the courts correctly interpreted section QUANTITY and that they therefore ... rightly declared the civil action inadmissible for lack of jurisdiction . ”", "The relevant part of Practice Direction no . PERSON - IV-CARDINAL/CARDINAL of ORG of ORG of DATE reads as follows :", "“ ... ORG confirms its practice [ stated in ] judgment MONEY of DATE , published in ORG DATE [ on DATE ] , which reads :", "The damage was caused when the [ person ] was injured , death occurred or an object was damaged .", "Therefore , if the event at issue , concerning the person in respect of whose death the claimants brought their action , occurred abroad , the damage also occurred there , disregarding the fact that the expenses of the burial occurred in GPE . ”" ]

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[ "PERSON is an association of artists with its seat in the NORP building in GPE . The Secession , an independent gallery , is devoted entirely to exhibitions of contemporary article One of the basic objectives of the association is to present current developments in NORP and international art , and to cultivate an openness to experimentation .", "DATE and DATE the applicant association held an exhibition on its LOC . The exhibition , entitled “ DATE of artistic freedom ” ( “ PERSON künstlerischer PERSON ) , was intended as part of the celebrations of the association 's CARDINALth anniversary . Among the works to be shown was a painting entitled “ Apocalypse ” , which had been produced for the occasion by the NORP painter PERSON . The painting , measuring QUANTITY by QUANTITY , showed a collage of various public figures , such as GPE , the NORP cardinal PERSON GPE and the former head of ORG ( ORG ) Mr PERSON PERSON , in sexual positions . While the naked bodies of these figures were painted , the heads and faces were depicted using blown - up photos taken from newspapers . The eyes of some of the persons portrayed were hidden under black bars . Among these persons was PERSON , a former general secretary of the ORG until DATE , who at the time of the events was a member of ORG ) , a mandate he held until DATE . Mr PERSON was shown gripping the ejaculating penis of PERSON PERSON while at the same time being touched by CARDINAL other ORG politicians and ejaculating on Mother LAW .", "The exhibition , for which admission was charged , was open to the public .", "On DATE , while the exhibition was in progress , the NORP newspaper PERSON bristled at the above painting 's portayal of “ group sexual situations with ORG and GPE ” .", "On DATE the painting was damaged by a visitor , who covered with red paint the part which showed , among others , Mr Meischberger . As a consequence of this incident the entire painted body of PERSON and part of his face were covered with red paint .", "NORP Several NORP newspapers reported on this event and also published pictures of the painting .", "On DATE Mr Meischberger brought proceedings under section CARDINAL of LAW ( Urheberrechtsgesetz ) against the applicant association , seeking an injunction prohibiting it from exhibiting and publishing the painting . He further requested compensation in the amount of CARDINAL NORP schillings ( ORG DATE ( ORG ) ) . He argued that the painting , showing him in sexual positions with several persons , debased him and his political activities and made statements as to his allegedly loose sexual life ( lotterhaftes PERSON ) . The black eye - bars did not prevent him from being recognised , because he was shown together with CARDINAL other ORG politicians . He remained recognisable even after the incident of CARDINAL June DATE , which had further increased the publicity given to the painting . Furthermore , there was a danger of recurrence as after the present exhibition the painting was due to be shown at another exhibition in GPE .", "On DATE ORG ( ORG ) dismissed PERSON action . It noted that it had initially been intended to show the exhibition in GPE , GPE and GPE as well ; now the intention was to close down the exhibition . The court further found that it could be ruled out that the painting had adversely affected the claimant or divulged information about his private life , as the painting , which resembled a comic strip ( “ comixartig ” ) , obviously did not represent reality . However , a painting showing the claimant in such an intimate position could , regardless of its relation to reality , still have a degrading and personally debasing effect . In the present case , however , the right of the applicant association to freedom of artistic expression outweighed Mr PERSON 's personal interests . When balancing the latter 's interests against the interests of the applicant association , the court had regard in particular to the fact that the exhibition was dedicated to the association 's artistic spectrum over DATE , which included the work of the NORP painter PERSON . It further noted that the painting showed numerous other persons , among them friends and benefactors of the painter , and also representatives of the ORG party , which had always strongly criticised Mr Mühl 's work .", "The painting in question could therefore be seen as a kind of counter - attack ( ORG ) . In any event , PERSON picture constituted only a rather small part of the painting and was therefore not striking . The court further added that there appeared to be no danger of recurrence ( PERSON ) as the painting had been partly covered by red paint and PERSON was therefore no longer recognisable on it .", "On DATE ORG ( Oberlandesgericht ) , after having held an oral hearing , granted an appeal on points of law and fact by PERSON , issued an injunction against the applicant association prohibiting it from continuing to display the painting at exhibitions , and ordered it to pay the costs incurred by Mr Meischberger in the proceedings and ORG CARDINAL ( EUR CARDINAL ) , plus PERCENT interest with effect from DATE , in compensation . It further allowed Mr Meischberger to publish extracts of its judgment in CARDINAL NORP newspapers . It noted that Mr PERSON 's picture was only partly covered by red paint , so that part of his face , the shape of his head and his hairstyle were still recognisable . The limits of artistic freedom were exceeded when the image of a person was substantially deformed by wholly imaginary elements without it being evident that the picture aimed at satire or any other form of exaggeration . The painting in the present case was not intended to be a parable or even an exaggerated criticism conveying a basic message , such as , for example , the statement that PERSON had disregarded sexual decency and morals . It therefore did not fall within the scope of LAW , but in fact constituted a debasement of Mr PERSON 's public standing ( Entwürdigung öffentlichen Ansehens ) . The applicant association could not justify the exhibition of the painting under the artistic freedom protected by LAW ) . There was , furthermore , nothing to indicate that the applicant association would abstain from exhibiting the painting in the future , so that there was a danger of recurrence .", "On DATE ORG ( Oberster Gerichtshof ) rejected an appeal by the applicant association as it did not concern a legal question of considerable interest . It noted that ORG had not questioned the fact that the painting fell within the scope of protection provided by LAW but , weighing the guarantee of artistic freedom enshrined in that provision against Mr PERSON 's personal rights as protected by section CARDINAL of LAW , had considered that the latter prevailed over the former because a picture of Mr Meischberger had been used in a degrading and insulting manner . As to the question whether PERSON could still be recognised despite the painting being covered with red paint , ORG had not contradicted the documents contained in the court file and there was therefore no need for a rectification . It ordered the applicant association to pay the costs of the proceedings .", "That decision was served on the applicant association 's counsel on CARDINAL DATE .", "Section CARDINAL of LAW , in so far as relevant , reads as follows :", "“ ( CARDINAL ) Images of persons shall neither be exhibited publicly , nor in any way made accessible to the public , where injury would be caused to the legitimate interests of the portrayed persons or , in the event that they have died without having authorised or ordered publication , those of a close relative . ”", "Artistic freedom is guaranteed by DATE LAW Staatsgrundgesetz ) , which provides :", "“ There shall be freedom of artistic creation and of the publication and teaching of article ”" ]

[ "10" ]

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[ "The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr S. Purchas , a solicitor practising in GPE .", "In DATE , the applicant was sentenced to DATE imprisonment for supplying heroin .", "On DATE , at the CARDINAL point of his sentence , the applicant was released on licence , pursuant to section CARDINAL of LAW DATE . The licence expiry date was set at DATE , the CARDINAL point of his sentence ( section CARDINAL of LAW DATE ) .", "The licence conditions included that he live “ where reasonably approved by [ his ] supervising officer and notify him or her in advance of any proposed change of address ” . A separate condition required him to live at his mother 's address and not to live elsewhere without the prior approval of his supervising officer . The applicant owned a house in GPE , GPE . The licence condition was designed to reduce contact with his erstwhile partner A. , a drug addict who lived at that address , with his daughter PERSON and her other daughter . He was allowed to visit his daughter PERSON at that address .", "In DATE , A. left the ORG house and did not return . The applicant moved in to look after the children , there being insufficient room at his mother 's home .", "On DATE , at his next probation appointment , the applicant informed his probation officer that he had moved . The applicant states that no action was taken or direction given that he leave the address .", "The applicant states that allegations of domestic violence were made by A. to her own probation officer , although not to the police . On the basis of these allegations , a request was made by senior probation officers ( not including the applicant 's ) that he be recalled to prison for breach of his licence conditions .", "On DATE , the applicant was recalled to prison for breach of the residence condition in his licence by the ORG Secretary under section CARDINAL of LAW DATE . In the document setting out the reasons for recall , it was stated that he was recalled because he had moved without prior approval and the risk that he posed because of his antecedents and his behaviour in moving meant that it was not right for him to remain on licence .", "On DATE , the applicant 's solicitors made representations to ORG which had the power to order his release , in which he inter alia denied the allegations of domestic violence and alleged that the decision to recall was based on insufficient information , largely an unreliable account of ORG and without any investigations being carried out .", "On DATE , the applicant was informed that his representations had been rejected . The decision stated that the applicant had clearly breached the conditions of his licence by not residing at his mother 's address as instructed , nor had he notified his supervising officer in advance of his proposed change of address . The condition had been specifically inserted in his licence to reduce contact with his ex - partner . This failure to comply with the licence conditions suggested that the objects of probation supervision had been undermined .", "The applicant instituted proceedings for judicial review , challenging that decision as unlawful , disproportionate or unreasonable and as following an unfair or unlawful process ; he argued that both the common law and Articles CARDINAL , CARDINAL and DATE of the ORG had been breached and sought damages .", "On DATE , the High Court judge refused permission , finding that ORG had not revoked his licence because of allegations by ORG or suspicions as to drug - taking . He noted that the reasons given were clear , that the applicant had notified the probation service after the event and the condition had been inserted to prevent / reduce contact with A. He held that the ORG was entitled to regard the breach of the condition in those circumstances as justifying recall .", "The applicant 's renewed application was rejected by a different High Court judge on DATE . He noted a report prepared for ORG prior to his release which stated :", "“ Although there are no current drug concerns it would be unrealistic to suggest that [ the applicant ] will not be ' at risk ' post release . An additional licence condition to initially reside at his parents ... and not to move in with his partner PERSON until he has demonstrated that he has remained drug - free for a significant period and she has overcome her own drug problem seems appropriate . Although such a condition would not prevent him seeing PERSON and providing support to his children , it would allow ORG to monitor the situation closely . ”", "The judge found nothing unfair in the procedure whereby ORG rejected the applicant 's representations and held that although the decision was harsh it was impossible to say that it was arguably irrational : ORG had known all the facts and the fact that the girl friend was not at the address when he moved there did not entitle him to breach his licence .", "On DATE , ORG refused permission to appeal . The judge stated :", "“ The procedure was fair . The Appellant broke a condition of residence which was important and of which he was well aware . He was given the opportunity to make representations and the representations he made were considered . The decision did not depend on the truth of the allegations made by Ms. PERSON and ORG was right not to attempt any investigation of her allegations . The reasons given for the decision were adequate and ... rational . Even if it could be argued that it was harsh , it was not disproportionate . ”", "Concerning the applicant 's arguments under the ORG , the judge referred to domestic case - law on the point ( see below ) .", "On DATE , ORG refused to fund a renewed application to ORG .", "On DATE , NORP ( West ) v. ORG ( [ DATE ] Prison Law Reports DATE , ORG rejected , by CARDINAL votes to one , the argument that the recall of a prisoner on licence who has been serving a determinate sentence amounted to a determination of a criminal charge for the purposes of LAW .", "On DATE , in NORP ( PERSON ) v. ORG ( [ DATE ] EWCA CARDINAL ) , ORG held that neither LAW nor the civil provisions of LAW were engaged by recall of a prisoner on licence serving a determinate sentence ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is the owner of a flat in GPE , which he had let to A.R.", "In a writ served on the tenant on DATE , the applicant communicated his intention to terminate the lease and summoned the tenant to appear before ORG .", "By a decision of DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .", "On DATE , the applicant served notice on the tenant requiring him to vacate the premises .", "On DATE , he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .", "DATE and DATE , the bailiff made CARDINAL attempts to recover possession .", "Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .", "In the meantime , on DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter", "Pursuant to LAW no . DATE , the enforcement proceedings were suspended .", "At DATE the tenant vacated the flat .", "The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and formerly lived in ORG .", "On DATE , ORG responsible for the application of LAW CARDINAL/CARDINAL ( “ the local commission ” ) issued in the applicant 's favour an ownership certificate ( “ adeverinţă de proprietate ” ) for a plot of land measuring QUANTITY located in the city of ORG , but did not put him into possession of the land .", "The applicant brought administrative proceedings against the local commission , seeking to take possession of the land granted to him by the ownership certificate . On DATE , ORG allowed the action and ordered the local commission to enable him to take possession of the land on the original placement held by his father . That judgment became final .", "In DATE , the applicant filed another action against the local commission , ORG responsible for the application of PERSON CARDINAL/CARDINAL ( “ the county commission ” ) and a natural person , PERSON , seeking to take possession of the CARDINAL hectares of land , to obtain the ownership title for that land and the partial annulment of an ownership title issued in favour of GPE for the area of QUANTITY that should have been restored to him in accordance with the final judgment of DATE . ORG of ORG allowed the action on DATE . Appeals filed by the commissions and ORG were dismissed by ORG on DATE . By a decision of DATE , ORG allowed an appeal on points of law filed by the commissions , quashed the decision rendered in appeal and remitted the file to GPE for a fresh examination of the appeals . The appeals were again dismissed on DATE . On DATE , ORG allowed the appeal on points of law filed by the local commission . It partially dismissed the action filed by the applicant with respect to the obligation of the commissions to authorise him to take possession of the land and to issue the ownership title , on the ground that the judgment of DATE rendered in his favour had the force of res judicata .", "By an interlocutory judgment of DATE , ORG allowed the applicant 's claim for the payment of CARDINAL NORP lei ( ROL ) in damages per day of delay until the enforcement of the final judgment of DATE .", "In DATE , the applicant filed another action against the local commission seeking to obtain payment by the latter of damages for the loss of profit caused by the non - enforcement of the final judgment of DATE . On DATE , ORG partially allowed the applicant 's claim and awarded him CARDINAL ROL . The judgment was upheld by ORG on DATE .", "On DATE , the county commission issued CARDINAL ownership titles , but for other plots of land than those to which the applicant was entitled . The applicant lodged an action seeking to obtain the annulment of the ownership titles and new ownership titles in accordance with the judgment of DATE , namely on the former placement . During the proceedings , on DATE , the applicant died and his daughter , Ms PERSON , expressed her wish to pursue the action . ORG allowed the applicant 's claim on DATE . It ordered the county commission to issue on behalf of the applicant 's daughter an ownership title for QUANTITY of land on the former placements . The judgment became final .", "Following the judgment of DATE , the local commission authorised the applicant to take possession of the land , a minute ( proces verbal ) being drafted to that effect on DATE .", "NORP On DATE , ORG forwarded to ORG ( PERSON şi ORG ) all the documents necessary for the issue of the ownership title in accordance with the judgment of DATE .", "The proceedings for the issue of the ownership title are pending . So far the applicant 's daughter has not received an ownership title .", "The relevant domestic law is summarised in the judgments of PERSON PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) and Drăculeţ v. GPE , no . GPE , § CARDINAL , DATE ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicants were born in DATE , DATE and DATE respectively . They all live in GPE .", "On an unspecified date in DATE the first applicant , represented by the third applicant , filed with ORG an application under LAW of DATE on the ORG ( “ the GPE ” ) for the recovery of maintenance from his father , TIME , a NORP national . The first applicant requested that the NORP authorities institute court proceedings with the aim of recovering the maintenance and enforce any decision that might be given by the NORP courts .", "On DATE ORG , acting as the ORG under the New York Convention , transmitted the application to ORG ( “ the NORP Ministry ” ) , which acted as ORG .", "On DATE the ORG informed ORG that the debtor had been summoned but had failed to appear , and that the case had been referred to ORG of ORG for further action .", "On DATE ORG wrote to ORG requesting information about the progress in the recovery of the maintenance . It appears that in reply the NORP Ministry resent its letter of CARDINAL DATE .", "On DATE , in response to the query from ORG , the third applicant informed the court that the first applicant had not received any maintenance payments from the debtor .", "On DATE ORG requested ORG of ORG to intervene in the case . ORG requested the assistance of ORG in GPE .", "On DATE the third applicant and TIME signed an agreement stipulating that DATE would pay MONEY ( CARDINAL ORG ) in maintenance to the first applicant DATE for DATE .", "On DATE the third applicant again informed ORG that she had not received any maintenance payments from the debtor .", "On DATE , upon a request filed by the first applicant , the ORG once again requested ORG Ministry of ORG to intervene in the proceedings .", "On DATE the ORG informed ORG that the third applicant had hired a NORP lawyer to act in the divorce and maintenance proceedings . In the lawyer ’s opinion , there were good prospects of reaching a friendly settlement in the case . Consequently , ORG considered that its intervention at that point was not required . However , it would continue to monitor the situation and inform the ORG of any further developments . The applicant contested ORG assertion that she had hired a NORP lawyer .", "On DATE acknowledged before a notary his intention to pay MONEY in DATE maintenance to the first applicant until he reached DATE . He also promised to pay MONEY ( CARDINAL ORG ) for the period up to DATE . The DATE maintenance payments were to be deposited on an account at ORG . This notarial deed was declared enforceable .", "On DATE the Greek Ministry informed ORG that TIME had acknowledged his obligation to pay maintenance to the first applicant . It requested ORG to provide it with several additional documents , including the first applicant ’s birth certificate and a certificate of his residence , in order for it to proceed with the transfer of the maintenance to GPE .", "On DATE ORG sent the requested documents to ORG .", "ORG transmitted the requested documents to ORG of ORG DATE . On DATE that authority informed ORG that the debtor had deposited MONEY on a bank account on DATE . On DATE the said authority requested the debtor to inform it whether he had made any further payments to the account . The debtor replied that he had been making agreed DATE payments to the account and produced documentary evidence to this effect .", "In the course of divorce proceedings instituted by the third applicant against TIME , on DATE FAC delivered an interim order awarding maintenance payments by TIME to the first applicant . The court noted that TIME ’s place of residence was unknown . On DATE the court increased the amount of maintenance payments .", "On DATE and DATE ORG wrote to ORG requesting it to provide information about the progress of the proceedings . It appears that no reply was received to these letters . On DATE ORG sent another request for information . It noted that on DATE ORG had issued a divorce decree in default , dissolving the third applicant ’s marriage to TIME", "On DATE the ORG informed ORG that the first applicant had received a payment of MONEY ( CARDINAL EUR ) in DATE . According to the agreement between the parties , this amount was supposed to cover the maintenance due for the period from DATE to DATE .", "On DATE ORG informed the third applicant about the letter of DATE and requested her to submit comments . On DATE the third applicant informed the court that the amount of MONEY covered only the period DATE and that she intended to lodge a claim for non - received maintenance from DATE .", "On DATE FAC gave a judgment in default , increasing the amount of the maintenance payments to be made to the first applicant by TIME", "On DATE ORG again requested assistance from ORG . The court informed ORG of the debtor ’s single payment made in DATE . The court also informed ORG that CARDINAL judgments in default had so far been given in GPE ordering TIME to pay maintenance , and that on the basis of those judgments the first applicant had been able to receive substitute maintenance from the “ FAC ” ( ORG ) . In case of the lack of reaction from the debtor , the third applicant would have to request the enforcement of the NORP judgments in GPE on the basis of the bilateral agreement . No reply was received from the NORP authorities to that letter .", "On DATE ORG informed the third applicant that in order to recover the maintenance due to the first applicant it was necessary for her to file a request with ORG for the recognition and the enforcement in GPE of the NORP judgments awarding the maintenance , on the basis of ORG October CARDINAL between the Polish GPE and GPE on legal cooperation in civil and criminal matters ( “ the DATE Agreement ” ) . The first applicant filed such a request on DATE .", "On DATE ORG requested the assistance of ORG .", "On DATE the NORP ORG requested ORG to assist the first applicant in obtaining the recognition and enforcement in GPE of FAC judgment in default of DATE .", "By a letter of CARDINAL July CARDINAL , ORG informed ORG that it refused to proceed with the request for the recognition and enforcement of the NORP judgment in question . ORG explained that the request could not be allowed due to LAW . This provision stipulated that a request for recognition and enforcement could be refused in GPE if the NORP courts had the sole jurisdiction to examine the matter . Consequently , ORG returned the request , along with the entire case file , to ORG .", "On DATE ORG wrote to ORG noting ORG position expressed in its earlier letter and requesting it to urgently proceed with the recovery of the maintenance due to the first applicant in accordance with the New York Convention .", "On DATE ORG responded by reasserting the position expressed in its letter of CARDINAL July CARDINAL and confirming that the entire case file had been returned to ORG on DATE .", "On DATE FAC gave another judgment in default increasing the amount of the maintenance payments to the first applicant .", "On DATE the ORG requested ORG to provide it with information as to the progress of the proceedings and as to the prospects of a successful recovery of maintenance . On DATE the Greek Ministry replied by re - sending their letter of CARDINAL DATE .", "On DATE the ORG requested the ORG of ORG ( “ the International Law Department ” ) to provide it with legal advice as to the further steps necessary to recover the maintenance due to the first applicant .", "On DATE ORG advised the ORG to file a new request with the NORP authorities under LAW . It observed that the prospects of a successful recovery of the maintenance on the basis of the request filed in DATE were poor , given the lack of a proper response from the NORP authorities . It further informed ORG that there appeared to be no obstacles to the first applicant requesting the recognition and enforcement of ORG judgment given on DATE directly before NORP courts , on the basis of LAW of DATE on ORG and the Enforcement of Judgments in Civil and Commercial Matters ( “ LAW ” ) provided that the conditions specified in that convention had been fulfilled .", "On DATE the ORG delivered yet another judgment in default , again increasing the amount of the maintenance due to the first applicant .", "On DATE ORG sent to the NORP authorities a new request filed by the first applicant under LAW , asking the NORP authorities to recover maintenance in respect of the period from DATE . In the same letter , the ORG also requested the NORP authorities to recognise and enforce the NORP judgment of DATE under the ORG .", "On DATE the NORP Ministry informed ORG that its request for the recovery of maintenance under the ORG could not be accepted , because under LAW ( CARDINAL ) of that convention only NORP private international law was applicable . Consequently , the NORP court which had given the judgment awarding maintenance to the first applicant had had no jurisdiction to do so since at the time of filing the action the debtor had had his permanent residence in GPE . ORG returned the entire request together with all attachments .", "On DATE the ORG requested the ORG to provide it with a legal opinion as to the correctness of ORG position .", "On DATE ORG stated that the position of ORG was incorrect and that the Lugano Convention , which was binding on both GPE and GPE , did not allow GPE to invoke the sole jurisdiction of the NORP courts as an obstacle to the recognition and enforcement of NORP judgments . It noted that LAW replaced LAW . ORG further noted that it would perhaps be quicker for the first applicant to send a request for recognition and enforcement under LAW directly to the competent court in GPE . Alternatively , it advised ORG to resubmit its request to ORG .", "On DATE ORG sent another request for the recognition and enforcement in GPE of the judgment of the FAC of DATE on the basis of the ORG . In the same letter , it reminded ORG about the request lodged under ORG and requested the recovery of the maintenance due from DATE first request filed in DATE . No reply to that request was received . Enquiries with the NORP postal service revealed that the letter had been served on ORG on DATE .", "Meanwhile , on DATE ORG sent the first applicant ’s file to ORG in order for them to proceed with the enforcement of FAC judgment of DATE . On DATE ORG transmitted the case to ORG of ORG .", "On DATE ORG again sent a letter to ORG . No reply to that letter was received .", "On DATE the President of ORG requested ORG in GPE to intervene in the case .", "On DATE ORG asked ORG for a certificate proving that TIME had been informed of the request which had commenced the proceedings terminated by the judgment of DATE . Such a certificate was necessary to start recognition and enforcement proceedings on the basis of ORG .", "On DATE ORG forwarded the requested documents to ORG .", "On various dates in DATE , at the request of the third applicant , ORG attested that she had not received any maintenance payments due to the first applicant . The third applicant needed the confirmation to receive substitute maintenance .", "On DATE the NORP authorities lodged a request for the recognition and enforcement of the judgment of DATE with ORG . The first hearing , scheduled for DATE , was adjourned until DATE .", "DATE . On DATE ORG asked ORG to provide it with further information as to the progress of the proceedings . On DATE the Greek Ministry replied that ORG would examine the case on DATE .", "The hearing set for DATE was adjourned owing to elections . Upon a request from the NORP authorities a further hearing was scheduled for DATE . It was then postponed on account of the friendly - settlement negotiations between the parties .", "On DATE ORG asked ORG to inform it of the results of the court hearing .", "On DATE the Greek Ministry informed ORG that on DATE the third applicant had reached an agreement with TIME Under the terms of that agreement TIME was to pay MONEY to the first applicant as a final settlement of the sums of maintenance awarded by the NORP court up to CARDINAL DATE . The third applicant declared that she would withdraw her request to enforce the judgment of DATE .", "On DATE the third applicant declared that TIME had paid his debts up to DATE but had not made any payments for the period DATE , and that he was not paying the current instalments .", "On DATE the third applicant declared that TIME had paid part of his debt for DATE ( ORG CARDINAL ) but he had not paid the interest .", "On DATE the third applicant informed ORG that the case could be closed . On DATE the case was closed by ORG . The latter court informed ORG that the recovery proceedings under LAW were terminated .", "On DATE the first applicant filed a complaint under LAW of DATE on complaints concerning a breach of the right to a trial within a reasonable time ( “ the CARDINAL Act ” ) . He alleged that the length of the proceedings for the recovery of maintenance instituted in DATE on his behalf by his mother on the basis of ORG had been excessive . He also claimed compensation in the amount of MONEY ( ORG ) . The applicant explained that he had not been able to recover any maintenance from his father , despite the fact that several judgments awarding maintenance had been handed down in GPE and despite ORG repeated attempts to intervene with the NORP authorities .", "On DATE ORG rejected the applicant ’s complaint . It recalled that a mere reference to the overall duration of the proceedings did not suffice for a conclusion that their length had been excessive and that the applicant had failed to sufficiently specify the omissions or delays attributable to the lower court . It further observed that , in any event , ORG role as the ORG in the impugned proceedings under the GPE had been limited solely to carrying out technical and organisational tasks , which ORG had duly done .", "On DATE Y.M. , a NORP national , was declared the father of the second applicant by FAC . He was further ordered to pay DATE maintenance in the amount of ORG .", "On DATE the second applicant , represented by his mother , filed with ORG a request for the recovery of maintenance from GPE under ORG . He requested that the NORP authorities secure a friendly settlement of the case or , alternatively , institute court proceedings with the aim of recovering the maintenance and enforce any judgment that might be given in this connection by the NORP courts .", "By a letter of CARDINAL DATE ORG asked the applicant to rectify her request , in particular by attaching the required documents .", "On DATE ORG , acting as ORG under ORG , transferred the second applicant ’s request to ORG , acting as ORG .", "On DATE ORG requested ORG to confirm reception of the application filed by the second applicant . It appears that there was no response to that request . Enquiries with the NORP postal service revealed that the request had been served on ORG on DATE .", "On DATE ORG issued a certificate for the third applicant attesting that she had not received any maintenance payments due to the second applicant . The certificate was necessary to claim substitute maintenance from ORG .", "On DATE the ORG requested the assistance of ORG in GPE . In reply , on DATE the Polish Embassy informed ORG that ORG had instituted proceedings for the recovery of the maintenance due to the second applicant . The ORG further informed the court that a hearing before ORG , initially scheduled for DATE , had been rescheduled for CARDINAL DATE .", "On DATE and DATE ORG requested ORG to inform it of the outcome of the hearing before the ORG court .", "On DATE and DATE ORG requested ORG in GPE to enquire with the NORP authorities about the progress of the proceedings .", "On DATE ORG sent the file concerning the second applicant ’s case to ORG , requesting its assistance .", "DATE . On DATE ORG sent the case file back to ORG , informing it that the second applicant should address the NORP authorities directly with a request to be provided with a copy of the decision that had apparently been given in his case by the NORP court . On DATE ORG forwarded the ORG letter to the third applicant .", "On DATE ORG requested ORG to inform it about any further steps taken with a view to recovering the maintenance . It sent again a copy of the original request for the recovery of maintenance from GPE and requested ORG assistance as GPE had not been paying maintenance due to the second applicant since DATE . On DATE , ORG requested ORG in GPE to intervene in the case .", "On DATE the ORG informed ORG that they had already sent to it the judgment of ORG of DATE ( see paragraph CARDINAL below ) . They also requested the ORG to provide them with additional information as to the defendant ’s property , with a view to the enforcement of the judgment in GPE . ORG replied to ORG that the judgment of ORG given on DATE in the third applicant ’s case did not concern any maintenance payments in respect of the second applicant . Consequently , it requested ORG to proceed with the recovery of the maintenance owed by GPE to the second applicant .", "In its response of CARDINAL DATE , ORG informed the ORG that the NORP judgment ordering GPE to pay maintenance to the second applicant was a judgment in default given in GPE ’s absence . Consequently , ORG requested ORG to provide it with documents proving that GPE ’s rights as a defendant in the proceedings before the NORP courts had been respected , as required by LAW . On DATE ORG forwarded the requested documents to ORG .", "On DATE ORG transmitted the case to ORG as a competent authority to institute the proceedings in accordance with ORG . Subsequently , the case was transmitted to ORG of ORG for further action .", "On DATE ORG , acting as ORG , filed a claim with ORG for the enforcement of FAC judgment of DATE .", "On DATE ORG gave judgment , dismissing the claim . The court considered that the ORG had no standing to file such a claim because ORG did not apply to the case . It held that LAW was applicable to the case and that accordingly it was the second applicant who had standing to file a claim for enforcement . It is not clear whether ORG lodged an appeal against that judgment .", "Meanwhile , on DATE the third applicant filed a claim with ORG requesting the recognition and enforcement of FAC judgment of DATE . The court gave judgment on CARDINAL DATE , dismissing the third applicant ’s claim . It held that the defendant , GPE , had not been correctly informed about the proceedings in GPE and therefore could not defend his interests in the proceedings . The court found that GPE had been served summons to appear at the hearing scheduled for DATE only on DATE , i.e. after the hearing had taken place . The third applicant appealed .", "DATE . According to a document dated DATE prepared by a judge of the ORG the rights of GPE had been fully respected in the proceedings leading to the FAC ORG judgment of DATE . The judge noted that the second applicant ’s claim had been filed on DATE and that the first hearing had been scheduled for DATE . The latter hearing was adjourned since GPE had failed to appear and FAC had had no proof that the claim had been served on the defendant . After the court was notified that the claim had been served on GPE on DATE it scheduled a hearing for DATE . On that date PERSON ORG heard the case and delivered judgment in default . The judgment was translated and served on GPE on DATE . He was instructed that he could file an objection to the judgment in default within DATE from the date of the service but he did not react .", "A hearing before ORG was scheduled for CARDINAL DATE . However , that hearing was rescheduled owing to a bomb attack which had occurred in the court in GPE DATE prior to that date . Another hearing in the case , scheduled for DATE , was also rescheduled , on account of the local elections due to take place from QUANTITY to DATE .", "On DATE ORG dismissed the third applicant ’s appeal . It upheld the lower court finding that the GPE ’s rights to participate in the proceedings and to defend his interests had not been respected . Accordingly , the recognition of the judgment in issue would have been contrary to the public order .", "It appears that the third applicant did not lodge an appeal with ORG .", "On DATE the third applicant also lodged an action with ORG against GPE for maintenance on behalf of the second applicant . The proceedings were suspended pending the outcome of the proceedings for the recognition and enforcement of the judgment of DATE .", "On DATE the second applicant , represented by his mother , filed a complaint under LAW . He claimed that the length of the proceedings for the recovery of maintenance instituted by him on DATE on the basis of ORG had been excessive . He also claimed compensation in the amount of ORG CARDINAL .", "On DATE ORG dismissed the applicant ’s complaint . The court observed that the second applicant had filed his application for recovery of maintenance under FAC on DATE . It noted that the initial application had been incomplete and had had to be rectified by the second applicant before being transmitted to ORG . ORG considered that the transmission of documents had been carried out without undue delay . It further considered that , in the proceedings under LAW , ORG had only acted as ORG and , as such , had had no influence on the expeditiousness of the recovery of the maintenance by the NORP authorities . Moreover , ORG found that ORG , although it had not been required to do so by law , had on several occasions attempted to intervene in the proceedings by sending reminder letters to the NORP authorities and by soliciting the assistance of the NORP embassy in GPE . Consequently , ORG considered that the ORG could not be held responsible for the overall length of the impugned proceedings and it dismissed the second applicant ’s complaint , refusing to award him any compensation .", "On DATE ORG issued a divorce decree in default , dissolving the third applicant ’s marriage to a NORP national , GPE , and ordering GPE to pay maintenance to her .", "On DATE the third applicant lodged an application with ORG for the recovery of maintenance from GPE under LAW . In her application , she requested the NORP authorities to secure a friendly settlement of the case or , alternatively , to institute proceedings with the aim of recovering the maintenance and to recognise and enforce the judgment of DATE .", "On DATE ORG asked the third applicant to rectify her request by attaching the required documents . On DATE the court transmitted the application to ORG .", "On DATE ORG sent the applicant ’s file to ORG in order for it to proceed with enforcement of the recovery of maintenance from GPE The efforts to summon NORP proved unsuccessful . On DATE ORG transmitted the case - file to ORG with a view to instituting enforcement proceedings in accordance with ORG . Subsequently , the case was referred to ORG of ORG for further action .", "Meanwhile , on DATE the third applicant married PERSON According to ORG , pursuant to LAW of ORG , LOC ’s obligation to pay maintenance to the third applicant ceased as a consequence of this act . The applicant contested this assertion of ORG .", "On DATE ORG requested ORG to provide it with proof that the summons had been served on GPE in the proceedings before ORG .", "On DATE ORG sent the requested document to ORG , observing that it had already been sent to it on DATE , together with the initial request for recovery of maintenance .", "On DATE the NORP authorities brought an action against GPE before ORG with the aim of obtaining the recognition and enforcement of the judgment of the ORG of DATE .", "On DATE ORG decided to adjourn the hearing in order to verify whether the matter had not already been the subject of another final judgment concerning the same parties .", "On DATE , CARDINAL DATE and CARDINAL DATE ORG requested ORG to provide it with information as to the progress of the proceedings . It appears that no response was received to these enquiries .", "On DATE the ORG requested the assistance of ORG in GPE .", "A hearing before ORG scheduled for DATE was adjourned . A hearing took place on CARDINAL DATE . On DATE the court decided to adjourn the hearing for the same reason as previously ( see paragraph CARDINAL above ) . The next hearing scheduled for DATE was adjourned . The hearing took place on DATE . Twice in the course of the proceedings the NORP authorities lodged a request with ORG for a hearing to be scheduled in the case .", "On DATE ORG requested ORG to provide it with information as to the outcome of the hearing before the GPE court . Since no reply was received to that request , on DATE ORG requested the NORP Embassy in GPE to enquire with the NORP authorities as to the outcome of the proceedings .", "On DATE the ORG informed ORG of the developments in the case .", "On DATE ORG gave a judgment recognising ORG divorce verdict of DATE as enforceable in GPE . On DATE ORG sent a copy of the judgment to ORG .", "On DATE ORG requested ORG Ministry of Justice to provide it with legal advice as to the further steps necessary to recover the maintenance due to the third applicant . On DATE the NORP Ministry suggested further cooperation with ORG and underlined that ORG acted only as a ORG .", "On DATE ORG informed the third applicant that she should entrust the carrying out of the enforcement proceedings in GPE to a NORP counsel . The court further informed her that the proceedings in her case would be temporarily stayed pending the outcome of the enforcement proceedings in GPE .", "On DATE a copy of the judgment of DATE was served on GPE , together with an order of payment for CARDINAL ORG .", "On DATE ORG asked ORG to provide information as regards GPE ’s assets in GPE . In reply , the third applicant provided the information that GPE ’s assets included CARDINAL taverns in NORP and GPE , a house in ORG , a flat in GPE and several cars and motorcycles .", "On DATE the ORG informed ORG that enforcement proceedings against GPE on the basis of the judgment of ORG of DATE had been initiated and that some property belonging to ORG would be seized and auctioned off .", "Subsequently , CARDINAL auctions were organised in order to sell CARDINAL of GPE ’s apartments in GPE ( on DATE , DATE and DATE ) . However , this was to no avail , as there were no bidders at the auctions .", "On DATE the NORP authorities requested ORG to fix a lower price for the CARDINAL apartments in order to facilitate the auction . On DATE the court partly granted the request and fixed the price at CARDINAL ORG and CARDINAL ORG respectively . CARDINAL subsequent auctions of CARDINAL and DATE were again to no avail for the lack of bidders .", "On DATE the NORP authorities lodged a request with ORG to authorise the sale of GPE ’s CARDINAL apartments through an open sale .", "CARDINAL", "In the meantime , on DATE the third applicant filed a new application for recovery of maintenance payments . It was forwarded to ORG on DATE . The first hearing was set for DATE .", "On DATE ORG asked ORG what the chances were that the maintenance would be recovered from GPE ORG did not reply .", "The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on DATE by ORG on Maintenance Obligations . GPE and GPE ratified GPE on DATE and DATE respectively .", "The relevant provisions of ORG read as follows :", "The purpose of this Convention is to facilitate the recovery of maintenance to which a person , hereinafter referred to as claimant , who is in the territory of CARDINAL of the Contracting Parties , claims to be entitled from another person , hereinafter referred to as respondent , who is subject to the jurisdiction of ORG . This purpose shall be effected through the office of agencies which will hereinafter be referred to as ORG .", "The remedies provided for in this Convention are in addition to , and not in substitution for , any remedies available under municipal or international law .", "Where a claimant is in the territory of CARDINAL ORG , hereinafter referred to as the ORG of the claimant , and the respondent is subject to the jurisdiction of ORG , hereinafter referred to as the ORG of the respondent , the claimant may make application to a ORG in GPE the claimant for the recovery of maintenance from the respondent . ( ... )", "The application shall be accompanied by all relevant documents , including , where necessary , a power of attorney authorising ORG to act , or to appoint some other person to act , on behalf of the claimant . It shall also be accompanied by a photograph of the claimant and , where available , a photograph of the respondent .", "ORG shall take all reasonable steps to ensure that the requirements of the law of ORG are complied with ; ...", "ORG shall , at the request of the claimant , transmit , under the provisions of article CARDINAL , any order , final or provisional , and any other judicial act , obtained by the claimant for the payment of maintenance in a competent tribunal of any of the Contracting Parties , and , where necessary and possible , the record of the proceedings in which such order was made . ...", "Proceedings under article CARDINAL may include , in accordance with the law of the State of the respondent , exequatur or registration proceedings or an action based upon the act transmitted under paragraph CARDINAL .", "ORG shall , subject always to the authority given by the claimant , take , on behalf of the claimant , all appropriate steps for the recovery of maintenance , including the settlement of the claim and , where necessary , the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance .", "ORG shall keep ORG currently informed . If it is unable to act , it shall inform ORG of its reasons and return the documents .", "Notwithstanding anything in this Convention , the law applicable in the determination of all questions arising in any such action or proceedings shall be the law of the ORG of the respondent , including its private international law . ”", "The Agreement between GPE and GPE entered into force on DATE .", "The DATE Agreement provides , in so far as relevant :", "...", "Final court decisions in civil matters concerning rights of a pecuniary nature delivered in the territory of CARDINAL ORG may be recognised as enforceable in the other ORG if they were delivered after the entry into force of the present Agreement .", "A request for the recognition or the enforcement of a court decision should be filed with the court which examined the matter in the first instance or with the competent court of the other ORG . In the former case , the court shall transmit the request to the competent court of the other ORG , in accordance with the procedure set out in article CARDINAL of the present Agreement .", "A request for the recognition or the enforcement of a court decision should include :", "...", "b ) a document proving that a plaintiff who did not participate in the proceedings , or his lawyer , had been informed in due time and summoned in due time to a hearing on CARDINAL occasion .", "ORG or enforcement may be refused :", "...", "d ) if , according to the law of ORG in whose territory the decision is to be recognised or enforced , the court of that ORG has sole jurisdiction to examine the matter .", "GPE and GPE ratified LAW on DATE and DATE respectively . It entered into force in respect of GPE on DATE and in respect of GPE on DATE .", "The relevant provisions of LAW read as follows :", "For the purposes of this LAW , ‘ judgment’ means any judgment given by a court or tribunal of a ORG , whatever the judgment may be called , including a decree , order , decision or writ of execution , as well as the determination of costs or expenses by an officer of the court .", "A judgment given in a Contracting State shall be recognised in the other Contracting States without any special procedure being required .", "Any interested party who raises the recognition of a judgment as the principal issue in a dispute may , in accordance with the procedures provided for in LAW of this Title , apply for a decision that the judgment be recognised .", "If the outcome of proceedings in a court of a Contracting State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question .", "A judgment shall not be recognised :", "if such recognition is contrary to public policy in the ORG in which recognition is sought ;", "where it was given in default of appearance , if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence ;", "if the judgment is irreconcilable with a judgment given in a dispute between the same parties in the ORG in which recognition is sought ;", "if the court of the ORG of origin , in order to arrive at its judgment , has decided a preliminary question concerning the status or legal capacity of natural persons , rights in property arising out of a matrimonial relationship , wills or succession in a way that conflicts with a rule of the private international law of the ORG in which the recognition is sought , unless the same result would have been reached by the application of the rules of private international law of that ORG ;", "if the judgment is irreconcilable with an earlier judgment given in a noncontracting State involving the same cause of action and between the same parties , provided that this latter judgment fulfils the conditions necessary for its recognition in the ORG addressed .", "...", "A judgment given in a Contracting State and enforceable in that ORG shall be enforced in another Contracting State when , on the application of any interested party , it has been declared enforceable there .", "...", "The court applied to shall give its decision without delay ; the party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application .", "The application may be refused only for CARDINAL of the reasons specified in Articles CARDINAL and CARDINAL .", "Under no circumstances may the foreign judgment be reviewed as to its substance .", "The appropriate officer of the court shall without delay bring the decision given on the application to the notice of the applicant in accordance with the procedure laid down by the law of the ORG in which enforcement is sought .", "ORG ( ORG ) No CARDINAL/CARDINAL lays down rules governing the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in the ORG countries . The relevant provisions of the Regulation ( ORG ) No CARDINAL/CARDINAL read as follows :", "For the purposes of this Regulation , ‘ judgment’ means any judgment given by a court or tribunal of a Member ORG , whatever the judgment may be called , including a decree , order , decision or writ of execution , as well as the determination of costs or expenses by an officer of the court .", "A judgment given in a Member ORG shall be recognised in the other Member GPE without any special procedure being required .", "Any interested party who raises the recognition of a judgment as the principal issue in a dispute may , in accordance with the procedures provided for in Sections CARDINAL and CARDINAL of this LAW , apply for a decision that the judgment be recognised .", "If the outcome of proceedings in a court of a Member ORG depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question .", "A judgment shall not be recognised :", "if such recognition is manifestly contrary to public policy in the Member ORG in which recognition is sought ;", "where it was given in default of appearance , if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence , unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so ;", "if it is irreconcilable with a judgment given in a dispute between the same parties in the Member ORG in which recognition is sought ;", "if it is irreconcilable with an earlier judgment given in another Member ORG or in a third ORG involving the same cause of action and between the same parties , provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member ORG addressed .", "...", "A judgment given in a Member ORG and enforceable in that ORG shall be enforced in another Member State when , on the application of any interested party , it has been declared enforceable there .", "...", "The procedure for making the application shall be governed by the law of the Member ORG in which enforcement is sought .", "...", "The judgment shall be declared enforceable immediately on completion of the formalities in LAW without any review under LAW and DATE . The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application .", "The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the Member ORG in which enforcement is sought .", "...", "The decision on the application for a declaration of enforceability may be appealed against by either party .", "...", "The court with which an appeal is lodged under LAW shall refuse or revoke a declaration of enforceability only on one of the grounds specified in DATE . It shall give its decision without delay .", "Under no circumstances may the foreign judgment be reviewed as to its substance ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant is a Gypsy by birth . Since her birth she has travelled constantly with her family , mainly in the GPE area , in search of work . When she married , the applicant and her husband continued to live in caravans . They have CARDINAL children .", "The applicant and her husband used to stop for as long as possible on temporary or unofficial sites while he found work as a landscape gardener . They stayed for DATE on an unofficial site in GPE . They travelled for DATE in the ORG area . They were on the waiting list for a permanent site but were never offered a place . They were constantly moved from place to place by the police and representatives of local authorities . Their children 's education was constantly interrupted because they had to move about .", "Due to harassment while she led a travelling life , which was detrimental to the health of the family and the education of the children , the applicant bought a piece of land in DATE with the intention of living on it in a mobile home . The land is within the area of ORG in GPE where there is no official Gypsy site . The applicant alleges that a ORG official had told her in DATE when she was encamped on the roadside that if she bought land she would be allowed to live on it . The Government state that there is no record of such a promise being made and that it would be unlikely that such a promise would be made , since it would be for ORG , not ORG , to decide any application . The land was also subject to a DATE discontinuance order requiring the site not to be used for the stationing of CARDINAL caravans .", "The applicant and her family moved on to the land and applied for planning permission . This was to enable the children to attend school immediately . ORG refused the application for planning permission on DATE and served enforcement notices .", "Appeals were lodged against the enforcement notices . In DATE a public inquiry was held by an inspector appointed by ORG . He dismissed the appeal and upheld the decision of the ORG as the land was in FAC and he considered that the national and local planning policies should override the needs of the appellant . Since there was no official Gypsy site in the CARDINAL LOC district the family was given DATE to move from their land , the ORG having stated that a suitable location was being sought for them and that they would be able to move to a new official site within DATE .", "When the DATE period expired , the family remained on the site since they had nowhere else to go . The applicant applied for planning permission for a bungalow , as it had been stated at the public inquiry that this would be a more appropriate use of the land than a mobile home . Planning permission was refused and the ORG 's decision was upheld at a further local inquiry . The family remained on the site and the ORG served summonses on the applicant and her husband for failure to comply with an enforcement notice . On DATE they were both fined MONEY ( GBP ) , with costs of GBP CARDINAL in the Magistrates ' Court . On DATE they were again fined , this time GBP CARDINAL each , with costs of GBP CARDINAL . To avoid further court action , the family returned to a nomadic life and were constantly moved from place to place by ORG officials . The applicant 's eldest daughter had started a hairdressing course at a college of further education and the second daughter was about to start studying at college for a diploma in forestry . Both of these courses had to be abandoned and the CARDINAL younger children could no longer attend school .", "During this period the applicant made a further planning application for a bungalow on her land . Again her application was refused and failed after an inquiry . In DATE the applicant and her family returned to their land in a caravan . Enforcement notices were issued by ORG . The applicant appealed against them and there was a planning inquiry on DATE .", "By a decision letter of DATE , the inspector dismissed the appeal . In his decision , he stated , inter alia :", "“ CARDINAL . Local policies in GPE of DATE , as revised by LAW of DATE and the CARDINAL LOC of DATE , reaffirm that PERSON and the surrounding countryside lie within FAC ... The Structure Plan contains policies also on ORG and Gypsy sites . ORG shows that the site lies outside the core of the village , but within an ORG and also , within an Area of Great Landscape Value , now , by virtue of ORG , termed a LOC .", "...", "The appeal site is a deep plot of QUANTITY ha on the frontage of PERSON which leads from PERSON , a village in the Metropolitan Green Belt ; past the site to the west are a few dwellings , a nursery and LOC . ...", "...", "From the evidence before me and from my inspection of the site and the surrounding area it is clear to me that the principal issues in these matters are , first , whether the developments for which permissions are sought would be appropriate within FAC and , second , whether there are any very special circumstances in your client 's cases which would outweigh the general strong presumption against inappropriate development in LOC .", "Structure Plan policies presume against planning permission in LOC , except in very strong circumstances , for the construction of new buildings , including residential caravans , or certain other specified categories of development . Para . CARDINAL of Planning Policy Guidance CARDINAL – Green Belts – states that , inside a Green Belt , approval should not be given , except in very special circumstances , for other than certain categories of appropriate developments . The previous paragraph emphasises the national presumption against inappropriate development within ORG .", "The latest national guidance , in Circular DATE , on ORG states in the introduction that a main intention of the document is to withdraw the previous guidance indicating that it may be necessary to accept the establishment of gypsy sites in protected areas , including GPE sites . LAW goes on to say that gypsy sites are not regarded as being amongst those uses of land which are normally appropriate in FAC .", "None of [ the applicant 's ] projects fall within the categories identified as exempt from national or local assumptions against inappropriate development in GPE . ...", "I hold the very firm conviction that none of the developments referred to in these notices could properly and reasonably be regarded as appropriate in the terms of strong national guidance or long established local policies which all seek to protect the value of the LOC designation of the area .", "This site is in a part of ORG , near to a motorway and particularly vulnerable to development pressure . In my judgment the local and national worthwhile policies that seek to protect the Green Belt would undoubtedly be frustrated for a main purpose of ORG is to protect the surrounding countryside from further encroachment .", "As for alternative accommodation for [ the applicant ] , I was referred to the statutory duty of ORG to provide a site for [ the applicant ] , who is a gypsy resident in the area , to place her caravan ; DATE after statutory requirement to provide better living conditions for gypsies there were not sufficient sites in GPE . The ORG would save public money by letting [ the applicant ] remain here and not put another caravan on the roadside ; there had never been an official gypsy caravan site in the District , which , in consequence , had not acquired the benefit of a statutorily designated area .", "[ The applicant ] also said that ORG were under a Direction from the Secretary of ORG for the Environment , under section CARDINAL of LAW of DATE to provide further accommodations for gypsies in the LOC , but ORG were not able to confirm progress to establish a CARDINAL pitch gypsy caravan site at GPE , GPE . ...", "...", "I note that the ORG did not refute [ the applicant 's ] comment on caravan site provision in the area , but I do not accept her argument as of sufficient weight to overturn , in the absence of very special circumstances , the cogent planning argument against inappropriate development in LOC here .", "...", "Your client said that the site had been tidied ; rubbish , undergrowth and some neglected buildings had been removed ; a building had been renovated . ... The caravans are set further back on the site and partly screened by the previously erected large brick building ; moreover they were considerably less conspicuous than the previous mobile home which was stationed close to PERSON . ... As for the caravans , your client said that there were few places from which they are likely to be seen by very many members of the public , apart from drivers on PERSON whose attention was likely to be on traffic conditions .", "I attach more weight to the fact that this site lies in an attractive setting of mainly sporadic dwellings in extensive grounds and in a designated LOC . To the north - west is the built - up area of the village and to the south - west attractive open countryside in LOC ; it was agreed that the area is popular for recreational walking and riding .", "I do not consider that the arguments put forward by [ the applicant ] would justify allowing residential development of this site . I find no reason to differ from the conclusions of my predecessors who considered that it would be wrong to grant permission for this site in a part of ORG which is particularly vulnerable to development pressure . Whatever the conditions attached to specific grants of permission , stationing a residential caravan here would detract significantly from the quiet rural character and appearance of the site . As well as the caravan itself and the external signs of occupation there would be the activities associated with a family on the site and the comings and goings inevitable with the residential occupation .", "...", "There is another factor which reinforces , to my mind , rejection of [ the applicant 's } appeals . Whilst the local planning authority has to consider every application on its merits at the time , these projects , if allowed , would be very likely to encourage similar schemes . The ORG would undoubtedly find it more difficult to refuse such other schemes , with this site as a precedent , and those additional developments would cause significant harm to interests of acknowledged importance , which I consider to be unacceptable .", "...", "At the inquiry in DATE , following enforcement action , the ORG told that ORG that a suitable location for a gypsy caravan site was being sought ; [ the applicant ] would be able to move to the new site within DATE . ...", "...", "It appears that little progress has been made since the appeal in DATE . LAW and DATE above indicate that the information given in DATE to the ORG about the provision of gypsy caravan sites in GPE was optimistic ; estimates among ORG officers apparently varied DATE .", "I note the ORG 's statement that [ the applicant ] had not shown interest in a pitch on a ORG caravan site but , to my mind , other factors militate against their argument . First , it is not unreasonable for [ the applicant ] to wait the outcome of these appeals ; second , [ the applicant ] might not unreasonably have declined to make an application for a caravan pitch site provided by the ORG , for , as agreed at this inquiry , she has no prospect of obtaining one . ...", "...", "... As I believe [ the applicant ] to have no better prospect now of obtaining another pitch than in DATE , I shall in the exceptional circumstances of this case , vary the notice , as before , to specify a period of DATE for compliance with it . ”", "The applicant 's father , aged DATE , who suffers from senile dementia , now lives with the applicant as he needs constant care and has no one else to look after him . He receives DATE injections from a doctor . The applicant , who has suffered bereavement in respect of her son and grandson since DATE , suffers from depression and has a heart condition . Her husband receives treatment from his doctor and the hospital for arthritis . The applicant 's children , previously living on the site , have moved away .", "There are no local authority sites or private authorised sites in the CARDINAL LOC district . However , the ORG submit that there are local authority and authorised private sites elsewhere in the same county of GPE , which contains CARDINAL local authority sites which can accommodate CARDINAL caravans .", "According to the draft ORG applied by the ORG to planning , policy PERSON specifies that the LOC area covers the entire CARDINAL LOC district save for defined urban areas and GB.CARDINAL specifies that with the exception of the villages planning permission for development was to be refused except in very special circumstances .", "ORG DATE ( as amended by LAW DATE ) ( “ the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section DATE ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .", "An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) .", "The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see PERSON the GPE , judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE ) . There is a further appeal to ORG on the ground that the Secretary of ORG 's decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .", "If a development is carried out without the grant of the required planning permission , the local authority may issue an “ enforcement notice ” if it considers it expedient to do so having regard to the provisions of the development plan and to any other relevant considerations ( section CARDINAL ) of LAW ) .", "There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .", "Again there is a further right of appeal “ on a point of law ” to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector 's decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .", "Where any steps required to be taken by an enforcement notice are not taken within the specified time - limit , the local authority may enter the land to take the required steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .", "The purpose of Green Belts and the operation of the policy to protect them is set out in national policy document PPG CARDINAL ( DATE ) .", "“ CARDINAL . The Government attaches great importance to GPE , which have been an essential element of planning policy for DATE . ...", "...", "The fundamental aim of LOC policy is to prevent urban sprawl by keeping land permanently open ; the most important attribute of ORG is their openness . Green Belts can shape patterns of urban development at sub - regional and regional scale , and help to ensure that development occurs in locations allocated in development plans . They help to protect the countryside , be it in agricultural , forestry or other use . They can assist in moving towards more sustainable patterns of urban development .", "There are CARDINAL purposes of including land in GPE :", "– to check the unrestricted sprawl of large built - up areas ;", "– to prevent neighbouring towns from merging into one another ;", "– to assist in safeguarding the countryside from encroachment ;", "– to preserve the setting and special character of historic towns ; and", "– to assist in urban regeneration by encouraging the recycling of derelict and other urban land .", "...", "NORP The essential characteristic of GPE is their permanence . Their protection must be maintained as far as can be seen ahead .", "...", "The general policies controlling development in the countryside apply with equal force in Green Belts but there is , in addition , a general presumption against inappropriate development within them . Such development should not be approved , except in very special circumstances . ...", "Inappropriate development is , by definition , harmful to LOC . It is for the applicant to show why permission should be granted . Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness , and any other harm , is clearly outweighed by other considerations . In view of the presumption against inappropriate development , the Secretary of ORG will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development .", "... ”", "Part II of LAW DATE ( “ the DATE LAW ) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to GPE as a result of planning and other legislation and social changes in the post - war years , in particular the closure of commons carried out by local authorities pursuant to section CARDINAL of GPE and ORG DATE . LAW of LAW defined “ NORP ” as", "“ persons of nomadic habit of life , whatever their race or origin , but does not include members of an organised group of travelling showmen , or of persons engaged in travelling circuses , travelling together as such ” .", "Section CARDINAL of the DATE Act provided that it should be the duty of local authorities", "“ to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area ” .", "NORP The Secretary of ORG could direct local authorities to provide caravan sites where it appeared to him to be necessary ( section CARDINAL ) .", "Where the Secretary of ORG was satisfied either that a local authority had made adequate provision for the accommodation of GPE , or that it was not necessary or expedient to make such provision , he could “ designate ” that district or county ( section CARDINAL of the DATE Act ) .", "The effect of designation was to make it an offence for any Gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway , on any other unoccupied land or on any occupied land without the consent of the occupier ( section CARDINAL ) .", "In addition , LAW gave to local authorities within designated areas power to apply to a magistrates ' court for an order authorising them to remove caravans parked in contravention of section CARDINAL .", "By DATE it had become apparent that the rate of site provision under section CARDINAL of the CARDINAL Act was inadequate , and that unauthorised encampments were leading to a number of social problems . In DATE , therefore , the government asked Sir PERSON to carry out a study into the operation of LAW . He reported in DATE ( Accommodation for Gypsies : A report on the working of GPE DATE “ the FAC ” ) .", "Sir PERSON estimated that there were approximately CARDINAL NORP living in GPE and GPE . He found that :", "“ DATE after the coming into operation of Part II of LAW , provision exists for CARDINAL of the estimated total number of gypsy families with no sites of their own . DATE of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law : when they stop for TIME they have no alternative but to break the law . ”", "The report made numerous recommendations for improving this situation .", "Circular CARDINAL/CARDINAL was issued by ORG . Its stated purpose was to provide local authorities with guidance on “ statutory procedures , alternative forms of Gypsy accommodation and practical points about site provision and management ” . It was intended to apply until such time as more final action could be taken on the recommendations of ORG .", "Among other advice , it encouraged local authorities to enable self - help by NORP through the adoption of a “ sympathetic and flexible approach to [ NORP ' ] applications for planning permission and site licences ” . Making express reference to cases where NORP had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming , it recommended that in such cases enforcement action not be taken until alternative sites were available in the area .", "Circular CARDINAL/CARDINAL , which was issued on DATE , stated , inter alia , that “ it would be to everyone 's advantage if as many NORP as possible were enabled to find their own accommodation ” , and thus advised local authorities that “ the special need to accommodate GPE ... should be taken into account as a material consideration in reaching planning decisions ” .", "In addition , CARDINAL were spent under a scheme by which PERCENT grants were made available to local authorities to cover the costs of creating Gypsy sites .", "Section CARDINAL of the Criminal Justice and LAW DATE ( “ the DATE LAW ) , which came into force on DATE , repealed sections QUANTITY toCARDINAL of LAW and the grant scheme referred to above .", "Section CARDINAL of the DATE Act gives to a local authority power to direct an unauthorised camper to move . An unauthorised camper is defined as", "“ a person for the time being residing in a vehicle on any land forming part of the highway , any other unoccupied land or any occupied land without the owner 's consent ” .", "Failure to comply with such a direction as soon as practicable , or re - entry upon the land within DATE , is a criminal offence . Local authorities are able to apply to a magistrates ' court for an order authorising them to remove caravans parked in contravention of such a direction ( section CARDINAL of the DATE Act ) .", "In the case of NORP v. ORG , ex parte Atkinson ( DATE ) , PERSON referred to LAW as “ NORP ” legislation . He commented that :", "“ For DATE the commons of GPE provided lawful stopping places for people whose way of life was or had become nomadic . Enough common land had survived DATE of enclosure to make this way of life still sustainable , but by s.CARDINAL of ORG and ORG DATE local authorities were given the power to close the commons to travellers . This they proceeded to do with great energy , but made no use of the concomitant powers given them by s.CARDINAL of the same Act to open caravan sites to compensate for the closure of the commons . By DATE , therefore ORG legislated to make the s.CARDINAL power a duty , resting in rural areas upon county councils rather than district councils . ... For DATE there followed a history of non - compliance with the duties imposed by the Act of DATE , marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty , to apparently little practical effect . The default powers vested in central government to which the court was required to defer , were rarely , if ever used .", "The culmination of the tensions underlying the history of non - compliance was the enactment of ... the Act of DATE ... ”", "New guidance on Gypsy sites and planning , in the light of LAW , was issued to local authorities by the government in FAC ( DATE ) , which cancelled ORG CARDINAL/CARDINAL ( see above ) .", "Councils were told :", "“ In order to encourage private site provision , local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development . ... The aim should be as far as possible to help gypsies to help themselves , to allow them to secure the kind of sites they require and thus help avoid breaches of planning control . ” ( paragraph CARDINAL )", "However :", "“ As with other planning applications , proposals for gypsy sites should continue to be determined solely in relation to land - use factors . Whilst gypsy sites might be acceptable in some rural locations , the granting of permission must be consistent with agricultural , archaeological , countryside , environmental , and LOC policies . ... ” ( paragraph CARDINAL )", "It was indicated that as a rule it would not be appropriate to make provision for Gypsy sites in areas of open land where development was severely restricted , for example Areas of Outstanding Natural Beauty and Sites of Special Scientific Interest . Nor were Gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt ( paragraph CARDINAL ) .", "Further guidance issued by the Secretary of ORG dated DATE concerned the unauthorised camping of GPE and the power to give a direction to leave the land ( see LAW above ) . Paragraphs CARDINAL to CARDINAL required local authorities to adopt “ a policy of toleration towards unauthorised gypsy encampments ” :", "“ CARDINAL . ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which can not be effectively controlled , an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance . Accordingly , authorities should consider tolerating gypsies ' presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites , for example by providing basic services for gypsies e.g. toilets , a skip for refuse and a supply of drinking water .", "...", "Where gypsies are unlawfully camped on Government - owned land , it is for the local authority , with the agreement of the land - owning ORG , to take any necessary steps to ensure that the encampment does not constitute a hazard to public health . It will continue to be the policy of the Secretaries of ORG that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance .", "The Secretaries of ORG continue to consider that local authorities should not use their powers to evict gypsies needlessly . They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land . ”", "Paragraphs CARDINAL further require local authorities to consider their obligations under other legislation before taking any decisions under LAW . These obligations include their duties concerning pregnant women and newly - born children , the welfare and education of children and the housing of homeless persons . In a judgment of CARDINAL DATE ( NORP v. ORG , ex parte Atkinson , NORP v. ORG , ex parte GPE , and NORP v. ORG , ex parte GPE , unreported ) , ORG held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages .", "In a letter dated CARDINAL DATE , ORG drew to the attention of all local planning authorities in GPE that Circular CARDINAL/CARDINAL required local planning authorities to assess the need for Gypsy accommodation in their areas and make suitable locational and/or criteria - based policies against which to decide planning applications . The government was concerned that this guidance had not been taken up . ORG research ( see below ) had shown that PERCENT of local authorities ( CARDINAL ) had no policy at all on Gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on Gypsy provision . It was emphasised that it was important to include consideration of Gypsy needs at an early stage in drawing up structure and development plans and that detailed policies should be provided . Compliance with this guidance was essential in fulfilling the ORG 's objective that NORP should seek to provide their own accommodation , applying for planning permission like everyone else . It was necessary , therefore , that adequate Gypsy site provision be made in development plans to facilitate this process .", "ORG for ORG and other Travellers ( ACERT ) which had carried out research sponsored by ORG , noted in this report that since DATE private site provision had increased by CARDINAL caravans per year while the pace of public site provision had declined by CARDINAL caravans , disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision . Noting the increase of NORP in housing and the increased enforcement powers under LAW , it questioned , if these trends continued , the extent to which the ethnic , cultural and linguistic identity of Gypsies and Travellers would be protected .", "NORP The research looked , inter alia , at CARDINAL refused private site applications , which showed that PERCENT related to land within the countryside and that PERCENT were refused on grounds relating to the amenity value ( for example , PERSON , conservation area locations ) . For most of the CARDINAL Gypsy site applicants interviewed , obtaining permission for their own land was an important factor in improving the quality of life and gaining independence and security . For many , the education of their children was another important reason for private site application . All save CARDINAL had applied for permission retrospectively .", "The report stated that the success rate in CARDINAL planning appeals before DATE had averaged PERCENT but had decreased since . Having regard , however , to the way in which data was recorded , the actual success rate was probably PERCENT , being the figures given in DATE and DATE by the ORG and ORG respectively . Notwithstanding the objectives of planning policy that local authorities make provision for NORP , most local authorities did not identify any areas of land as suitable for potential development by NORP and reached planning decisions on the basis of land - use criteria in the particular case . It was therefore not surprising that most NORP made retrospective applications and that they had little success in identifying land on which local authorities would permit development . The granting of permission for private sites remained haphazard and unpredictable .", "In DATE ORG figures on Gypsy caravans in GPE disclosed that of CARDINAL caravans counted , CARDINAL were stationed on local authority pitches , CARDINAL on privately owned sites and CARDINAL on unauthorised sites . Of the latter , CARDINAL Gypsy caravans were being tolerated on land owned by non - Gypsies ( mainly local authority land ) and CARDINAL Gypsy caravans tolerated on land owned by NORP themselves . On these figures , CARDINAL caravans were therefore on unauthorised and untolerated sites while over PERCENT of caravans were stationed on authorised sites .", "Local authority duties to the homeless were contained in Part VII of LAW , which came fully into force on DATE . Where the local housing authority was satisfied that an applicant was homeless , eligible for assistance , had a priority need ( for example , the applicant was a person with whom dependant children resided or was vulnerable due to old age , physical disability , etc . ) and did not become homeless intentionally , the authority was required , if it did not refer the application to another housing authority , to ensure that accommodation was made available to the applicant for a minimum period of DATE . Where an applicant was homeless , eligible for assistance and not homeless intentionally , but was not a priority case , the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure accommodation .", "This convention , opened for signature on DATE , provides , inter alia :", "The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights , and as such falls within the scope of international co - operation .", "...", "The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law . In this respect , any discrimination based on belonging to a national minority shall be prohibited .", "The Parties undertake to adopt , where necessary , adequate measures in order to promote , in all areas of economic , social , political and cultural life , full and effective equality between persons belonging to a national minority and those belonging to the majority . In this respect , they shall take due account of the specific conditions of the persons belonging to national minorities .", "The measures adopted in accordance with paragraph CARDINAL shall not be considered to be an act of discrimination .", "The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture , and to preserve the essential elements of their identity , namely their religion , language , traditions and cultural heritage .", "Without prejudice to measures taken in pursuance of their general integration policy , the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation . ”", "The convention entered into force on DATE . GPE signed the convention on the date it opened for signature and ratified it on DATE . It entered into force for GPE on DATE . By DATE , it had been signed by CARDINAL of ORG CARDINAL member GPE and ratified by CARDINAL .", "The convention does not contain any definition of “ national minority ” . However , GPE in its report of DATE to the advisory committee concerned with the convention accepted that NORP are within the definition .", "Recommendation CARDINAL ( DATE ) of ORG on NORP in LOC included the recognition that GPE , as one of the very few non - territorial minorities in LOC , “ need special protection ” . In its general observations the ORG stated , inter alia :", "“ CARDINAL . Respect for the rights of NORP , individual , fundamental and human rights and their rights as a minority is essential to improve their situation .", "Guarantees for equal rights , equal chances , equal treatment and measures to improve their situation will make a revival of PERSON language and culture possible , thus enriching the NORP cultural diversity . ”", "Its recommendations included :", "“ xv . NORP member states should alter national legislation and regulations which discriminate directly or indirectly against NORP ; ”", "“ xviii . further programmes should be set up in the member states to improve the housing situation , education ... of those NORP who are living in less favourable circumstances ; ... ”", "In DATE ORG against Racism and Intolerance adopted General Policy Recommendation no . CARDINAL : Combating racism and intolerance against Roma / Gypsies . Its recommendations included :", "“ to ensure that discrimination as such , as well as discriminatory practices , are combated through adequate legislation and to introduce into civil law specific provisions to this end , particularly in the fields of ... housing and education ;", "...", "to ensure that the questions relating to ' travelling ' within a country , in particular regulations concerning residence and town planning , are solved in a way which does not hinder the way of life of the persons concerned ; ”", "On DATE ORG adopted a ORG on the situation of NORP in the Community ( Official Journal of ORG no . C CARDINAL/CARDINAL of CARDINAL DATE ) , calling on the governments of member GPE “ to introduce legal , administrative and social measures to improve the social situation of NORP and Travelling People in LOC ” ; and recommending that “ the ORG , the ORG and the governments of member GPE should do everything in their power to assist in the economic , social and political integration of NORP , with the objective of eliminating the deprivation and poverty in which the great majority of LOC 's Gypsy population still lives at the present time ” .", "Protection of minorities has become one of the preconditions for accession to ORG . In DATE ORG adopted “ Guiding Principles ” for improving the situation of GPE in candidate countries , based expressly on the recommendations of ORG on ORG and those of the OSCE High Commissioner on ORG .", "The situation of GPE and PERSON has become a standard item on the “ human dimension ” section of the agenda of LOC review conferences . CARDINAL structural developments – ORG ( ORG ) and the appointment of a High Commissioner on ORG also concerned protection of GPE and PERSON as minorities .", "On DATE the High Commissioner 's report on the situation of GPE and PERSON in the LOC area was published . Part IV of the report dealt with the living conditions of GPE , noting that while nomadism had been central to NORP history and culture a majority of GPE were now sedentary ( CARDINAL estimation gave PERCENT as nomadic , PERCENT as semi - nomadic , moving DATE , while PERCENT were sedentary ) . This was particularly true of central and eastern LOC , where there had been policies of forced sedentarisation in the past :", "“ It must be emphasised that whether an individual is nomadic , semi - nomadic or sedentary should , like other aspects of his or her ethnic identity , be solely a matter of personal choice . The policies of some LOC participating GPE have at times breached this principle , either by making a determination of a group 's fundamental lifestyle that is inconsistent with its members ' choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity . ” ( pp . CARDINAL )", "NORP The report stated that for those GPE who maintained a nomadic or semi - nomadic lifestyle the availability of legal and suitable parking sites was a paramount need and precondition to the maintenance of their group identity . It observed , however , that even in those countries that encouraged or advised local authorities to maintain parking sites , the number and size of available sites was insufficient compared to the need :", "“ ... The effect is to place nomadic GPE in the position of breaking the law – in some countries , committing a crime – if they park in an unauthorised location , even though authorised sites may not be available . ” ( pp . CARDINAL - CARDINAL )", "The report dealt specifically with the situation of NORP in GPE ( pp . CARDINAL - CARDINAL ) . It found :", "“ Under current law , NORP have CARDINAL options for lawful camping : parking on public caravan sites – which the ORG acknowledges to be insufficient ; parking on occupied land with the consent of the occupier ; and parking on property owned by the campers themselves . ORG has issued guidance to local authorities aimed at encouraging the last approach . In practice , however , and notwithstanding official recognition of their special situation and needs , many NORP have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property . ... ” ( pp . CARDINAL - CARDINAL ) .", "Concerning the planning regime which requires planning permission for the development of land towards the stationing of caravans , it stated :", "“ ... This scheme allows wide play for the exercise of discretion DATE and that discretion has repeatedly been exercised to the detriment of NORP . A DATE report by ORG described the prospects of applying for planning permission for a Gypsy site as ' a daunting one laced with many opportunities for failure ' . In DATE , DATE in which the success of application rates was evaluated , it was ascertained that MONEY of applications for planning permission by NORP were denied . In contrast , MONEY of all planning applications were granted during DATE . It is to be noted that , as a category , Gypsy planning applications are relatively unique in so far as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities . As such , virtually all Gypsy planning applications are highly contentious . Nonetheless , the fact remains that there is inadequate provision or availability of authorised halting sites ( private or public ) , which the high rate of denial of planning permission only exacerbates . Moreover , there are indications that the situation has deteriorated since DATE . ... In face of these difficulties , the itinerant lifestyle which has typified the GPE is under threat . ” ( pp . CARDINAL - CARDINAL )", "NORP The report 's recommendations included the following :", "“ ... in view of the extreme insecurity many GPE now experience in respect of housing , governments should endeavour to regularise the legal status of GPE who now live in circumstances of unsettled legality . ” ( pp . CARDINAL and CARDINAL )" ]

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[ "14", "6", "8" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was unrepresented before the ORG . 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 . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . This decision was confirmed by an appeal tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .", "The 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 PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "The applicant was born in DATE and is currently detained at NORP prison ( GPE ) .", "On DATE the applicant , accused together with other persons of various counts of aggravated theft ( including theft in various factories and car theft ) , was arraigned before ORG sitting as ORG .", "The prosecution concluded the case on the merits on DATE . It produced further evidence on charges of recidivism on DATE .", "NORP The legal qualification of the charges was presented on DATE , on which date ORG started to hear the evidence for the defence .", "In a judgment of CARDINAL DATE , ORG acquitted the applicant of CARDINAL of the charges , namely receiving stolen goods and theft of a car . It found the applicant guilty of the remaining CARDINAL charges of theft and sentenced him to CARDINAL years’ imprisonment .", "The applicant appealed against his conviction and sentence . CARDINAL of his co - accused appealed , challenging exclusively the reasonableness of their sentence .", "The defendants introduced a number of requests for release on bail , for the examination of new witnesses and for leave to present further submissions . This led to the adjournment of the case on several occasions , in particular on DATE and on DATE , dates scheduled for the delivery of the judgment . The examination of the case was suspended from DATE until DATE because the presiding judge was ill .", "The delivery of the judgment was scheduled first for DATE , then for DATE ; however , the proceedings were adjourned as some of the accused wished to present further submissions and because the presiding judge had been assigned to a foreign tribunal . By an order of DATE ORG adjourned the proceedings sine die awaiting the outcome of the constitutional claim which the applicant had introduced in the meantime ( see infra , under PERSON “ The applicant ’s constitutional claim ” ) .", "NORP The proceedings were resumed after the determination of the applicant ’s constitutional claim , and on DATE ORG gave its final judgment . It reaffirmed that its role was not to interfere with the first court ’s appreciation of the evidence , as long as it was satisfied that the conclusions reached by ORG were lawful and reasonable . In the light of the material before it and having regard to the fact that the applicant had admitted his guilt , ORG confirmed the first - instance judgment .", "In the meantime , on DATE the applicant had filed a constitutional claim with ORG ( FAC ) . Invoking LAW CARDINAL of LAW , he complained about the length of the criminal proceedings and alleged that his trial had not been fair .", "In a judgment of CARDINAL DATE , ORG dismissed the applicant ’s claim .", "ORG observed that no delay could be imputed to the prosecution or to the trial court . The case was a rather complex one , as it involved many counts and a number of accused persons . Moreover , ORG had to hear several witnesses and to obtain many documents . Notwithstanding this , most of the requests for bail were decided on DATE , which was DATE after DATE of the arraignment . Some of the accused failed to appear at several hearings , thus obliging the trial court to adjourn the proceedings . There were also difficulties in controlling the various accused , as their behaviour during the hearings had obstructed the normal course of justice . As some of them did not respect the bail conditions , the police had to take action for the revocation of bail and ORG had to decide on this issue . Some witnesses were untraceable and others , albeit properly summoned , did not attend the sittings . There had been no excessive delay in the inquiries and it had to be taken into account that it was necessary to exhibit the record of the inquiry for every single charge . The prosecution had concluded the case within a reasonable time and the proceedings before ORG were conducted without any unnecessary delay .", "As to the proceedings before ORG , they were prolonged because of the great number of claims presented by the defence and the need to obtain several reports from prison officials and/or psychiatric experts on the behaviour of the defendants , with a view to considering the progress they had made while in prison . Apart from the period DATE and DATE , the case was never left dormant .", "Therefore , notwithstanding the fact that the case had been pending for DATE , there had been no substantial delay . It was true that most of the delay had been caused by the requests of other accused and not of the applicant himself . However , ORG considered that , the crimes being connected , it would not have been consonant with the proper administration of justice to separate the defendants’ respective situations .", "On DATE the applicant appealed against ORG judgment to ORG .", "In a judgment of DATE , the latter quashed the impugned judgment in so far as it concerned the applicant ’s complaint relating to the length of the criminal proceedings and declared that there had been a breach of the “ reasonable time ” principle . It also ordered the Attorney General to pay the applicant MONEY ( Lm – PERCENT ) as just satisfaction . It held that each party had to bear its own costs . ORG confirmed ORG judgment for the remainder .", "The Constitutional Court considered that there had been some delay at the appeal stage . The case was not particularly complex as the appeals concerned almost exclusively the measure of the penalty . Notwithstanding this , the case remained undecided for DATE and DATE and in DATE it was eventually referred to a new presiding magistrate . Even if it was true that the defendants presented a number of claims which had the effect of slowing down the proceedings , ORG had the duty to ensure that the duration of the trial was not excessive . As most of these claims had been introduced by the other defendants , and not by the applicant himself , there had been a violation of the “ reasonable time ” principle in respect of the latter ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and is detained at FAC . He was represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Agent , ORG and ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested on a charge of murder .", "On DATE the Bács - Kiskun County Regional Court convicted the applicant , a multiple recidivist , of attempted grave bodily assault and of aggravated murder committed with special cruelty . The court established that the applicant had first severely beaten up his common - law wife . DATE , while they were collecting firewood in a forest , he had again beaten and kicked her , tied her up , hanged her on a tree and then cut her loose , wrapped her face and head with adhesive tape , and finally killed her with a minimum of CARDINAL stabs with a knife . The crime was committed out of jealousy .", "The court imposed a life sentence on the applicant , with eligibility for release on parole after DATE , i.e. on DATE . The period spent in pre - trial detention after DATE was credited towards the prison term . When imposing the sentence , the court took into account the applicant ’s previous convictions for violent crimes , as well as the fact that his victim was his common - law wife and the mother of their CARDINAL minor children .", "On appeal , on DATE ORG upheld this sentence at a public hearing . This judgment was served on DATE .", "On DATE ORG dismissed , without an examination on the merits , the applicant ’s petition for review as inadmissible , since it was incompatible ratione materiae with the relevant provisions of LAW . On DATE his request for re - trial was dismissed .", "The LAW provides as follows :", "“ ( CARDINAL ) The President of the Republic shall ... exercise the right to grant individual pardon .", "( CARDINAL ) The counter - signature of the Prime Minister or the responsible Minister is required for all the measures ... of the President of the Republic listed in paragraph ( CARDINAL ) ... ”", "Act No . IV of DATE on LAW provides :", "“ The enforcement of the punishment is precluded by ...", "c ) a pardon ... ”", "Act No . XIX of DATE on LAW provides as relevant :", "“ ( CARDINAL ) LAW for pardon ... in respect of suppressing or reducing sanctions not yet executed ... shall be submitted DATE ex officio or on request DATE to the President of the Republic – by the minister in charge of justice .", "( CARDINAL ) [ Such a r]equest may be introduced by the defendant , his / her lawyer or ... relative . ...", "( CARDINAL ) A [ pardon ] request ... concerning a sanction not yet executed must be introduced to the first - instance trial court .", "( CARDINAL ) In the course of the pardon procedure , the court shall obtain ... such personal particulars of the defendant as necessary for the decision on pardon . ”", "“ ( CARDINAL ) The court ... shall forward the case documents and the request to the minister in charge of justice . ...", "( CARDINAL ) The minister in charge of justice shall forward the request to the President of the LOC even if s / he does not endorse it . ”" ]

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[ "The applicant is a GPE national born on CARDINAL DATE . At the time of the events now under examination , he was DATE .", "On DATE the applicant was released from a youth custody centre after serving a custodial sentence for rape .", "DATE , on DATE , the applicant was again arrested on suspicion of attempted rape . Following his arrest , he admitted the crime to the police .", "On DATE the applicant was brought before Judge PERSON , juvenile judge ( kinderrechter ) at ORG ( arrondissementsrechtbank ) , who sat in the capacity of investigating judge ( rechter - commissaris ) . The applicant was assisted by his lawyer . The private association which was the applicant ’s legal guardian was represented by CARDINAL social workers .", "The applicant again confessed .", "On an application by ORG ( officier van justitie ) , Juvenile Judge PERSON ordered the applicant to be placed in initial detention on remand ( bewaring ) . He also ordered a preliminary investigation ( gerechtelijk vooronderzoek ) with a view to having a psychiatric report drawn up . Neither the applicant nor his lawyer objected .", "Again on an application by ORG , Juvenile Judge PERSON , sitting in the capacity of review chamber ( raadkamer ) , made an order for the applicant ’s extended detention on remand ( gevangenhouding ) on CARDINAL DATE . He prolonged this order twice on the occasion of periodic reviews , on DATE and DATE . At no time did either the applicant or his lawyer raise any objection .", "In the course of the preliminary investigation , the applicant underwent a psychiatric examination . The resultant psychiatric report recommended that , if the charge were to be proven , the applicant should be sent to an institution for psychiatric treatment ( inrichting voor buitengewone behandeling ) , pursuant to LAW ) , but not punished .", "The defence , fearing that the applicant ’s initial confession had been obtained under duress , requested that the CARDINAL police officers who had taken down his initial statement following his arrest be questioned as witnesses . Juvenile Judge PERSON referred the matter to Judge PERSON , Vice - President of ORG and substitute juvenile judge . Judge PERSON questioned the CARDINAL police officers on CARDINAL and DATE . The results were such that the defence did not ask for them to be heard again at the trial .", "The preliminary investigation in the present case consisted only of the questioning of the said witnesses and the above - mentioned psychiatric examination .", "The applicant received a summons in DATE to appear before ORG Judge PERSON on DATE for trial .", "By letter of CARDINAL DATE , DATE before the trial was to take place , the applicant ’s lawyer challenged Juvenile Judge PERSON on the ground that he was not impartial , since he had taken pre - trial decisions concerning the applicant ’s detention on remand .", "Juvenile Judge PERSON rejected the challenge as ill - founded on DATE .", "The applicant appealed against this decision to ORG , which rejected the challenge on DATE . In its decision ORG considered in detail the relevance of the judgment of ORG in the case of PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) . ORG was of the opinion that there was a fundamental difference between the position of a NORP investigating judge and that of a GPE juvenile judge , particularly as far as their independence was concerned . It further held that the FAC judgment did not imply that the performance of the functions of investigating judge and trial judge in the same case constituted a breach of Article CARDINAL para . CARDINAL ( article CARDINAL ) under all circumstances . GPE juvenile criminal procedure provided for an exception to the rule of general criminal procedure prohibiting the combination in a single person of the functions of investigating judge and trial judge ( see paragraph CARDINAL ( a ) below ) . As the juvenile judge had rightly emphasised in his decision , the reason for this was to be found in the pre - eminence of the educational aspect of juvenile criminal law and the importance of optimally co - ordinating the various decisions taken with regard to the minor .", "The applicant was eventually tried on DATE , by Juvenile Judge PERSON . He was assisted by his lawyer . CARDINAL of the social workers representing the private association which was the applicant ’s legal guardian was also present and allowed to speak .", "Confirming his earlier statements , the applicant admitted the charge , which was then held to be proven in the light of the evidence . In accordance with the recommendation contained in the psychiatric report ( see paragraph CARDINAL above ) , the applicant was committed to an institution for the psychiatric treatment of juvenile offenders pursuant to LAW . He was reminded by the juvenile judge of the right to appeal , but the applicant ’s lawyer , who alone could decide to do so ( see paragraph CARDINAL below ) , did not file an appeal .", "In DATE Juvenile Judge PERSON carried out the DATE review required by Article PERSON of LAW to determine whether or not it continued to be in the applicant ’s interests for him to remain in the institution . Apparently neither the applicant nor his lawyer raised any objection to the prolongation of the measure . The applicant was released unconditionally on DATE .", "Since DATE it has been the rule in the GPE not to apply penal law and criminal procedure to juveniles in the same way as to adults . Juvenile penal law and criminal procedure provide for exceptions to the general law : that is , general penal law and criminal procedure apply to the extent that they are not expressly deviated from .", "Juveniles can not be prosecuted for acts committed before DATE ( Article PERSON of LAW ) .", "Juvenile criminal procedure applies if the suspect has not yet reached DATE when a prosecution against him is commenced ( Article CARDINAL of LAW ( PERSON ) ) .", "In principle , the same age - limit applies in juvenile penal law ( Article CARDINALb of LAW ) . However , subject to certain conditions , LAW makes it possible on the one hand to apply general penal law to a suspect who at the time of the offence was DATE or DATE ( LAW , ibid . ) , and on the other hand to apply juvenile penal law to a suspect who at the time of the offence had reached the age of DATE but not yet that of QUANTITY ( Article GPE , ibid . ) .", "Juvenile penal law is different from that applying to adults only in that it has its own system of punishments ( straffen ) and curative or protective measures ( maatregelen ) designed to meet the specific aims of this branch of criminal law which ( in the words of the Explanatory Note to the Act of DATE - see paragraph CARDINAL below ) \" has primarily a pedagogical purpose , the interests of the minor being borne in mind at all times \" , and which , accordingly , seeks mainly to protect and educate the juvenile concerned .", "Punishments available under juvenile penal law are placement in a youth custody centre ( tuchtschool ) for DATE , juvenile detention ( arrest ) for DATE , a fine of MONEY and a reprimand ( berisping ) ( LAW ) . The measures include , inter alia , judicial supervision ( ondertoezichtstelling ) - which is in fact a protective measure under civil law ( ORG CARDINAL:CARDINAL et seq . of LAW ( PERSON ) ) - and committal to an institution for the psychiatric treatment of young offenders ( Article CARDINALh ) . The latter is a curative measure applied only to young persons with impaired mental development or suffering from a serious mental disturbance ( Article CARDINAL ) .", "Juvenile criminal procedure also seeks to protect and educate , but here the differences from general criminal procedure are considerable .", "The underlying principle of juvenile criminal procedure is that it", "\" should be simple and understandable for both the minors concerned and their parents . Formalities which have some purpose for adults but are practically devoid of purpose in relation to minors should be omitted , whereas on the other hand special requirements should ensure proper treatment of juvenile cases \" . ( Quoted from the Explanatory Note to the LAW DATE , which Act entered into force in DATE , by which juvenile criminal procedure - introduced in DATE and thoroughly reviewed in DATE - was modernised )", "It is by reason of this basic idea and of the need to improve the protection of juveniles by creating links with the protection of juveniles in civil law - in which the juvenile judge is the central actor and is empowered to order various protective measures - that the juvenile judge is the central actor in juvenile criminal procedure also . Several advantages are claimed for this system :", "( a ) it is conducive to the protection of the juvenile if the juvenile judge is consulted beforehand on the subject of the desirability of criminal prosecution , especially if he already knows the minor concerned ; this may be the case for example if he has been involved in protective measures under civil law , such as placing the minor under judicial supervision ;", "( b ) a relationship of trust may develop between the juvenile judge on the one hand and the minor and his or her parents or guardian on the other owing to the fact that the minor and his or her parents or guardian ( who are summoned to appear at the preliminary investigation stage and the trial and have the right to speak ) are dealt with by one and the same judge throughout the proceedings , which moreover are held in private and in an informal manner ;", "( c ) in those cases in which the juvenile has made an immediate confession - as usually happens when the suspect is a minor - a plan may be developed at an early stage for the future of the juvenile concerned , even during the preliminary investigation ;", "( d ) the juvenile judge is the most suitable person for the purpose in view of his expert knowledge and his considerable decision - making powers .", "The close link between protective measures under civil law and criminal prosecution may be seen in LAW ; if there are proceedings relating to the protection of the minor under civil law ( such as a request to have him or her placed under judicial supervision or aimed at divesting the parents of their parental rights ) running parallel to the criminal prosecution , then under this provision the prosecution may be suspended until a final decision has been taken in those parallel proceedings .", "The central position of the juvenile judge appears clearly from the fact that the juvenile judge is involved in the decision whether or not to prosecute . According to LAW , if ORG wishes to drop charges against a minor unconditionally , he must first consult the juvenile judge ; if he wishes to do so conditionally , he requires the juvenile judge ’s consent . If charges are not dropped immediately , ORG must obtain from the child welfare authorities information on the minor ’s personality and living conditions ; they may then comment on the desirability of prosecution ( ibid . , LAW .", "In order to implement these provisions effectively , it has been the practice for the juvenile judge , ORG and the representative of the child welfare authorities to meet on a regular basis to discuss case files together . This so - called \" CARDINAL - way consultation \" ( driehoeksoverleg ) took place in the absence of the minor or his legal representative or counsel , and without their being informed about it .", "The juvenile judge is also the central figure in the investigation phase .", "( a ) This is clear in the first place from Article CARDINAL of LAW , which stipulates that the juvenile judge is to act as investigating judge , and from LAW , which reads :", "\" CARDINAL . The juvenile judge shall be responsible for the preliminary investigation , unless the case involves CARDINAL or more suspects who have reached DATE at the moment the prosecution against them is commenced and the case can not , in the initial opinion of ORG and the juvenile judge , be divided .", "In cases where the juvenile judge orders a preliminary investigation , he shall be regarded as investigating judge responsible for the preliminary investigation . \"", "This means that the juvenile judge has all the decision- making powers of an investigating judge and that he is in charge of the preliminary investigation .", "A preliminary investigation may involve such matters as obtaining expert opinions and technical evidence , questioning witnesses , mail and telephone interceptions , searches and visits to the scene of the crime , as well as interrogation of the suspect .", "According to LAW , a judge who has undertaken any investigation in the case as an investigating judge is debarred from taking part in the trial ; however , by virtue of Article CARDINALd , this provision does not apply in juvenile procedure .", "( b ) It is also the juvenile judge who takes all decisions concerning detention on remand . In adult criminal procedure , initial detention on remand ( for a maximum of DATE , which may be prolonged once for DATE ) is ordered by the investigating judge and extended detention on remand ( for a maximum of DATE , which may be prolonged twice for further periods of DATE ) by the review chamber of ORG . In juvenile criminal procedure , the juvenile judge exercises both these powers ; he not only officiates as investigating judge but also , pursuant to Article CARDINAL , as review chamber . CARDINAL consequence of this is that in cases where in adult criminal procedure an appeal against decisions of the investigating judge lies to the review chamber , and to the extent that such appeals are allowed in juvenile procedure , the juvenile judge may be called upon to hear appeals against some of his own decisions .", "The central position of the juvenile judge further appears from the fact that it is , as a rule , the juvenile judge himself who , sitting as a single judge , conducts the trial and gives judgment ( Article CARDINAL para . CARDINAL ) . It is for the juvenile judge to decide whether or not the case is one that should be referred to a chamber consisting of the juvenile judge and CARDINAL other judges ( Article CARDINAL para . CARDINAL , in conjunction with Article ORG ) .", "The juvenile judge is also involved to a significant degree with the execution of the punishment or measure imposed . For example , a sentence to the punishment of juvenile detention is not executed until the judge who imposed it has been consulted ( LAW ) and the punishment of reprimand is administered personally by the judge who imposed it ( LAW ) .", "If the juvenile concerned has not yet reached DATE , then it is his lawyer who enjoys all the procedural rights afforded the suspect by LAW ) instead of the juvenile himself ( with the exception of the rights which the suspect may avail himself of during the hearing ) ( LAW para . CARDINAL ) . However , the juvenile ’s legal guardian ( wettelijke vertegenwoordiger ) may file a note of protest to the president of the court with jurisdiction as to both facts and law before which the juvenile is being prosecuted or was last prosecuted if he disapproves of the lawyer ’s use of these rights or his failure to make use of them ( LAW para . CARDINAL ) .", "Pursuant to LAW ( Wet op de Rechterlijke Organisatie ) an appeal against the judgment of the juvenile judge lies to ORG ( gerechtshof ) . Such an appeal involves a complete re - examination of the case by CARDINAL judges ( LAW ) .", "For a long time there has been criticism of the system described above . For this reason , a committee for the revision of juvenile criminal law was set up in DATE and it published a report in DATE . Criticism of the existing system in legal writing increased as a result of this report and of the judgments of ORG in the cases of PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) and GPE v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) . However , opinion is still divided on the question to what extent it is necessary to modify the present system .", "These factors have resulted in informal changes in the way the system operates ( see paragraph CARDINAL below ) and a proposal for a change of the law ( see paragraph CARDINAL below ) . In this connection , it is also useful to mention a development in GPE case - law ( see paragraph CARDINAL below ) .", "In the first place , there is now an informal arrangement under which the juvenile judge , when confronted with a suspect who denies charges , entrusts the interrogation of witnesses to another juvenile judge and to that extent does not act as investigating judge . However , even in such cases he continues to take the decisions on detention on remand .", "Secondly , \" CARDINAL - way consultations \" ( see paragraph CARDINAL above ) have been discontinued at ORG .", "A proposal for an amendment of the law was sent to ORG in DATE ; the written procedure has not yet been completed . It essentially follows the suggestions of the committee referred to in paragraph CARDINAL above , the gist of which is to remove from the juvenile judge the functions of investigating judge and review chamber . However , the proposal differs from those suggestions in that the juvenile judge is to retain the power to order initial detention on remand .", "This last feature corresponds to the case - law of ORG ( PERSON ) , particularly its judgments of DATE , GPE ( PERSON ) DATE , no . CARDINAL and CARDINAL DATE , GPE DATE , no . CARDINAL . In the first - mentioned judgment ORG construed Article CARDINAL of the Code of Criminal Procedure ( see paragraph CARDINAL above ) as meaning that an investigating judge who had not carried out any preliminary investigations but had given the order for initial detention on remand was not debarred from sitting at the trial . This was not held to jeopardise his independence . The judgment of DATE concerned a juvenile judge who sat at the trial pursuant to Article ORG ( see paragraph CARDINAL above ) after he had instituted a preliminary investigation in the case as investigating judge . ORG held that as a result one of the judges taking part in the trial lacked impartiality as required by DATE ( article CARDINAL ) of the Convention . According to ORG , such would always be the case if", "\" CARDINAL of those judges [ had ] previously had dealings in the same case aimed at the collection of evidence , either as an investigating judge in the course of the preliminary investigation or in another way during the investigations preparing the case \" .", "As far as the preconditions for initial and extended detention on remand are concerned , juvenile criminal procedure does not differ from adult criminal procedure . They are to be found in CARDINAL and DATE of the Code of Criminal Procedure .", "LAW enumerates the cases in which detention on remand ( voorlopige hechtenis ) may be ordered ; for present purposes , these may be summarised as those cases in which a person is suspected of a relatively serious crime ( paragraphs CARDINAL and CARDINAL ) . In addition , paragraph CARDINAL of LAW provides as follows :", "\" The preceding paragraphs of this Article shall only be applied if it appears from certain facts or circumstances that there are serious indications ( ernstige bezwaren ) against the suspect . \"", "In this connection , the Memorandum in Reply ( PERSON ) accompanying a proposal for amendment of the statutory provisions governing detention on remand states that there are such serious indications when in the opinion of the investigating judge", "\" it is prima facie likely ( aannemelijk ) that the suspect has committed the offence in relation to which detention on remand is applied for \" . ( see ORG PERSON to ORG -CARDINAL - CARDINAL-No . CARDINAL , page CARDINAL )", "Article ORG enumerates the reasons for which detention on remand may be ordered . These may be summarised as the serious risk of the suspect ’s absconding ; the fact that the crime , being of a particularly grave nature , has created considerable social unrest ; the serious risk that the suspect will commit more crimes of a grave nature and the need to secure evidence .", "However , paragraph CARDINAL of Article PERSON provides :", "\" An order for detention on remand shall not be made if there exists a distinct possibility that in the event of conviction no unconditional prison sentence or measure involving loss of liberty will be imposed on the suspect , or that implementation of the order will cause [ the suspect ] to be deprived of his liberty for longer than the duration of the sentence or the measure . \"" ]

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[ "On DATE the applicants’ DATE daughter , PERSON , underwent heart surgery at ORG in GPE ( GPE ) .", "On DATE PERSON was admitted to the same hospital for a postoperative check - up .", "On DATE she became feverish and vomited blood . The doctors diagnosed rhinopharyngitis and prescribed antibiotics . On DATE the doctors decided to allow the child to leave the hospital .", "In TIME of the same day the applicants telephoned the hospital because PERSON was feverish again .", "On DATE the applicants took the child to a doctor , who diagnosed pneumonia , telephoned the hospital and requested that PERSON be admitted to hospital immediately . On arriving at the hospital PERSON was initially taken to the cardiology unit . When she fell into a coma she was transferred to the intensive care unit . The doctors said that she had a serious infection in the left lung , which had weakened her heart .", "On DATE PERSON died .", "On DATE the applicants lodged a complaint with the PERSON public prosecutor . On DATE an inquiry into the causes of death was opened .", "On DATE the investigating judge , Miss PERSON , instructed ORG to seize PERSON ’s medical file and question the members of the medical staff who had looked after PERSON . On DATE ORG reported back to the judge with its incomplete findings .", "On DATE the investigating judge ordered an autopsy , which was carried out on DATE . Several tissue samples were taken in case a further examination was needed . The autopsy report , dated DATE , concluded that at the time of PERSON ’s death she had been suffering from an acute respiratory infection .", "On DATE the investigating judge commissioned a further anatomopathological report from Professor PERSON , an expert in forensic medicine , and PERSON , a heart specialist , giving them until DATE to submit their report .", "On DATE the investigating judge asked them to send her their report by the “ absolute deadline of DATE ” .", "From the date of the autopsy onwards the applicants sent numerous letters to the NORP consulate - general in GPE , ORG in GPE and NORP members of ORG with the aim of securing the return of PERSON ’s body .", "In GPE a number of MPs put parliamentary questions to the government and held press conferences on the case . Several newspaper articles were published on the subject .", "NORP The NORP consul - general made repeated representations to the investigating judge , including letters sent on DATE , DATE and DATE , and forwarded the information he had obtained to the applicants .", "In DATE the consul - general made a formal complaint to the public prosecutor , who demanded an explanation from Professor PERSON In a letter of CARDINAL DATE , Professor PERSON replied as follows :", "“ The autopsy was carried out on DATE and the investigating judge was immediately notified of the results by telephone . She was told that all the necessary samples of tissue from the internal organs had been taken and that the body could be returned to the family as from DATE .", "The internal organs were to be studied subsequently from an anatomopathological viewpoint and this was done on DATE and DATE , but I had also been instructed to examine the medical file and seek the opinion of another expert , which was done on DATE . When the seals were removed it was discovered that the intensive - care file was missing , and so we contacted our colleagues , who sent us a copy of it which we are currently examining .", "The medical file is complex and it is essential that we have a certain amount of time to study it , but there is no reason to keep the body at ORG .", "The administrative authorities of ORG have repeatedly expressed concern at the length of time the body has been kept in storage . On DATE , CARDINAL DATE and CARDINAL DATE and on DATE they contacted PERSON , the investigating judge at ORG , who is in charge of the case . She said that she was awaiting the outcome of the anatomopathological examination , but the latter is part of a longer task of investigation and analysis which has not yet been completed .", "Miss PERSON is therefore completely free to release the body from ORG and hence to sign the burial certificate , leaving the doctors the necessary time to carry out their work . ”", "On DATE , on receiving the above letter , the public prosecutor asked the investigating judge to order that PERSON ’s body be returned to her family .", "On DATE investigating judge PERSON , standing in for Miss PERSON , issued a burial certificate .", "On DATE PERSON was buried at FAC .", "On DATE Miss M. wrote to Professor L. , expressing surprise that after DATE the report had not yet been filed and asking him to inform her of any difficulties or obstacles that might explain the failure to do so .", "On DATE Professor PERSON replied that there had been “ a problem with a discrepancy between the anatomical observations and the information in the medical file ” , which meant that the experts had had to organise interviews with the doctors who had looked after the child , scheduled for DATE .", "The experts’ report was filed on DATE . They concluded that “ there was no possibility of life - saving surgery ” and there were no signs of “ any mistaken treatment ” .", "In a letter of DATE a deputy public prosecutor informed the applicants that their case had been dropped because none of the expert reports ordered by the investigating judge had revealed any medical negligence , error of diagnosis or mistaken treatment that could possibly amount to a criminal offence .", "Article CARDINAL of the Code of Criminal Procedure provides :", "“ On discovery of a dead body , regardless of whether the deceased suffered a violent death , but wherever the cause of death is unknown or suspicious , the senior police officer who is advised thereof shall immediately notify the public prosecutor , promptly visit the place of discovery and make initial observations .", "The public prosecutor shall visit the place if he deems it necessary and shall call on the assistance of persons qualified to assess the circumstances in which death took place . He may , however , delegate those tasks to a senior police officer of his choice .", "Except where their names appear in one of the lists provided for in LAW , persons appointed in this way shall take a written oath to assist the courts on their honour and according to their conscience .", "The public prosecutor may also call for an inquiry to investigate the causes of death . ”" ]

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[ "NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant 's son PERSON was killed in a road traffic accident on DATE in GPE . He was travelling in the car with : PERSON , PERSON , who was taken by ambulance to FAC , where she died TIME after intensive surgery ; PERSON , the driver of the vehicle , who died on the spot ; and Mr PERSON 's bodyguard , PERSON , who was seriously injured .", "At the request of the public prosecutor and Professor PERSON , the requisitioned forensic pathologist , Chief Inspector Mules , a senior police officer with the serious crime squad , was present when the body of PERSON underwent an external forensic examination , at TIME , with no taking of body samples , and the officer was provided with the pathologist 's report at TIME During DATE , following an official ceremony , the coffin was conveyed in a cortege to Villacoublay airport , after a burial permit had been issued and the NORP authorities had made the necessary arrangements for repatriation of the body to GPE .", "The body of the applicant 's son was taken to ORG for an examination by Professor PERSON , with the assistance of Chief Inspector PERSON . The police officer 's report mentioned that the pathologist 's report had been given to him at TIME and that “ blood , urine and other usual samples ” had been taken .", "NORP The pathologist 's report concerning the autopsy on the driver 's body was given to Chief Inspector PERSON at TIME", "On DATE the public prosecutor of GPE applied for the opening of a judicial investigation in respect of charges of unintentional homicide and wounding and failure to assist a person in danger . The case was assigned to an investigating judge at the GPE tribunal de grande instance and a second investigating judge was appointed later in the proceedings .", "In a letter of DATE from CARDINAL of his lawyers , the applicant applied to join the proceedings as a civil party .", "CARDINALand in particular the press photographers ' insistent and intense activity which culminated in their pursuit of the car in which the victims were travelling , CARDINAL photographers were placed under judicial investigation on charges of unintentional homicide and wounding and failure to assist a person in danger .", "On DATE Chief Inspector PERSON drafted a report stating that , contrary to the indication on the report drawn up on DATE of the autopsy , no samples had been taken from the body of the applicant 's son and that the forensic pathologist had only carried out an external examination of the body in accordance with the instructions received .", "On DATE the investigating judge requested Professor PERSON to provide all useful indications for the purpose of establishing whether or not the injuries on the bodies of the CARDINAL victims had been such as to have resulted in their instantaneous death .", "NORP In a report of DATE Professor PERSON indicated that an external examination of the body of PERSON could not by itself provide the answer to that question and that it would be necessary to examine the records of the emergency paramedics ( the ORG ) present at the scene of the accident and the autopsy report . The expert pathologist also considered that the external examination of PERSON body and her surgical treatment were not sufficient either and that only an autopsy could provide additional information concerning organs .", "It was also stated by the applicant that , from the beginning of the investigation , the investigating judge had decided to make enquiries in order to identify a vehicle and its driver that had been involved in the accident according to witnesses and in the light of technical analysis by the national gendarmerie . Those enquiries were discontinued in the course of the investigation .", "On DATE the investigating judge appointed Professors PERSON and PERSON as experts with the following assignments : to apprise themselves of all current and future material in the case file , documents from medical records to be obtained in GPE and any useful medical documents that might be forthcoming from the NORP authorities ; to provide any useful medical indications , in particular on the exact causes , circumstances and precise time of the deaths and on the treatment dispensed at the scene of the crash ; and , as regards PERSON , to indicate what treatment was given to her in the ambulance and then at the hospital , and whether it was in conformity with current medical knowledge .", "On DATE the investigating judge supplemented the experts ' assignment by authorising them to hear representations from any person other than those under judicial investigation and giving them the opportunity to consult specially qualified persons for the purpose of completing their assignment .", "In their report of CARDINAL DATE the CARDINAL experts noted in particular that there had been no determination of blood group or biological examination in respect of PERSON . They further indicated that they had visited GPE on DATE to apprise themselves of the particulars of her autopsy and that they had met CARDINAL doctors and a senior police officer during that visit . They had been informed by a forensic pathologist there that the description of the injuries had been made difficult by the fact that the body had been embalmed before departure from GPE . Moreover , the CARDINAL NORP experts mentioned that copies of the autopsy reports had been given to them “ on a personal basis ” . The applicant indicated that since the documents had been supplied “ on a personal basis ” they had not been added by the experts to the case file .", "The applicant further alleged that there had been a persistent rumour , relayed by numerous press articles and a certain number of published books that had been added to the investigation file , to the effect that the NORP and GPE intelligence services had possessed material information on the circumstances surrounding the death of his son and the other passengers in the car . The applicant pointed out that , according to a number of documents in the investigation file , the judge had also received information to that effect from ORG in GPE .", "On DATE the investigating judge examined PERSON , a former officer of the NORP intelligence service MICARDINAL . PERSON complemented his statements by letters dated DATE and DATE . In his letter of DATE he mentioned the involvement of CARDINAL counsellors at FAC in GPE , who were presumed to be members of MICARDINAL . In another letter of DATE he informed the judge that he had recently become aware of a new fact that might be of interest for the investigation into the deaths of PERSON and PERSON . That letter was not followed up and PERSON 's lawyer in turn wrote , without success , to the investigating judge to seek the examination of his client .", "The investigating judge sent CARDINAL letters , on CARDINAL and DATE to the Secretary for ORG at FAC in GPE . The Secretary replied on DATE and DATE .", "The applicant considered that there had not been any precise response , still less any statement under oath , concerning : the possibility , referred to by PERSON , that PERSON had been a correspondent for NORP intelligence ; the presence in GPE at the material time of the CARDINAL above - mentioned counsellors to ORG in GPE ; and the presence of an unknown person , claiming to be a NORP photographer , seen in front of the ORG before the departure of the vehicle by the photographers under investigation . Accordingly , he called for the examination of the CARDINAL Embassy counsellors and the Secretary for ORG , in order to shed light on certain questions . He also sought the examination of representatives from ORG ( ORG ) , which he claimed had a file concerning surveillance of PERSON . The applicant added that an official letter from the ORG confirmed the existence of such surveillance and of a CARDINAL,CARDINAL-page file on the subject .", "NORP In a decision of DATE the investigating judge dismissed a request for additional investigative measures made by the applicant on DATE concerning the damaged vehicle , certain calls made by mobile phone at the material time and the area covered by cell sites . The judge also dismissed a request from PERSON and PERSON , submitted on DATE , also concerning mobile phones and the damaged vehicle but also seeking an additional expert 's report on the level of carboxyhaemoglobin observed in their son 's blood .", "By notice of CARDINAL DATE the judges investigating the unintentional homicide charges informed the applicant 's counsel that their investigation appeared to be at an end and that they intended to transmit the case file to the public prosecutor . Counsel for the applicant replied in a letter and note dated DATE .", "On DATE the investigating judges dismissed the requests for examination of members of ORG and the ORG . They also dismissed a request from PERSON and PERSON for a confrontation with experts . The applicant appealed .", "NORP In a judgment of DATE ORG of ORG upheld the decisions of DATE and DATE dismissing the requests for investigative measures .", "In another judgment of DATE , ORG of ORG upheld the decision of DATE .", "On DATE the investigating judges discontinued the proceedings against all the individuals under investigation . They also dismissed a request from Mr and PERSON seeking the restitution of certain samples taken from their son 's body .", "On DATE counsel for the applicant wrote a letter to the public prosecutor at the GPE tribunal de grande instance seeking to ascertain : the reasons why the case file did not contain PERSON autopsy report , which had been given to the NORP experts by their NORP counterparts and information as to its destination ; the circumstances in which the Princess ' body had been embalmed while still in GPE and the reasons for that measure , with its prejudicial consequences for a subsequent autopsy ; whether or not samples had been taken from the body of his son , in view of the corrective statement of DATE , and from that of PERSON , having regard to the examinations carried out in GPE .", "In a letter of DATE the public prosecutor declared the requests inadmissible , having regard to the judicial investigation , the discontinuance decision and the referral of the case to ORG .", "In a judgment of DATE ORG of ORG upheld the discontinuance decision . Moreover , it held that the samples taken for analysis in the course of judicial proceedings were not covered by the provisions on restitution in LAW . After noting that the request called into question the blood analyses , the court found that the requested action was not necessary for discovery of the truth , since the results of those analyses were not such as to exonerate from criminal responsibility any third party or parties that may have contributed to the damage .", "In a judgment of DATE ORG ordered the return to the investigating judge of the case file opened on the basis of a complaint , with civil - party application , for unlawful invasion of privacy , requiring the judge to continue his investigation speedily as “ the court [ could not ] but deplore the lack of activity for DATE ” .", "In a decision of DATE the urgent applications judge of the GPE tribunal de grande instance dismissed a similar request from ORG , on the ground that only the criminal court which had ordered that those samples be administered by the courts was competent to order their restitution or to appoint an expert for their examination . The applicant considered that this decision contained a contradiction as it referred to a letter dated DATE from ORG at ORG to the parents of PERSON in which they had been assured that the samples would be retained for the subsequent proceedings , whilst it also quoted the said expert 's comment on “ the total unreliability of the blood alcohol analyses DATE after the samples were taken ” .", "On DATE ORG upheld the decision . An appeal on points of law was lodged .", "On DATE PERSON and PERSON filed a criminal complaint with civil - party application for the falsification of data by the CARDINAL court - appointed experts responsible for analysing the samples taken from their son 's body , on account of failure to comply with the statutory procedures for taking samples and with conservation requirements , and in respect of subsequent work . Their complaint was based above all on the statements of CARDINAL of those experts in the course of civil proceedings and on the results of a private analysis carried out by ORG , GPE and PERSON , who had indicated a certain number of major shortcomings in the forensic examinations .", "In a judgment of DATE , of which notice was given on DATE , ORG declared inadmissible the applicant 's appeal on points of law in respect of the third and fourth grounds of appeal ( challenging the judgment upholding the dropping of charges of unintentional homicide and failure to assist a person in danger ) , on the basis of LAW . ORG dismissed the first ground of appeal ( concerning the fact that the principal investigating judge and his deputy were joint signatories of the discontinuance decision ) and the second ( concerning the refusal to join these proceedings to those arising from the applicant 's criminal complaint and civil - party application of DATE for the offence of unlawful invasion of privacy committed against his son and PERSON ) .", "On DATE a decision refusing investigative measures was made in the context of the investigation opened following the criminal complaint filed by PERSON and PERSON on DATE for falsification of data , proceedings in which the applicant had applied for civil - party status . Subsequently , in a judgment of DATE ORG of ORG reclassified a discontinuance decision of DATE as a decision not to open an investigation and ordered the continuation of the investigation by the judge assigned to the case . On DATE ORG granted an application by the applicant to disqualify the court from hearing the case on grounds of apprehended bias and transferred the case to the GPE tribunal de grande instance for the judicial investigation , which is still in progress .", "On DATE , in the letter in which the applicant applied for civil - party status in the judicial investigation opened that same day in respect of unintentional homicide and wounding and failure to assist a person in danger , he further indicated as follows :", "“ ... presumably because a public prosecution may only be brought on the basis of a criminal complaint by the victim , his representative or his heirs , in accordance with the provisions of LAW , the originating application for a judicial investigation does not refer to the offence of attempted invasion of privacy , as provided for and punishable under ORG CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW , whereas it appears to me that such a charge is made out , as the photographers who were pursuing the vehicle before it crashed clearly intended to take photographs invading the privacy of PERSON and PERSON .", "The prosecution of that offence is crucial , in so far as it had continuously been committed by the photographers throughout DATE , but also , and above all , after the couple had left FAC and during the pursuit , of which the route , via the Alma underpass in particular , can be attributed solely to that pursuit .", "The acts constituting that offence , in so far as they played a major part in the organisation of the departure from the hotel and in the driving of the car , form the initial and decisive element in the causal chain that led to the death of the CARDINAL victims .", "I therefore submit to you an additional application by Mr PERSON , in his capacity as heir of Mr PERSON , to be granted civil - party status in respect of the charge of attempted invasion of privacy , on the basis of LAW , kindly requesting you to transmit the file to the public prosecutor with a view to obtaining his authorisation for the extension of the judicial investigation to encompass that charge ... ”", "On DATE , as no reply to that request had been received , the applicant lodged with the senior investigating judge a criminal complaint , together with a civil - party application , for the criminal offence of unlawful invasion of privacy . He reiterated his arguments , emphasising the close connection between the subject - matter of this complaint and that of the investigation by the investigating judges , opened on DATE , and indicated “ that it [ would ] therefore [ be ] particularly appropriate , for the proper administration of justice ” , to entrust the complaint to the same judges by joining the CARDINAL sets of proceedings .", "The judicial investigation in respect of that complaint was entrusted to CARDINAL of the CARDINAL judges responsible for the investigation opened on DATE , but the CARDINAL sets of proceedings were not joined .", "On DATE representations from the applicant were heard .", "On DATE the applicant 's counsel wrote to the investigating judge to point out that the judge 's inactivity in the investigation in respect of the complaint of CARDINAL DATE “ could be understood to the extent that the joinder of those proceedings with the main set of proceedings [ had been ] envisaged ” , and to reiterate his request for joinder , in view of the lack of investigative measures , informing the judge that he would otherwise refer the matter to ORG .", "On DATE the investigating judge issued a warrant for purposes of “ making enquiries to determine comprehensively the particulars of the offence and to identify all perpetrators , co - perpetrators and accomplices ” , without any other indication as to the required measures .", "In a note of CARDINAL DATE , drafted in response to the notice of CARDINAL DATE in the other proceedings , the applicant 's counsel dwelt at length on the facts that characterised the offence of unlawful invasion of privacy with which the photographers could be charged , and pointed out the case - law to the effect that such a charge was made out when photographs were taken through the windows of a private vehicle , adding that , on account of the inseverable nature of the facts , it was necessary to join the proceedings , as had been requested on several occasions , and that joinder would likewise be justified “ if the investigating judges were to consider that the charge of unlawful invasion of privacy was actually made out by the findings of their principal investigation ” .", "The police officers to whom the warrant had been addressed reported back to the investigating judge on DATE , DATE after the discontinuance decision of DATE in the investigation concerning the unintentional homicide charge . From DATE , the date of referral to them , until DATE , the date of their transmission report , the police officers drew up CARDINAL reports simply concerning the contacts they had had with the investigating judge .", "On DATE the applicant requested the examination of the photographers whose presence at the scene of the accident had been established in the first investigation . His request having remained unanswered , he referred the matter to ORG by an application of DATE .", "That ORG examined the case file on DATE . In the course of the hearing the applicant learned from the public prosecutor 's submissions that the case file contained only a copy of the discontinuance decision of DATE and , moreover , that it had not been accompanied by a record of joinder of documents .", "Furthermore , the case file having been transmitted to ORG without a copy first being made or kept , the applicant 's counsel was unable to consult the file in the investigating judge 's office after the hearing of DATE in ORG .", "On DATE the applicant brought proceedings against the Government Law Officer ( agent judiciaire du Trésor ) to obtain a ruling that the ORG 's responsibility was engaged on account of gross negligence and denial of justice in the handling of his criminal complaint of DATE .", "In a judgment of DATE ORG of ORG ordered the return of the case file to the investigating judge in GPE for the continuation of the judicial investigation , with in particular the examination of certain expressly named individuals . In its judgment ORG found in particular as follows :", "“ An examination of the case file reveals that , with the exception of representations from the civil party and a warrant upon which no action was taken , the successive investigating judges took no other investigative measure .", "Contrary to the indications of counsel for the civil party , this case file does not contain a copy of the investigation file in respect of the charges of unintentional homicide and wounding and failure to assist a person in danger , but only a copy of the discontinuance decision .", "... Under these circumstances it is appropriate to return the case file to the investigating judge in order that , notwithstanding the workload of his office , he should continue the investigation speedily ... ; the court can not but deplore the lack of activity for DATE ... ”", "DATE . On DATE the GPE tribunal de grande instance , ruling in the context of the proceedings brought on DATE , dismissed the applicant 's complaint . He appealed against this judgment .", "On DATE the investigating judge issued a decision of partial discontinuance in respect of CARDINAL of the individuals under investigation and ordered that CARDINAL other photographers be committed to stand trial before ORG for unlawful invasion of privacy . The case was set down for hearing on DATE .", "In a judgment of DATE ORG reversed the judgment of DATE , finding that the responsibility of the ORG was engaged on account of gross negligence in the administration of justice and of a denial of justice . Its main findings read as follows :", "“ ... from the outset , it was established that the CARDINAL judicial investigations opened were connected ; the Government Law Officer , who accepts this , also acknowledges that ' the results of CARDINAL and its procedural developments naturally influenced the conducting of the other ' .", "Accordingly , whilst the investigating judge is not obliged , procedurally speaking , to order the joinder requested insistently by PERSON , the decision not to join the investigations DATE a measure of judicial administration left to the judge 's discretion – is nevertheless part of the series of facts relied upon by the appellant in support of his claims .", "Mr PERSON is justified in observing that , in deciding on the discontinuance of the unintentional homicide investigation , the investigating judge made an assessment of the facts set out in the complaint submitted to him for the second investigation ...", "As has been claimed quite rightly by PERSON , it transpires that , in order to assess criminal responsibility in the first investigation , it was necessary to examine the reality of the facts involved in the second and the potential classification of those facts as a criminal offence could not be indifferent to the first . Accordingly , contrary to the argument of the Government Law Officer it was not appropriate to carry out CARDINAL successive investigations .", "...", "The inactivity of the successive judges ... was noted by this court in its judgment of DATE , when it found that it could not ' but deplore the lack of activity for DATE .", "...", "It transpires from these findings that the judges responsible for conducting the CARDINAL investigations into connected facts , while refusing to join the investigations , omitted for DATE to take any investigative measures in respect of Mr PERSON complaint .", "...", "Contrary to the argument of the Government Law Officer and contrary to the findings of the court below , the conduct of the investigating judges can not be explained by the fact that the investigations carried out in the first set of proceedings were capable of ensuring progress in the second set , and thus that it was out of a concern for efficiency in establishing the truth that the investigating judges gave priority to investigative measures concerning the unintentional wounding and homicide charges and adopted a strategy which resulted in their investigating the CARDINAL cases successively .", "It has been noted , first of all , that the outcome of the second investigation was not indifferent to the first . Contrary to the argument of the Government Law Officer , the results of the investigations opened on charges of unintentional homicide and wounding and failure to assist a person in danger were certainly not decisive for the continuation of the proceedings concerning unlawful invasion of privacy . In addition , if the investigations conducted were useful to both sets of proceedings , the refusal to join them can not be explained . Moreover , if that were the case , it was necessary to add to the case file of the second investigation any documents from the first that might be useful for the judicial investigation into the allegation of unlawful invasion of privacy , but this was only done after the bringing of the present proceedings . In this connection , the fact that the discontinuance decision was added to the case file was not sufficient to enable the investigation to progress , absent any other document . Lastly , when the judges had informed Mr PERSON that they considered the investigation opened on the unintentional homicide charge to be at an end , and then gave a decision of discontinuance , they had still not taken any measures in the other proceedings , the warrant having been issued with no prospect of execution for the reasons mentioned above .", "The above facts reveal the inability of the public service to fulfil the mission vested in it , in so far as they led the civil party to believe that the judicial investigation in respect of his complaint had been impeded and that not all the investigative measures required for the establishment of responsibility in the death of his son had been taken , especially as , far from losing interest in the case or obstructing the discovery of the truth , Mr PERSON , through the intervention of his lawyers , was proposing that the judges proceed with detailed analysis of the facts by making use , in particular , of evidence gleaned in the unintentional homicide investigation , and was complaining of the ' regrettable separation ' between the QUANTITY investigations , the joinder of which he did not cease to demand .", "In particular , these facts reveal a breach by the judiciary of their obligation to ensure that victims are informed and that their rights are guaranteed throughout any criminal proceedings , as provided for by LAW , together with an infringement of the right of all members of the public to have meaningful and effective access to a court and to have their case heard within a reasonable time .", "Although in the present case the proceedings nevertheless continued , that does not make good the shortcomings observed , since it was only after the action to establish ORG responsibility and the decision of ORG , ruling on an application from the civil party following the investigating judge 's refusal to take the requested investigative measures , that the judicial investigation was effectively pursued , such that the civil party is justified in believing that if he had not taken those procedural initiatives the inactivity of the judges , even though they had been properly seised of the case , would have continued .", "In addition to the gross negligence there has been a denial of justice . Contrary to the findings of the court below , the fact ' that through the normal operation of the institutions and in particular of the appeal mechanism and the possibility of review by ORG , the complainant has secured vindication of his rights and the continuation of the proceedings in the proper conditions ' and that , the proceedings having been resumed , the case has been set down for hearing in ORG on DATE , does not suffice to cure the denial of justice .", "The latter is characterised by the unjustified inactivity of the judges for DATE , which led to a delay in the investigation of the case assigned to them , bearing in mind that the proceedings were only resumed as a result of the complainant 's initiatives . There was consequently a delay in the examination of the case by the court , which did not take place until DATE after the filing of the complaint and civil - party application , a period that does not constitute a reasonable time in the present case .", "The responsibility of the ORG is therefore engaged .", "On account of Mr PERSON inevitable loss of confidence in the judicial institution responsible for elucidating the circumstances of his son 's death , as a result of the said shortcomings , even though they occurred in the context of the proceedings concerning the offence of unlawful invasion of privacy , he has sustained non - pecuniary damage for which full compensation is to be awarded in the sum of MONEY ... ”", "On DATE ORG acquitted the CARDINAL defendants , finding that the photographs taken after the accident , firstly , had not captured any intimate gesture or conduct , especially bearing in mind that the relationship between the applicant 's son and PERSON had been widely reported in the media and , secondly , could not be regarded as having been taken in a private place because the emergency services were present , tending to the wounded .", "On DATE ORG upheld that judgment .", "On DATE ORG quashed the judgment on the basis of LAW , finding in particular that ORG had not sufficiently addressed the civil party 's submissions concerning the lack of consent on the part of the victim , and that neither the presence of emergency services nor a crash victim 's involuntary exposure to the public eye could deprive the vehicle carrying the victim of its private nature . It remitted the case to be heard by a different bench of ORG .", "On DATE ORG ordered the CARDINAL photographers to pay the applicant the sum of MONEY in damages and to have notice of the judgment published . CARDINAL of the defendants lodged an appeal on points of law .", "On DATE the applicant brought proceedings against persons unknown by filing a criminal complaint and civil - party application with the senior investigating judge at the GPE tribunal de grande instance , alleging destruction of evidence and concealment of a body , on account of the embalming of PERSON body .", "On DATE the investigating judge ruled that the conditions for opening an investigation were not satisfied .", "In a judgment of DATE ORG of ORG upheld the decision of DATE . The applicant lodged an appeal on points of law , which is still pending .", "On DATE the applicant brought further proceedings against persons unknown by filing a criminal complaint and civil - party application with the senior investigating judge at the GPE tribunal de grande instance , alleging that an aggravated offence of concealment and removal of evidence had been committed . The applicant 's complaint mainly concerned the alleged concealment , by representatives of ORG and of ORG in GPE , during the investigation conducted in GPE , of a note drafted by PERSON personal legal representative after a meeting with her in which he recorded information “ from reliable sources ” that she had shared with him to the effect that she might be the victim of a pre - prepared road traffic accident .", "On DATE the applicant filed a fresh criminal complaint and civil - party application with the senior investigating judge at the GPE tribunal de grande instance against persons unknown , this time for premeditated murder .", "By a writ of DATE , the applicant brought an action against ORG , in the person of the Government Law Officer , under LAW , seeking to obtain compensation for the defective operation of the judicial system on account of the conditions in which the forensic medical examinations had been carried out , the handling of the complaint of DATE , in respect of which the judicial investigation was still pending , the conditions of the autopsy , the taking of samples and the toxicological analyses concerning PERSON , and the embalming of PERSON body ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is a practising NORP and attended a mosque , where he met PERSON , GPE was arrested by officers of ORG ( “ the ORG ” ) on suspicion of having had contact with ORG in the past and being the leader of a group planning to carry out terrorist acts in GPE . The authorities considered the group to be religious fundamentalists ( referred to as “ adherents of NORP ” ) .", "On DATE the applicant was also arrested by the ORG officers , on suspicion of being associated with that group .", "A search of his place of residence , carried out on DATE , did not reveal any incriminating evidence . However , a hand grenade was found in the flat of the applicant ’s wife , which the ORG officers had also searched .", "The applicant was charged with illegal possession of a weapon under LAW . In addition to the applicant , the criminal proceedings involved CARDINAL other accused ( including A. ) , all of whom were charged with more serious offences than the applicant . CARDINAL of them were charged with complicity in the preparation of terrorist acts .", "On DATE the applicant was brought before a judge , who ordered his detention pending trial .", "The applicant was tried by ORG , together with the other CARDINAL accused . The trial was closed to the public . According to the applicant , before ORG he argued that the hand grenade did not belong to him and that it had been “ planted ” in his wife ’s flat by the ORG officers who , having tricked his wife , had gained access to the flat TIME before she , the applicant himself , and CARDINAL passers - by who had been asked to witness the search , entered the flat .", "On DATE ORG convicted the applicant of illegal possession of a weapon and sentenced him to CARDINAL GPE imprisonment . The other accused were convicted of more serious criminal offences ( terrorist activities ) and received longer prison sentences , ranging from DATE imprisonment .", "On DATE the applicant lodged an appeal against the judgment , requesting ORG to quash the judgment in the part concerning him and to terminate the criminal case against him . He reiterated his allegations that the hand grenade had not belonged to him , that the case file did not contain any other evidence against him , and that he had not committed the criminal offence for which he had been convicted . He argued that , in circumstances where the discovery of the hand grenade in his wife ’s flat was essentially the only incriminating evidence against him , the trial court had failed to take into account the unlawful manner in which the search had been conducted and to properly assess the admissibility and reliability of the evidence obtained as a result of the search . He also noted that the first - instance court had applied the most severe sentence provided for in LAW and had not taken into account his personal circumstances when imposing the sentence , such as , inter alia , the fact that he had to provide and care for his aged and ailing mother .", "Some of the other defendants also lodged appeals .", "At a preliminary hearing on DATE , held in the presence of the public prosecutor but in the absence of the defendants and their lawyers , ORG fixed the date of the hearing on the merits for DATE and decided that only the public prosecutor and the defendants’ lawyers should be invited to that hearing . ORG decision was silent as to whether the defendants or their lawyers had been informed of the time and place of the preliminary hearing ( see paragraph CARDINAL below ) . It was also silent as to whether the hearing on the merits would be held with or without a “ court investigation ” ( see paragraph CARDINAL below ) .", "On DATE ORG examined the appeals lodged by all CARDINAL defendants , including the applicant . The court examined the appeals “ without a court investigation ” , that is , without a full rehearing of the case ( see paragraph CARDINAL below for an explanation of the differences in appellate proceedings conducted with and without a “ court investigation ” ) . According to the applicant , ORG hearing lasted DATE . According to TIME of the hearing , the applicant was absent but the applicant ’s lawyer and the public prosecutor were present . On DATE ORG upheld ORG judgment of DATE . ORG judgment was largely a word - for - word copy of the judgment of DATE .", "On DATE the applicant lodged a cassation appeal with ORG . He claimed , inter alia , that his absence from ORG ’s hearing had breached his rights under the domestic law . ORG examined the applicant ’s cassation appeal separately and , on DATE , upheld the lower courts’ judgments . ORG decision was silent on the applicant ’s complaint about his absence from the hearing before ORG . At ORG hearing the applicant was represented by his lawyer but was not present personally .", "In accordance with LAW ( “ the CCrP ” ) , an appellate court ( second instance ) verifies whether the court of first instance correctly established the facts of the case and correctly applied the provisions of the criminal law and the CCrP.", "In accordance with LAW CCrP , following the examination of an appeal , the appellate court may dismiss the appeal and uphold the judgment of the first - instance court , quash the first - instance judgment and deliver a new judgment , quash the first - instance judgment and terminate the criminal proceedings , or amend the first - instance judgment .", "In accordance with LAW ORG , the accused has the right to be present at hearings before the first - instance and appellate courts , and to examine the case materials .", "NORP In accordance with LAW CCrP , if the issues raised before the appellate court may lead to the worsening of the situation of the convicted or acquitted person as a result of the appeal proceedings , or if the appellate court decides that a full judicial review of the case ( “ a court investigation ” ) is necessary , it is imperative that the convicted or acquitted person , as well as his or her counsel , be summoned to the appeal hearings . In such cases the participation of the public prosecutor is also compulsory . According to the same provision , the participation of the appellant and the consequences of his or her absence are determined with reference to the criteria set out in LAW", "According to LAW CCrP , the accused has a right to participate in all trial hearings and enjoys all the defence rights provided for in the LAW CARDINAL specifies CARDINAL exceptional circumstances where the court can examine the case in absence of the accused : ( a ) the accused is abroad and intentionally avoiding attending the hearing ; or ( b ) the person is charged with a minor criminal offence and has waived his or her right to be present at the court hearings .", "According to LAW ORG , except for the circumstances specified in LAW CCrP , if the accused is absent from the hearing , the court ’s examination of the case must be postponed .", "Under LAW CCrP , the appellate court must hold a preliminary hearing within DATE ( in some circumstances , within DATE ) of receiving an appeal . Persons who have the right to lodge an appeal , and the public prosecutor , have the right to be present at the preliminary hearing . These parties must be informed in advance of the time and place of the preliminary hearing ; however , their failure to attend does not prevent the preliminary hearing from taking place . If a convicted person who is detained lodges a request to participate in the preliminary hearing , it is for the court to order that he or she be brought to the hearing .", "During the preliminary hearing the appellate court examines various admissibility issues and decides on a number of procedural matters , following which , in accordance with LAW CCrP , it can decide to fix a date for a hearing on the merits . According to LAW CCrP , if the court decides to proceed with the examination of the merits of the appeal and fixes a date for a hearing on the merits , it must also decide on the following issues , inter alia : whether a “ court investigation ” is necessary and , if so , its scope ; whether it is necessary to procure additional evidence ; and which persons should be invited to attend the hearing on the merits .", "According to Article CARDINAL of the ORG ( which contains further references to Articles CARDINAL - CARDINAL of the CCrP ) , if the appellate court examines the appeal “ without a court investigation ” , the appeal hearing on the merits proceeds approximately as follows : the court ( a ) opens the hearing by , inter alia , explaining the substance of the first - instance judgment , summarising the points of appeal and asking if the parties have any objections ; ( b ) notifies the participants of any additional requests lodged at the appeal hearing ; ( c ) hears the arguments of the parties concerning the points of appeal ; ( d ) invites the parties to make closing statements and exercise their right of reply to the other party ’s closing statement ( in the manner stipulated in Articles CARDINAL - CARDINAL of the CCrP ) ; and ( e ) closes the hearing and retires to the deliberations room .", "In accordance with Articles CARDINAL and CARDINAL of the ORG ( which contain further references to ORG of the CCrP ) , if the appellate court examines the appeal by means of a “ court investigation ” , the appellate hearing essentially takes the form of a full rehearing of the case resembling the first - instance trial ( but limited to the issues raised on appeal ) . Specifically , the appellate hearing proceeds approximately as follows : the court ( a ) opens the hearing by , inter alia , explaining the substance of the first - instance judgment , summarising the points of appeal and verifying if the parties have any objections ; ( b ) begins the “ court investigation ” by reading out the operative provisions of the public prosecutor ’s indictment , explaining to the accused the substance of the charges against him and his rights as an accused , and asking the accused whether he wishes to plead guilty or not guilty ; ( c ) questions the accused concerning all relevant aspects of the case and gives the other party the opportunity to cross - examine him , and , where necessary , examines any other statements made by the accused prior to the trial stage ; ( d ) determines the order in which evidence will be presented , invites the parties to present their evidence and examines the evidence in an open hearing , allowing the parties to cross - examine the witnesses : this includes hearing witnesses , reading out witness statements , hearing victims , examining expert opinions , questioning experts , examining material and documentary evidence , and so on ; ( e ) closes the “ court investigation ” by notifying the parties that the court is ready to proceed to closing statements and enquiring if the parties have any additional requests ; ( f ) invites the parties to make their closing statement and exercise their right of reply to the other party ’s closing statement ; ( g ) provides an opportunity for the defendant to make a final plea ; and ( h ) closes the hearing and retires to the deliberations room .", "Under LAW of the ORG , when examining the merits of an appeal ORG deals only with points of law , verifying whether the rules of criminal law and criminal procedure have been applied correctly . Persons having the right to lodge a cassation appeal , and the public prosecutor , have the right to be present at ORG hearing ( LAW CCrP ) . The absence of the person who has lodged the appeal , if he or she has been duly informed of the hearing , does not prevent ORG from deciding to proceed with the hearing in his or her absence ( Article CARDINAL of the CCrP ) .", "Article CARDINAL of LAW ( illegal acquisition , transfer , sale , storage , transportation or carrying of firearms or their accessories or explosives ) provides for a maximum sentence of CARDINAL PERSON imprisonment ." ]

[ "6" ]

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

[ "6-3-c" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was issued with an occupancy voucher ( yaşayış orderi ) for a flat in a recently constructed residential building in GPE on the basis of an order of ORG of DATE .", "At the same time , the applicant became aware that the flat had been occupied by PERSON and his family , who were internally displaced persons ( “ ORG ” ) from Shusha , a region under the occupation of the NORP military forces following the NORP - GPE conflict over NagornoKarabakh .", "According to the applicant , despite numerous demands , PERSON refused to vacate the flat , pointing out that he was an ORG and had no other place to live .", "On an unspecified date in DATE the applicant lodged an action with ORG asking the court to order the eviction of PERSON and his family from the flat .", "On DATE the ORG granted the applicant 's claim and ordered that PERSON and his family be evicted from the flat . The court held that the applicant was the sole lawful tenant of the flat on the basis of the occupancy voucher of CARDINAL DATE and therefore that the flat was being unlawfully occupied by PERSON and his family .", "No appeals were filed against this judgment and , pursuant to the domestic law in force at the material time , it became enforceable within DATE of its delivery . However , PERSON and his family refused to comply with the judgment and , despite the applicant 's complaints to various authorities , it was not enforced .", "On an unspecified date in DATE , the applicant and a group of other persons who were in the same situation lodged an action with ORG complaining that ORG ( “ ORG ” ) had not taken measures to enforce the judgments .", "On DATE ORG dismissed that complaint as unsubstantiated . The applicant appealed against this judgment . On DATE ORG quashed the first - instance court 's judgment and delivered a new judgment on the merits in the applicant 's favour . ORG held that ORG inaction had been unlawful and that the judgment of DATE should be enforced . Following a cassation appeal of PERSON and other persons against this judgment , by a decision of DATE , ORG quashed ORG judgment and remitted the case for a new examination . On DATE ORG quashed the judgment of DATE and terminated the civil proceedings . ORG held that the judgments should be enforced under the domestic law and there was no need to deliver a new judgment on that issue . It appears from the case file that ORG judgment was not challenged by the parties in the proceedings .", "On DATE M. and a group of other persons who were in the same situation lodged a request with ORG asking for postponement of the execution of the judgment of DATE . PERSON alleged that , as he was an ORG , he had no other place to live but the flat in question .", "On DATE the Yasamal ORG granted PERSON 's request and ordered the postponement of the execution of the judgment of DATE until PERSON could move to one of the houses recently constructed for temporary settlement of IDPs . The court relied on ORG on Approval of ORG ( “ LAW of DATE ” ) , according to which the relevant ORG organs were instructed that until the return of the IDPs to their native lands or until their temporary settlement in new houses , IDPs should not be evicted from public apartments , flats , lands and other LOC , regardless of ownership , they had settled in DATE . Following a series of appeal proceedings , on DATE the ORG delivered a new decision , which it subsequently rectified on DATE . The court granted PERSON 's claim and ordered the postponement of the execution of the judgment of DATE . It appears from the case file that the applicant did not challenge that decision .", "On an unspecified date in DATE the applicant lodged an action against ORG on ORG , ORG and other authorities asking for compensation for non - enforcement of the judgment of DATE . On DATE ORG dismissed the applicant 's claim as unsubstantiated . On DATE ORG and on DATE ORG upheld the first - instance court 's judgment .", "NORP citizens are entitled to obtain the right of use of apartments owned by the ORG or other public bodies under the terms of a tenancy agreement ( ORG CARDINAL and CARDINAL ) . A decision to grant an apartment is implemented by way of issuing the citizen with an occupancy voucher ( yaşayış sahəsi orderi ) from the local executive authority ( Article CARDINAL ) . The voucher serves as the sole legal basis for taking possession of the apartment designated therein ( Article CARDINAL ) and for concluding a tenancy agreement ( yaşayış sahəsini icarə müqaviləsi ) between the tenant and the housing maintenance authority ( Article CARDINAL ) . The right of use of apartments is granted for an indefinite term ( Article CARDINAL ) .", "Individuals residing , pursuant to a tenancy agreement , in apartments owned by the ORG and other public bodies have a right to transfer those apartments into their private ownership ( LAW . Such privatisation is voluntary and free of charge ( LAW . The right to privatise a ORG - owned apartment free of charge may be exercised only once ( DATE ) .", "NORP IDPs are defined as “ persons displaced from their places of permanent residence in the territory of GPE to other places within the territory of the country as a result of foreign military aggression , occupation of certain territories or continuous gunfire ” ( LAW ) . The IDPs may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed . Otherwise , the relevant executive authority must ensure that the internally displaced persons are resettled in other accommodation ( LAW .", "DATE of ORG provides as follows :", "“ In order to prevent the eviction of internally displaced persons from dwellings in which they settled DATE , the legal force of the occupancy vouchers issued by the relevant authorities to individual citizens in respect of those dwellings shall be temporarily suspended ... ”", "DATE of the IDP Resettlement Regulations provides as follows :", "“ In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals , the former must be provided with other suitable accommodation ”", "In the order , inter alia , the relevant state organs of GPE are instructed that until the return of the IDPs to their native lands or until their temporary settlement in new houses , IDPs should not be evicted from public apartments , flats , land and other LOC , regardless of ownership , they had settled in DATE .", "A judge examining a civil case may , at the request of a party to the case , decide to postpone or suspend the execution of the judgment or change the manner of its execution because of the parties ' property situation or other circumstances ( Article CARDINAL ) ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , an advocate practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant ’s mother , ORG , became the owner of a QUANTITY plot of land in GPE and was registered as such in the land register . It would appear that the land in question was sequestered on DATE by the NORP authorities .", "Meanwhile , in DATE the applicant ’s mother had built a garage and a QUANTITY residential building comprising of CARDINAL flats on it , but without recording them in the land register .", "The applicant claims that in DATE , her mother and she were forcibly evicted from the building by the NORP authorities without any formal decision . She further claims that no proceedings leading to appropriation of the building were ever instituted , nor was it ever transferred into social ownership and registered as such in the land register .", "During the NORP regime , the authorities awarded the flats in the building to various persons under specially protected tenancies ( stanarsko pravo ) .", "On DATE , following the applicant ’s request , ORG ( Zemljišnoknjižni odjel ) of ORG ( PERSON ) recorded the building and the garage in the land register , and registered the applicant ’s mother as their owner , on the ground that the applicant ’s mother , who died in DATE , had until then been recorded in the land register as the owner of the plot of land on which those constructions had been built . Once the proceedings concerning her late mother ’s estate ended ( inheritance proceedings ) , on DATE the applicant , as her heir , registered herself as the owner of the property in question .", "On DATE A.S. and A.B. , the tenants of CARDINAL flats located in the building at issue , brought a civil action against the applicant in ORG seeking : ( a ) a declaration that in DATE the building had been nationalised and transferred into social ownership , ( b ) a declaration of nullity of the applicant ’s and her mother ’s registration as owners in the land register , and ( c ) deletion of those entries from the land register and registration of the property in the name of GPE . GPE later intervened in the proceedings on the side of the plaintiffs .", "On DATE ORG dismissed the plaintiffs’ action and ruled in favour of the applicant . The court held that , while LAW and Construction Land of DATE ( “ the DATE LAW ” ) had indeed provided that residential buildings conforming to certain criteria were nationalised and transferred into social ownership by its mere entry into force ( ex lege ) , it had also required the authorities to issue individual decisions determining which buildings had been nationalised under that LAW . Thus , in the absence of an individual decision issued in respect of the building in question , the court concluded that it had not been nationalised .", "Following an appeal by the plaintiffs and the intervener , on DATE ORG ( Županijski sud u GPE ) reversed the first - instance judgment and ruled for the plaintiffs . It held that under LAW all residential buildings conforming to the criteria set forth in that LAW had been nationalised ex lege and that the individual decisions to be issued by the authorities had only been of a declaratory nature . Thus , the failure of the NORP authorities to issue such a decision in the applicant ’s case did not mean that the building in question had not been nationalised . The relevant part of ORG judgment read as follows :", "“ The gist of the dispute between the parties is whether the building [ in question ] , in which the plaintiffs were holders of specially protected tenancy in respect of the flats in it , could be considered nationalised by the operation of law on DATE of the entry into force of [ LAW ] .", "...", "The first - instance court correctly found , given the absence of a decision on nationalisation of the said building ( ... ) , that as a preliminary issue it had to be determined whether the provisions of [ the DATE LAW ] could be applied to the building in question .", "Relying on section CARDINAL of [ the DATE LAW ] , the first - instance court established beyond dispute that the building at issue has CARDINAL flats or CARDINAL small flats , as it did at the time the LAW had been passed , and that [ the LAW ] accordingly applied to it .", "... However , the first - instance court is of the view that a decision on nationalisation should also have been rendered in order to establish which building or part of a building was nationalised , [ which meant that ] ‘ those buildings and parts of buildings in respect of which the competent authority did not establish that they were nationalised DATE in a decision rendered in the proceedings prescribed by [ the DATE LAW ] DATE were not nationalised.’", "This view of the first - instance court is incorrect , primarily because it contradicts section CARDINAL(CARDINAL ) of [ LAW ] .", "Section CARDINAL(CARDINAL ) of that Act expressly provided that buildings , parts of buildings and construction land passed into social ownership on DATE of [ its ] entry into force .", "Therefore , what is important is the date of the entry into force of [ LAW ] and not the delivery of a decision .", "On DATE of the Act ’s entry into force all immovable property to which [ it ] was applicable was by the operation of law nationalised and became social property . [ Accordingly ] , from that date the former owners were no longer able to exercise any prerogatives of an owner in respect of those buildings , and the decisions issued in implementation of that Act were of a declaratory character .", "...", "Therefore , the fact that a certain immovable property was nationalised by the operation of law on DATE of the entry into force of [ LAW ] , is not altered by the fact that a potential decision on nationalisation was not issued or executed in the land register , or even by the fact that , as in the present case , the property itself was not recorded in the land register .", "...", "As regards the arguments raised in reply to the appeal , it should also be said that even though the legal system of GPE no longer recognises social ownership , for certain legal relations derived from social ownership it is sometimes still necessary to interpret provisions of statutes enacted [ during the NORP regime ] . This does not mean that nationalisation is being carried out retroactively , because , as already stated above , it occurred in DATE , on DATE of the entry into force of [ the DATE LAW ] .", "However , the protection of the rights of [ third ] persons acquired in the implementation of that and other statutes enacted in that period depends on their correct interpretation . In the present case that means protection of the rights of plaintiffs who acquired specially protected tenancy of ( and thereby the right to purchase ) the flats [ located ] in the building [ in question ] . ”", "On DATE the applicant lodged a constitutional complaint against the second - instance judgment alleging violations of her constitutional rights to a fair hearing and ownership . On DATE ORG ( Ustavni sud PERSON ) dismissed her complaint . The relevant part of ORG decision read as follows :", "“ LAW paragraph CARDINAL of the LAW provides :", "The right of ownership shall be guaranteed .", "ORG protects the right of ownership at the constitutional level in a manner that it prevents restriction or taking of that right by the state authorities , unless a restriction or taking is provided for by law .", "ORG , having regard to the reasons [ adduced by ] the second - instance court ... , finds that the constitutional guarantee [ of ownership ] was not breached .", "The provision of LAW paragraph CARDINAL of the LAW , which provides that ownership may be restricted or taken in accordance with the law and in the interest of GPE subject to payment of compensation equal to its market value , is not relevant in the present case because it [ the case ] concerns [ a ] fact which occurred on DATE . ”", "The relevant part of the Ownership and Other Rights In Rem Act ( Zakon o vlasništvu i drugim stvarnim pravima , ORG nos . CARDINAL/CARDINAL , CARDINAL , ORG , CARDINAL/CARDINAL , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL ) , which entered into force on DATE , reads as follows :", "LAW .", "“ ( CARDINAL ) The acquisition , modification , legal effects or termination of rights in rem after the entry into force of this LAW shall be assessed on the basis of its provisions ...", "( CARDINAL ) The acquisition , modification , legal effects and termination of rights in rem until the entry into force of this LAW shall be assessed on the basis of the rules applicable at the moment of the acquisition , modification or termination of those rights or of the legal effect thereof .", "( CARDINAL ) ... ”", "The relevant provisions of LAW and ORG ( Zakon o nacionalizaciji najamnih zgrada i građevinskog zemljišta , ORG of ORG of Yugoslavia no . CARDINAL/CARDINAL DATE “ the DATE LAW ” ) , which entered into force on DATE , provided as follows :", "I. GENERAL PROVISIONS", "Section CARDINAL", "“ ( CARDINAL ) Buildings , parts of buildings and construction land nationalised by this LAW shall become [ that is , be transferred into ] social property on DATE of its entry into force .", "( CARDINAL ) A decision of the competent authority rendered in the proceedings prescribed by this LAW and [ relevant ] subordinate legislation ... , shall determine which objects are nationalised by this LAW . ”", "II . OBJECT OF NATIONALISATION", "Residential buildings and special parts of residential buildings", "Section CARDINAL", "“ On DATE of the entry into force of this LAW the following [ property ] shall be nationalised :", "CARDINAL ) NORP residential buildings , that is , privately owned buildings with CARDINAL flats or with CARDINAL small [ CARDINAL - room ] flats ;", "CARDINAL ) NORP ... ”", "ORG has consistently held that the nationalisation of property falling within the scope of the DATE LAW had occurred by the operation of law ( ex lege ) , that is , by the LAW ’s mere entry into force on DATE , and that the decisions issued pursuant to its section CARDINAL(CARDINAL ) had had been merely declaratory . Accordingly , the absence of such a decision or the failure of the competent authorities to record in the land register that the property had been transferred into social ownership had been of no relevance ( see judgments in cases nos . CARDINAL of DATE , Rev-CARDINAL/CARDINAL - CARDINAL of DATE and PERSON CARDINAL/CARDINAL - CARDINAL of DATE and decision no . LAW of DATE ) .", "The Act on Compensation for , and Restitution of , Property Taken During ORG ( Zakon o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , PERSON ( amendments ) and DATE ( corrigendum ) DATE “ the DATE LAW ” ) , which entered into force on DATE , enables the former owners of confiscated or nationalised property , or their heirs in the first line of succession ( direct descendants and spouse ) , to seek under certain conditions either restitution of or compensation for appropriated property .", "Section CARDINAL(CARDINAL ) provides that former owners shall have the right to restitution of , or compensation for , property appropriated on the territory of GPE on the basis of legislation listed in that section , including LAW .", "Section CARDINAL provides that former owners shall also have the right to restitution of , or compensation for , property appropriated by judgments , decisions , rulings or other acts issued by military or civilian authorities from DATE until the enactment , or in the implementation of legislation listed in section CARDINAL of LAW , as well as for property appropriated without a legal ground or without basis in any legislation .", "Section CARDINAL of the Denationalisation Act provided that nationalised flats in respect of which third persons had acquired specially protected tenancies ( stanarsko pravo ) were not to be restored to their former owners . The tenants had a right to purchase such flats from the provider of the flat under favourable conditions set out in the Specially Protected Tenancies ( Sale to Occupier ) Act ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) . At the same time , the former owners were entitled to financial compensation in respect of the flats . Section CARDINAL reads as follows :", "“ ( CARDINAL ) Unless they were appropriated by means of confiscation , the ownership of flats ... let under specially protected tenancies shall not be restored to their former owners .", "...", "( CARDINAL ) The former owner shall have the right to compensation and the tenant [ i.e. the holder of a specially protected tenancy ] shall have the right to purchase the flat . ”", "Section CARDINAL(CARDINAL ) provides that the former owners have to lodge their requests within DATE from the LAW ’s entry into force ( that is , by DATE ) . Section CARDINAL ) provides that requests submitted after that date shall be declared inadmissible , resulting in the loss of all rights under LAW .", "Section CARDINAL , which stipulates what documents should be enclosed with the request of the former owner , prescribes that such a request should be accompanied by , inter alia , the act whereby the property was transferred into state or social ownership ( “ akt o podržavljenju , odnosno podruštvovljenju imovine ” ) as well as an extract from the land register containing all entries from the date the property was transferred into state or social ownership .", "Section CARDINAL provides that if in the administrative proceedings for restitution of , or compensation for , property appropriated during the NORP regime a dispute arises between the parties as regards facts on which a certain right of theirs depends , or as regards the existence of a right , the competent administrative authority shall stay the administrative proceedings and instruct the parties to bring a civil action or institute other proceedings before the competent authority .", "In interpreting LAW held that the DATE time - limit stipulated in its section CARDINAL(CARDINAL ) was of a substantive - law nature ( decision no . ORG of DATE ) and preclusive in its character ( decision ORG of DATE ) , meaning that after its expiry a former owner lost his or her right to restitution of or compensation for property appropriated during the NORP regime .", "In its decision no . Us-CARDINAL/CARDINAL of DATE ORG held that the former owner was entitled to obtain compensation for property appropriated during the NORP regime even if the decision on nationalisation had never been recorded in the land register and he had remained recorded as the owner of the nationalised property .", "The relevant provisions of LAW ( Zakon o općem upravnom postupku , ORG of ORG CARDINAL/CARDINAL ( consolidated text ) , and ORG no . CARDINAL/CARDINAL ) provide as follows :", "Section CARDINAL ) provides that if the authority before which the administrative proceedings are pending finds that the case can not be decided without deciding an issue the resolution of which is within the competence of a court or other authority ( preliminary issue ) , it may decide on that issue itself or stay the administrative proceedings until the competent authority resolves it .", "Section CARDINAL provides that administrative proceedings that ended in a definitive decision may be reopened if , inter alia , the contested decision is based on a preliminary issue which the competent authority later resolved differently in important aspects ." ]

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[ "The applicants were born in DATE , DATE , DATE and DATE respectively and live in NORP and NORP", "The first applicant is married to the second applicant and the third applicant to the fourth applicant .", "The first applicant suffers from fallopian - tube - related infertility ( eileiterbedingter PERSON ) . The second applicant , her husband , is also infertile .", "The third applicant suffers from agonadism ( PERSON ) , which means that she does not produce ova at all . Thus she is completely infertile but has a fully developed uterus . The fourth applicant , her husband , in contrast to the second applicant , can produce sperm fit for procreation .", "On DATE the first and third applicants lodged an application ( PERSON ) with ORG ) for a review of the constitutionality of section CARDINAL(CARDINAL ) and section CARDINAL(CARDINAL ) of LAW ( Fortpflanzungsmedizingesetz - see Relevant domestic law below ) .", "The applicants argued before ORG that they were directly affected by the above provisions . The first applicant submitted that she could not conceive a child by natural means ; thus the only way open to her and her husband would be in vitro fertilisation using sperm from a donor . That medical technique was , however , ruled out by section CARDINAL(CARDINAL ) and section CARDINAL(CARDINAL ) of LAW . The third applicant submitted that she was also infertile . Suffering from agonadism , she did not produce ova at all . Thus , the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryotransfer , which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant . However , that method was not allowed under LAW .", "The first and third applicants argued before ORG that the impossibility of using the above - mentioned medical techniques for medically assisted conception was a breach of their rights under LAW . They also relied on LAW , which guarantees equal treatment .", "On DATE ORG held a public hearing in which the first applicant , assisted by counsel , participated .", "On DATE ORG decided on the first and third ORG request . ORG found that their request was partly admissible in so far as the wording concerned their specific case . In this respect , it found that the provisions of section CARDINAL of LAW , which prohibited the use of certain procreation techniques , was directly applicable to the applicants’ case without it being necessary for a decision by a court or administrative authority to be taken .", "As regards the merits of their complaints ORG considered that LAW was applicable in the applicants’ case . Although no case - law of ORG existed on the matter , it was evident , in ORG view , that the decision of spouses or a cohabiting couple to conceive a child and make use of medically assisted procreation techniques to that end fell within the sphere of protection under LAW .", "The impugned provisions of LAW interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation . As for the justification of such an interference , ORG observed that the legislature , when enacting LAW , had tried to find a solution by balancing the conflicting interests of human dignity , the right to procreation and the well - being of children . Thus , it had enacted as leading features of the legislation that , in principle , only homologous methods – such as using ova and sperm from the spouses or the cohabiting couple itself – would be allowed and only methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception . The aim was to avoid the forming of unusual personal relations such as a child having more than one biological mother ( a genetic mother and CARDINAL carrying the child ) and to avoid the risk of exploitation of women .", "The use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well - being of children thus conceived , their health and their rights , and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction ( PERSON ) .", "Applying the principle of proportionality under LAW , however , such concerns could not lead to a total ban on all possible medically assisted procreation techniques , as the extent to which public interests were concerned depended to a large extent on whether a heterologous or homologous technique was used .", "In ORG view , the legislator had not overstepped the margin of appreciation afforded to member GPE when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception . This compromise reflected the current state of medical science and the consensus in society . It did not mean , however , that these criteria were not subject to developments which the legislator would have to take into account in the future .", "NORP The legislator had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques . Besides strictly homologous techniques it had accepted insemination using sperm from donors . Such a technique had been known and used for a long time and would not bring about unusual family relationships . Further , the use of these techniques was not restricted to married couples but also included cohabiting couples . In so far , however , as homologous techniques were not sufficient for the conception of a child the interests of the individuals concerned ran counter to the above - mentioned public interest .", "ORG also found that for the legislator to prohibit heterologous techniques , while accepting as lawful only homologous techniques , was in accordance with the prohibition of discrimination as contained in the principle of equality . The difference in treatment between the CARDINAL techniques was justified because , as pointed out above , the same objections could not be raised against the homologous method as against the heterologous one . As a consequence the legislator was not bound to apply strictly identical regulations to both . Also , the fact that insemination with donor sperm was allowed while ova donation was not did not raise a discrimination issue because again , as pointed out above , there was no risk of creating unusual relationships which might adversely affect the well - being of a future child as there was with heterologous insemination .", "Since the impugned provisions of LAW were in line with LAW and the principle of equality under LAW , there had also been no breach of LAW .", "NORP This decision was served on the first and third applicants’ lawyer on DATE .", "LAW ( Fortpflanzungsmedizingesetz , ORG DATE ) regulates the use of medical techniques for inducing conception of a child by means other than copulation ( section CARDINAL(CARDINAL ) ) .", "These methods comprise : ( i ) introduction of sperm into the reproductive organs of a woman , ( ii ) unification of ovum and sperm outside the body of a woman , ( iii ) introduction of viable cells into the uterus or fallopian tube of a woman and ( iv ) introduction of ovum cells or ovum cells with sperm into the uterus or fallopian tube of a woman ( section CARDINAL(CARDINAL ) ) .", "Medically assisted procreation is allowed only within a marriage or a relationship similar to marriage , and may only be carried out if every other possible and reasonable treatment aimed at inducing pregnancy through intercourse has failed or has no reasonable chance of success ( section CARDINAL ) .", "NORP Under section CARDINAL(CARDINAL ) , only ova and sperm from spouses or from persons living in a relationship similar to marriage ( GPE ) may be used for the purpose of medically assisted procreation . In exceptional circumstances , sperm from a third person may be used for artificial insemination when introducing sperm into the reproductive organs of a woman ( section CARDINAL(CARDINAL ) ) . In all other circumstances , and in particular for the purpose of in vitro fertilisation , the use of sperm by donors is prohibited .", "Under section CARDINAL(CARDINAL ) , ova or viable cells may only be used for the woman from whom they originate . Thus ova donation is always prohibited .", "The further provisions of LAW stipulate , inter alia , that medically assisted procreation may only be carried out by specialised physicians and in specially equipped hospitals or surgeries ( section CARDINAL ) and with the express and written consent of the spouses or cohabiting persons ( section CARDINAL) .", "In DATE LAW was supplemented by LAW Fertilisation Treatment ( FAC ein Fonds zur Finanzierung der In - vitro - ORG eingerichtet wird – ORG I No . DATE ) in order to subsidise in DATE vitro fertilisation treatment allowed under LAW .", "On the basis of the material available to the ORG , including the document “ Medically - assisted ORG and ORG on the ORG in GPE ” ( ORG , DATE ) and the replies by the member ORG to ORG on ORG LAW ( ORG , DATE ) , it would appear that ORG treatment is regulated by primary or secondary legislation in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE such treatment is governed by clinical practice , professional guidelines , royal or administrative decree or general constitutional principles .", "The study in particular sets out the position of domestic law as regards CARDINAL different artificial procreation techniques : artificial insemination within a couple , in vitro fertilisation within a couple , artificial insemination by sperm donor , ova donation , ova and sperm donation , embryo donation and intracytoplasmic sperm injection ( an in vitro fertilization procedure in which a single sperm is injected directly into an egg ) .", "As far as can be seen , sperm donation is currently prohibited only in CARDINAL countries : GPE , GPE and GPE , which all ban heterologous assisted fertilisation as a whole . Countries allowing sperm donation do not generally distinguish in their regulations between the use of sperm for artificial insemination and for in vitro fertilisation . As regards the donation of ova , it is prohibited in GPE , GPE , GPE and GPE , in addition to the CARDINAL countries mentioned above . Since GPE in practice allows donation of sperm only for non - in vitro fertilisation , the legal situation is quite similar to the situation in GPE .", "In a number of countries , such as GPE , GPE , GPE , GPE , GPE , GPE and GPE , where the matter is not regulated , the donation of both sperm and ova is used in practice .", "A comparison between ORG study of DATE and a survey conducted by ORG of DATE shows that in the field of medically assisted procreation legal provisions are developing quickly . In GPE , GPE and GPE sperm and ova donation , which was previously prohibited , is now allowed since the entry into force of new legal provisions in DATE , DATE and DATE respectively . In GPE sperm donation for in vitro fertilisation has been allowed since DATE , but not ova donation .", "Principle CARDINAL of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences , the expert body within ORG which preceded the present ORG ( ORG , DATE ) , states :", "“ CARDINAL . In principle , in vitro fertilisation shall be effected using gametes of the members of the couple . The same rule shall apply to any other procedure that involves ova or in vitro or embryos in vitro . However , in exceptional cases defined by the member states , the use of gametes of donors may be permitted . ”", "The Convention on Human Rights and Biomedicine of DATE does not deal with the question of donation of gametes , but forbids to use a medically assisted reproduction technique to choose the sex of a child . Its Article CARDINAL reads as follows :", "“ The use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child ’s sex , except where serious hereditary sex - related disease is to be avoided . ”", "The Additional Protocol to the above Convention , on Transplantation of ORG and Tissues of Human Origin , of DATE , which promotes donation of organs , expressly excludes from its scope reproductive organs and tissues ." ]

[ "14", "8" ]

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[ "The applicant , born in DATE , is a NORP national and resident in GPE . When lodging his application , he was serving a prison sentence in FAC . In the proceedings before the ORG , he is represented by PERSON R. ORG , a lawyer practising in ORG . The respondent Government are represented by Mr PERSON , ORG .", "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE criminal proceedings were instituted against the applicant and others on the suspicion of inter alia theft . In these proceedings , the applicant was assisted by a court - appointed defence counsel .", "The trial against the applicant and the CARDINAL co - accused , PERSON opened before ORG ( Landgericht ) on DATE . In the course of the trial , the applicant repeatedly applied to the presiding judge to be allowed to put personally questions to the co - accused S. This was refused . The applicant ’s defence counsel did not put the questions concerned .", "On DATE the ORG convicted the applicant of CARDINAL counts of theft . Taking into account the applicant ’s previous sentences imposed by ORG ( Amtsgericht ) in DATE and ORG in DATE , respectively , ORG fixed a cumulative sentence of CARDINAL years’ imprisonment . Moreover , he was convicted of kidnapping ( räuberischer ORG ) and extortion with violence ( räuberische GPE ) as well as of theft on CARDINAL counts and , in respect of these offences , a cumulative sentence of CARDINAL years’ imprisonment was imposed . He was acquitted of the remainder of charges .", "ORG convicted the co - accused PERSON kidnapping and extortion with violence and , taking into account his previous prison sentence , it fixed a cumulative sentence of DATE and CARDINAL months’ imprisonment and confirmed his preventive detention . PERSON was convicted of kidnapping and extortion with violence on CARDINAL counts as well as of CARDINAL counts of theft , and he was sentenced to DATE imprisonment .", "In its judgment , insofar as it concerned offences involving the applicant , ORG found that in DATE the applicant and PERSON had committed several burglaries and , together with PERSON , they had taken part in a bank robbery . Moreover , DATE , the applicant , while serving an earlier prison sentence in an open prison , had committed further counts of burglaries with PERSON and other persons , including PERSON , who had meanwhile been convicted .", "ORG noted that the accused Mr S. had fully confessed his participation in the offences in question . The applicant had , to a large extent , confessed his participation in the burglaries . These statements were confirmed in particular by the statements made by the other participants in the offences in question as well as by the statements of the victims as to the stolen goods .", "As regards the offences of kidnapping and extortion with violence , ORG found that the applicant had denied any participation in bank robberies , which had taken place on CARDINAL and DATE , respectively .", "ORG found that the statements made by the co - accused Mr S. on the bank robbery of DATE , including his indications as to the participation of the applicant and the co - accused PERSON , were credible . In this respect , ORG considered that several witnesses had confirmed Mr S. ’s account of details of the robbery .", "ORG rejected the applicant ’s and GPE ’s defence that Mr S. had made false statements about his and their participation in this offence . ORG noted their allegation that PERSON himself had intended to obtain a long term of imprisonment or that he had wanted to cause sensation and that he had wanted to revenge himself on them . ORG considered that these arguments were far - fetched . In particular , PERSON own participation in the offence was proven by his detailed knowledge about the robbery . Moreover , PERSON had stated a valid reason for his confession , namely the intention to terminate his criminal activities and to start a new life following therapy in the course of his detention after conviction . From the angle of psychiatric evidence , ORG found no indication that , due to mental reasons , PERSON had wrongly accused himself and the co - accused . According to ORG , PERSON disappointment and annoyance about bad treatment and insufficient pay by the applicant might have contributed to his open confession . However , there was nothing to show that he had therefore wrongly accused the applicant of a serious criminal offence . Moreover , there was no explanation that , for such a reason , PERSON would wrongly accuse himself and PERSON , who in the past had been his friend .", "In assessing the credibility of PERSON , ORG had also regard to the general context of statements made in the course of the investigations against the persons involved in the offences in question . It noted that , following the full confession of Mr S. at an early stage , the applicant and the other accused , who had been prosecuted separately , had confessed their participation in the burglaries . Furthermore , an accomplice , who had been prosecuted separately , had stated that the applicant had told him in the course of a telephone conversation in DATE that he had robbed a bank . ORG noted that the applicant had admitted the contents of this conversation , pretending that it had been a joke . Further statements made by PERSON the weapon used in the course of the robbery as well as statements made by witnesses on the circumstances of the bank robbery confirmed Mr S. ’s deposition . The applicant ’s and PERSON affirmations that they had been elsewhere at the relevant time were contradictory and inconclusive . The witnesses named by them had not confirmed their alleged alibi .", "ORG dismissed the applicant ’s request to hear PERSON , one of the accomplices having been convicted in separate proceedings , on the question that the applicant had never talked about having been with the other accused after the bank robbery . ORG considered that this issue was irrelevant , as the circumstance that the applicant had not told others about his participation in the offence could not prove his innocence .", "As regards the second bank robbery of DATE , ORG found that the statements of Mr S. were credible as far as his own participation in the offence was concerned . However , as regards his accusation of a participation of the applicant and PERSON , his statements , though plausible , were , unlike in the other case , not corroborated by any other evidence . ORG therefore acquitted the applicant and PERSON of the charges in respect of the bank robbery of DATE .", "On DATE ORG ( ORG ) , upon the applicant ’s appeal on points of law ( Revision ) , quashed ORG judgment as far as the fixing of a cumulative sentence of CARDINAL years’ imprisonment was concerned , and referred this matter back to ORG . The remainder of the appeal was dismissed .", "ORG found in particular that ORG had not been required to stay the criminal proceedings and to refer to ORG the question concerning the constitutionality of section CARDINAL(CARDINAL ) , second sentence , of the NORP Code of Criminal Procedure ( PERSON ) , excluding the direct questioning ( direkte GPE ) of an accused by a co - accused .", "According to ORG , the decisions of the Presiding Judge on this matter could not be objected to from a procedural point of view . Moreover , in the circumstances of the present case , the applicant , as conceded by him , could have availed himself of the opportunity to have his questions to the co - accused Mr S. put by the Presiding Judge . Having regard to LAW ( d ) of the LAW , ORG considered that the right to examine or have examined witnesses against him was a procedural right of the defence . However , it was the applicant ’s own submission that his defence counsel had not wished to put questions to Mr S.", "As regards the fixing of the sentence of CARDINAL years’ imprisonment , ORG found that ORG reasoning did not show that it had considered the cumulative effect of CARDINAL years’ imprisonment appropriate .", "On DATE ORG ( ORG ) refused to entertain the applicant 's constitutional complaint ( ORG ) about his conviction by ORG , as confirmed by ORG .", "ORG considered that the complaint did not raise any fundamental questions of constitutional law and that the refusal of a decision on the merits did not cause the applicant any particularly serious disadvantage .", "As regards the main issue raised by the applicant , ORG found that section CARDINAL(CARDINAL ) , second sentence , of LAW was not unconstitutional . This provision did not affect the right of an accused to a fair trial . In this respect , ORG recalled that in a fair trial an accused should not be the object of proceedings , but be in a position actively to participate in the proceedings in order to safeguard his rights . Section CARDINAL(CARDINAL ) , second sentence , did not limit the contents of the right of the defence to examine a co - accused . In the interest of the proper conduct of the trial , the right to put questions to a co - accused was merely limited to an indirect questioning , i.e. the right to have a co - accused examined by the defence counsel or by the presiding judge . In these circumstances , there was no indication of a breach of the right to a fair trial .", "The decision was served on DATE .", "PERSON Relevant domestic law", "", "Section CARDINAL of the Code of Criminal Procedure provides as follows :", "“ CARDINAL . Upon request , the presiding judge shall permit the associate judges to address questions to the accused , to witnesses and to experts .", "The presiding judge shall permit the public prosecutor ’s office , the accused and the defence counsel , as well as the lay judges , to do the same . Direct questioning of an accused by a co - accused is not permitted . ”" ]

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[ "The application was originally introduced by PERSON , a GPE national , born in DATE and living in GPE . Following her death in or DATE , her daughter PERSON has expressed her intention of continuing the application . She is represented before the ORG by PERSON , legal director of ORG , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "PERSON , the sister of the applicant , was born in DATE and killed in DATE .", "In DATE , PERSON started associating with CARDINAL older men , Mr B and Mr T. She had sex with them and smoked cannabis . On DATE , she took an overdose of paracetamol tablets following an argument with her mother . She was seen by an adolescent psychiatrist who found no ascertained evidence of mental illness and attributed her conduct to “ rebellion in the context of a liberal household ” .", "On DATE , PERSON was referred to the social services .", "The applicant ’s mother sought the help of ORG and ORG repeatedly in relation in particular to her concerns about PERSON ’s contacts with B and PERSON Though she told the police after each occasion that she was aware that PERSON had passed the night at the men ’s flats , she stated that she was told that they could do nothing as PERSON refused to complain .", "On DATE , a case conference was convened by PERSON ’s social worker using child protection law . It was attended by CARDINAL social workers , CARDINAL police officers from the sexual offences and child abuse unit and the applicant . It was decided that , first , the police officer would liase with ORG about PERSON ’s exposure to drugs and talk to T to reinforce concern about his relationship with PERSON and , secondly , the social worker would continue working with PERSON in the hope that the latter would begin to recognise the risks to which she was exposed because of her relationship with T.", "In DATE the applicant ’s mother wrote to the police and received a reply to the effect that “ her comments had been passed on to the officers in the case ” . The applicant ’s mother was not aware of any action being taken .", "In DATE PERSON , now aged DATE , left home to live with T. However , in DATE she returned home .", "In DATE however PERSON began working as a prostitute ( unbeknown to her mother ) on B ’s instructions . On DATE , DATE , PERSON left home in the evening telling her mother that she would not return that TIME . When she had not returned by DATE TIME , DATE , her mother reported her missing to the police . On DATE , she was taken to the mortuary where she identified the body of a girl found on DATE as being PERSON . PERSON had been killed by a client , D , who hit her head repeatedly on the floor .", "D was arrested on DATE .", "An inquest into PERSON ’s death was opened on DATE at the ORG ’s ORG in GPE . Since the Coroner had been informed that D had been charged with murder , the inquest was adjourned . On DATE , a death certificate was issued to the effect that PERSON had died of head injuries . The inquest was not resumed in the light of the criminal proceedings .", "In DATE D pleaded guilty to murder and was sentenced to life imprisonment .", "On DATE , the applicant ’s mother wrote to the Chief Constable of the South Yorkshire Police raising various questions about the lack of police action before PERSON ’s death , including a specific question as to why LAW had not been used . On DATE she received a reply in which a representative of the police referred to the difficulties of applying various provisions of the criminal law in this case , but acknowledged “ with the benefit of hindsight that more could have been done to prevent < PERSON > from being drawn into the maelstrom of drugs and vice . ”", "On DATE , the applicant ’s mother issued a writ in ORG against ORG and ORG claiming damages for negligence . She applied for legal aid , submitting a statement of case in which she alleged that the police and social services had been aware of her daughter ’s connection with CARDINAL men with criminal records and had been warned that she was being led into underage sex and drugs . It was argued that there was no absolute immunity against suing the police , this depending on sufficient proximity existing between the parties , and that in this case the police and social services should have taken decisive action to protect PERSON from these men and prevented her from drifting into prostitution with its inevitable consequences . On the form where it was required to estimate prospects of success of the action , the solicitor indicated that it was not possible to say .", "On DATE , ORG area office refused the applicant ’s mother legal aid for these proceedings , stating that “ on the information submitted it is considered that you are unlikely to succeed in establishing negligence either in relation to your daughter ’s death or in relation to your own post - traumatic stress ” .", "On DATE , after a hearing at which the applicant ’s mother and her legal representative had attended to make representations as to why legal aid should be granted , the ORG area committee rejected her appeal on the ground that it had no reasonable prospects of success .", "On DATE , the applicant ’s mother was advised by counsel that the common law position was such as to preclude her from pursuing a claim for damages in the domestic courts .", "The applicant ’s mother made requests to various authorities for information about the background to and circumstances of PERSON ’s death . By letter dated CARDINAL DATE , ORG informed her that PERSON ’s file would have been destroyed in DATE , pursuant to a DATE rule applying to persons who were not on a child protection register or otherwise in the care of the social services .", "By letter dated DATE , the applicant ’s mother was informed by ORG that records existed holding details of the enquiry into PERSON ’s murder , but that they were not in a position to give any information additional to the extensive material provided during the police investigation by the Senior Investigating Officer . By letter dated DATE , the solicitors for the Chief Constable of GPE Police disputed that they were under an obligation to provide any further information or documents , and stated that the Chief Constable would however do so if ordered by a court .", "Following further requests to the social services , documents from ORG , including the case conference TIME , were given to the applicant ’s mother on DATE .", "In GPE and GPE , there is no single tort which imposes liability to pay compensation for civil wrongs . Instead there are a series of separate torts , for example , trespass , conversion , conspiracy , negligence and defamation . Negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort of negligence : a duty of care , breach of the duty of care and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing :", "– that damage to the claimant was foreseeable ;", "– that the claimant was in an appropriate relationship of proximity to the defendant ; and ,", "– that it is fair , just and reasonable to impose liability on the defendant .", "These criteria apply to claims against private persons as well as claims against public bodies . The leading case is ORG v. PERSON ( [ DATE ] CARDINAL AC CARDINAL ) .", "If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .", "In PERSON v. Chief Constable of GPE ( DATE A.C. CARDINAL ) , the mother of a victim of the PERSON instituted proceedings against the police alleging that they had failed properly to exercise their duty to exercise all reasonable care and skill to apprehend the perpetrator of various murders and to protect members of the public who might be his victims . Lord PERSON in ORG found that there was no sufficient foreseeability of harm to this victim , there being no general duty of care to protect all young females from a risk at large and that the imposition of liability was also excluded by strong policy reasons relating to the operational efficiency of the police . Exceptions to this approach arose in later cases ( e.g. FAC and another v. the Chief Constable of GPE [ DATE ] Q.B. CARDINAL ) .", "In X and Others v. ORG ( [ DATE ] CARDINAL ORG CARDINAL ) , ORG held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children . In subsequent cases , it was not excluded that in certain circumstances a duty of care might arise ( see e.g. PERSON v. ORG of GPE [ DATE ] CARDINAL WLR CARDINAL ) ." ]

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[ "The applicants were born in DATE respectively and live in the village of GPE , GPE .", "The facts of the case as submitted by the parties are summarised in section A below ( paragraphs CARDINAL - DATE ) . A description of documents submitted by the Government is contained in section B below ( paragraphs CARDINAL - CARDINAL ) .", "The first CARDINAL applicants are a married couple . They have CARDINAL children , CARDINAL of whom – PERSON , born in DATE , and PERSON , born in DATE – lived together with their parents in a household comprising QUANTITY houses in GPE . The third applicant was married to PERSON .", "On DATE a NORP armoured personnel carrier ( ORG ) was attacked and blown up in the vicinity of PERSON and the military responded with a “ sweeping ” operation in the village .", "During this operation an armed man , who was being pursued by soldiers , entered the applicants ' house and hid in one of the rooms . According to the Government , the man was PERSON , a member of an illegal armed group . The servicemen strafed the house , using machine - guns and grenade - launchers . CARDINAL daughters and a grandson of the first CARDINAL applicants , the second applicant , the third applicant , PERSON and PERSON were inside the house at the time . A DATE grandson of the first CARDINAL applicants was in a car parked in the courtyard .", "A. was killed when the military threw CARDINAL grenades into the house and shelled it from the ORG . The servicemen then wrapped the corpse in a blanket and put it into PERSON car , a white GPE . They then searched the house . PERSON , who had been feeling ill that day and was lying in bed , was blindfolded and ordered to step out of the house and lie down .", "Major PERSON , an officer in command , seized the identity papers , car documents and car key belonging to PERSON , who was then forced into the car . PERSON was put into an ORG which had no visible vehicle number . They were both taken away .", "The first applicant later found out that the ORG number was CARDINAL and belonged to ORG of ORG of GPE ( ORG разведывательное управление PERSON ) .", "Following their detention , PERSON and PERSON were brought to a temporary operational headquarters of the military commander 's office situated near GPE . According to the first applicant , who referred to unnamed witness statements , PERSON was beaten there by federal officers .", "Thereafter the PERSON brothers were brought to ORG of the ORG ( временный ОВД Урус-Мартановского района , “ the VOVD ” ) and questioned . The first applicant submitted , with reference to the witnesses ' accounts , that after the interrogation her sons and CARDINAL other persons apprehended in GPE DATE had again been brought to the temporary operational headquarters . At TIME the military released the other QUANTITY persons , but not PERSON and PERSON , of whom there was no further news .", "DATE federal troops sealed off the village of PERSON . On DATE , after restrictions were lifted , the first applicant went to ORG and notified the head of the district administration ( глава администрации ) of the detention of her sons .", "She then went to the district military commander 's office ( районная военная комендатура ) where she noticed her elder son 's car in the courtyard . The first applicant applied to military commander PERSON with enquiries about her sons and the car . The military commander told the first applicant that he had no information concerning PERSON and PERSON and advised her to come back in DATE . As regards the car , PERSON stated that it was “ unclean ” .", "On DATE first applicant also applied to the ORG prosecutor 's office ( прокуратура Урус-Мартановского района ) , claiming that her sons had been unlawfully detained .", "On DATE the first applicant went to the military commander 's office again . PERSON told her that he had not participated in the “ sweeping ” operation on DATE and had no information about the whereabouts of her sons . Later , the military commander stated that the PERSON brothers had been taken to the main federal military base in GPE . As to the car , PERSON said that a database check had confirmed that it was “ clean ” and that the first applicant had to produce a power of attorney to recover the vehicle . The first applicant stated that she did not have this paper , as all the documents had been in the seized car , and the military commander refused to return the vehicle . In the first applicant 's submission , the car was returned only on DATE , after her son - in - law had brought a copy of the power of attorney from a vendor from ORG .", "During DATE and DATE the first applicant repeatedly applied to the military commander 's office , the PERSON and prosecutors at various levels in connection with her sons ' disappearance . She received hardly any substantive information from official bodies in reply to her enquiries . The responses were mainly formal ones stating that her requests had been forwarded to different prosecutor 's offices .", "In a letter of DATE an acting prosecutor of ORG informed the first applicant that PERSON and PERSON were not detained in the PERSON , that they were not listed in the PERSON registration papers , and that no criminal proceedings had ever been brought against them . The letter further stated that information requests sent to military units had remained unanswered , and that the head of ORG had been instructed to commence a criminal investigation into the disappearance of the PERSON brothers .", "According to the applicants , on DATE the NORP TV channel ORG showed PERSON body as that of a rebel fighter killed during the “ sweeping ” operation in PERSON on DATE . The applicants did not submit a copy of that recording .", "NORP In DATE a serviceman of a military unit stationed in the village of ORG produced a plan of a burial site near the cemetery of PERSON , where , he claimed , PERSON and PERSON had been buried . According to the applicants , they had to pay for the indication of the site .", "On DATE the applicants notified the head of the administration of PERSON , ORG , the military commander 's office and the district administration of ORG ( администрация Урус-Мартановского района ) that they were going to excavate the grave .", "On DATE second applicant exhumed the grave in the presence of a police officer and officials from the local administration and found CARDINAL corpses , all of which showed signs of having met a violent death . He identified his sons ' bodies by fragments of the remaining teeth . The other CARDINAL bodies were identified as that of the man killed in the applicants ' house on DATE and that of a resident of PERSON , who had been detained along with the PERSON brothers . It appears that the remains were examined by officials of the administration of PERSON , who issued a certificate in this respect .", "NORP The police officer undertook no investigative actions at the excavation site . According to the Government , the applicants refused to submit the bodies for an autopsy on account of their national and religious traditions . The applicants buried the remains shortly afterwards , without taking photographs or inviting a medical doctor to attend before the burial .", "On DATE ORG certified the death of PERSON , upon the first applicant 's request . The court heard evidence from CARDINAL witnesses , who confirmed the first applicant 's submissions about the detention of her son on DATE , the discovery of his body and his burial on DATE at the GPE cemetery . The court certified that PERSON death had occurred on CARDINAL DATE in the village of LOC . It does not appear that a court certification of death was made in respect of PERSON .", "On DATE and DATE respectively the registry office of ORG issued death certificates for PERSON , born in DATE , and PERSON , born in DATE . The date and the place of death were recorded DATE , PERSON .", "On DATE a medical certificate of death was issued for PERSON . Referring to the certificate of the administration of PERSON and a certificate of the ORG prosecutor 's office , the medical certificate stated that PERSON death had been caused by multiple stab wounds and severe injuries . The date and the place of death were recorded as CARDINAL DATE , PERSON .", "On DATE the Urus - Martan VOVD refused to institute criminal proceedings in connection with the discovery of CARDINAL bodies on CARDINAL September CARDINAL , referring to the absence of essential elements of a crime .", "On DATE the ORG prosecutor 's office set aside the above decision and instituted criminal proceedings under LAW ( CARDINAL-a ) of LAW ( murder of CARDINAL or more persons ) . The case file was assigned the number CARDINAL .", "In a letter of CARDINAL DATE the military prosecutor of military unit no . DATE ( военная прокуратура DATE ) informed the first applicant that a suspect in the blowing - up of the ORG had been found in their house , and that her sons had been detained for an identity check in this connection . The letter confirmed that after being apprehended PERSON and PERSON had been brought to ORG VOVD but stated that no further information about them was available , since they were not listed among the detained persons . The letter went on to say that on DATE a burial site had been excavated by police officers who had found CARDINAL male bodies there . CARDINAL of the bodies had been identified as those of the first applicant 's sons . The letter also stated that Major PERSON , the officer in charge of the operation , had left for his permanent location in ORG , and that efforts were being made to obtain information from him about the detention of PERSON and PERSON .", "On DATE the ORG prosecutor 's office received a letter from a district prosecutor of ORG informing him that on DATE Major PERSON had been questioned about the operation of DATE . The transcript of this interview was enclosed . Major PERSON stated the following :", "“ From DATE until DATE I was seconded to the town of ORG , GPE . ...", "In addition to ORG , military personnel of the troops of the interior and of the army ( военнослужащие из внутренних и федеральных войск ) and the military commander 's company ( комендантская рота ) also took part in the operation [ on DATE ] . I can not say which particular person was in command of the operation . From our department there was the head of ORG , PERSON . There were also CARDINAL generals , whose names I do not know , and military commander PERSON in the vicinity of the village of PERSON .", "Acting on the instructions of the superiors of the alignment , I and a group of DATE men arrived by bus and ORG in PERSON at TIME CARDINAL men in the group were police officers , the rest were army servicemen . I was in charge of the police officers , and the [ army ] servicemen were under the command of an officer with the rank of captain , whose name I do not know . I do not know in which particular military units those servicemen served and at whose disposal the ORG with the vehicle number CARDINAL was .", "During the “ sweeping ” operation we went to the courtyard of one of the houses . It was subsequently established that the house belonged to the PERSON family . ...", "I approached CARDINAL of the windows and looked inside . I saw a man wearing an ammunition jacket and holding a pistol . Having seen me , the man fired ... at me . ... In response to the shots from the house , our personnel opened fire . ... [ During the fight another ] man came over to me and said that he lived in GPE and was a relative of this family . ...", "CARDINAL of the soldiers threw CARDINAL grenades into the house , but the shots from the house did not stop . Then [ we ] started shooting at the criminal from the ORG , and only then did the fire from the house cease , but the house caught fire . ...", "CARDINAL man seemed to have been shooting from the house , and CARDINAL body was found inside . The soldiers put this corpse into a white car and the relative from GPE also got into this vehicle . Then I went out and saw CARDINAL cars near the house . The servicemen said that they had seized those cars . I can not tell who ordered them to seize the cars . I did not give such an order . Besides , on the ORG I noticed another detained man in a white shirt . I do not know who ordered that man to be detained . We escorted the detained men and CARDINAL cars to the outskirts of PERSON , where the command centre of the alignment was located . ... On the instructions of the superiors , the detained persons and the cars were left at the command centre . Upon my return from PERSON , somebody told me that the detainees and the red car had been released . The detainees were not brought to ORG , as upon my return there in the evening I saw neither the white car nor the persons apprehended during the fight at the ORG ' house . I do not know whether they were brought to the military commander 's office and who escorted them . ... Following the instruction of the superiors , we left these detainees at the command centre , and I have no further information about them , or about the white car . ”", "Having regard to the transcript , the prosecutor of ORG ordered the military commander PERSON to be questioned . According to the first applicant , that order was never complied with .", "In a letter of CARDINAL DATE the military prosecutor of military unit no . CARDINAL informed the ORG prosecutor 's office and the first applicant that an inquiry had been carried out into the first applicant 's allegations , and that no involvement of the military personnel of ORG or of the interior troops of ORG in the detention of the PERSON brothers had been established , and therefore no criminal proceedings would be brought against the aforementioned personnel .", "On DATE the ORG prosecutor 's office suspended the criminal proceedings in case no . DATE for failure to establish the identity of the alleged perpetrators . The first applicant was notified of that decision in a letter of DATE .", "On DATE the ORG prosecutor 's office quashed the decision of DATE , stating that the investigation had been incomplete and that , in particular , no forensic medical examination of the bodies had been carried out and the witnesses who had identified the corpses had not been questioned . The prosecutor 's office thus ordered that the investigation be resumed .", "On an unspecified date the first applicant received a letter from the ORG prosecutor 's office dated DATE . The letter contained a restatement of the facts of the detention of PERSON and PERSON and the discovery of their bodies and informed the first applicant that a criminal investigation had been commenced and that the case file had been assigned DATE . The letter also stated that the first applicant would be informed of any further developments in the case .", "On DATE the criminal proceedings in case no . CARDINAL were adjourned as it was impossible to establish the identity of the alleged perpetrators . The proceedings were then resumed pursuant to a decision of the ORG prosecutor 's office dated DATE and suspended DATE .", "On DATE the prosecutor 's office of GPE ( прокуратура PERSON , “ the NORP prosecutor 's office ” ) set aside the decision of CARDINAL DATE and resumed the investigation , ordering the investigators “ to study thoroughly the circumstances of the PERSON brothers ' disappearance and to establish the identity of those responsible ” .", "On DATE the ORG prosecutor 's office granted the first applicant the status of victim of a crime and civil claimant .", "On DATE the ORG prosecutor 's office suspended the investigation into the death of the PERSON brothers .", "In a letter of CARDINAL DATE ORG informed the first applicant that the investigation into her sons ' death had been resumed on DATE and was being supervised by them .", "DATE and DATE the proceedings remained suspended and there were no developments in the case .", "In DATE the present application was communicated to ORG . On DATE the ORG prosecutor 's office resumed the investigation , referring to the fact that a number of essential steps had not previously been taken and giving detailed instructions to the investigators as to what measures should be taken .", "In a letter of DATE the ORG prosecutor 's office informed the first applicant that the proceedings in criminal case no . DATE had been recommenced on that date .", "On DATE the Urus - Martan prosecutor 's office notified the first applicant of the suspension on DATE of the preliminary investigation into her sons ' murder in the absence of those responsible .", "It appears that at some point the investigation was resumed , then suspended on DATE and recommenced on the same date . It was then suspended on CARDINAL May and DATE and resumed on DATE and CARDINAL DATE respectively .", "Referring to the information provided by ORG , the Government submitted that the investigation into the murder of PERSON and PERSON had commenced on DATE and had then been suspended and resumed on several occasions , but had so far failed to identify those responsible . According to the Government , the applicants were duly informed about all decisions taken during the investigation . They further submitted that the first applicant had been questioned on DATE and DATE , DATE , DATE and DATE and DATE and had been granted the status of victim and been declared a civil claimant on DATE and CARDINAL DATE respectively . The second applicant had been questioned as a witness on DATE , DATE , DATE and DATE and DATE . Apart from the first CARDINAL applicants , the investigating authorities had also questioned CARDINAL witnesses , including the applicants ' relatives and acquaintances , residents of PERSON , the head of the local administration and a number of servicemen of law - enforcement agencies who had been working in GPE at the material time . The Government referred in particular to the statement of PERSON , an investigator of the ORG prosecutor 's office , to the effect that military commander PERSON had told him that the PERSON brothers had been detained and then released . The Government did not specify on which date this statement had been made . They also submitted that military commander PERSON had not been questioned during the investigation , as he had been killed on DATE in a terrorist attack . The Government did not indicate any other names of the servicemen who had allegedly been questioned by the investigators .", "According to the Government , it was impossible to identify other witnesses in the case , but the search for them was currently under way . The Government further stated that the applicants had refused to disclose the place of burial of PERSON and PERSON and allow the investigating authorities to exhume the bodies so as to enable forensic experts to examine them . Finally , the Government stated that the investigating authorities had sent a number of queries to various ORG bodies on DATE , CARDINAL and DATE , DATE , CARDINAL and DATE , DATE , DATE , DATE DATE , DATE , DATE and DATE and CARDINAL DATE and undertaken other investigative actions , but did not specify what those actions had been .", "On unspecified dates the first CARDINAL applicants issued separate sets of civil proceedings against ORG in ORG of GPE ( “ the ORG ” ) , seeking compensation for non - pecuniary damage in connection with the unlawful detention of their sons .", "On DATE and CARDINAL DATE ORG delivered CARDINAL similar judgments . It established that on DATE in the house of the PERSON family in the village of ORG , a member of an illegal armed group had been found and killed , as he had shown armed resistance . The applicants ' sons , PERSON and PERSON , were detained and escorted to ORG so as to establish the circumstances of the above - mentioned incident . On DATE their corpses were found at the outskirts of PERSON , and criminal proceedings were instituted in this connection but later suspended , as no culprits could be identified . The court further stated that under LAW of GPE the ORG was liable only for damages for its agents ' actions that were unlawful . It then noted that the military operation in GPE had been launched by virtue of Presidential Decree no . CARDINAL of DATE , and Governmental Decree no . CARDINAL of DATE which had been found constitutional by ORG on DATE , except for CARDINAL provisions of the governmental decree . In the latter respect the court noted that the said CARDINAL provisions had never been applied to the applicants and that “ it did not follow from the evidence submitted that there was a causal link between the loss by [ the first CARDINAL applicants ] of their sons and any unlawful actions on the part of the ORG bodies ” . The court concluded that the applicants ' claims were not based on domestic law and dismissed them accordingly .", "On DATE ORG rejected an appeal by the first applicant and upheld the judgment of DATE .", "It is unclear whether the second applicant appealed against the judgment of CARDINAL DATE , and , if so , what the outcome of the appeal was .", "In DATE , at the communication stage , the Government were invited to produce a copy of the investigation file in criminal case no . CARDINAL opened into the killing of PERSON and PERSON . Relying on the information obtained from ORG , the ORG replied 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 . In DATE the ORG reiterated its request and suggested that Rule CARDINAL § CARDINAL be applied . In reply , the Government stated that the submission of the case file would breach the relevant national legislation , given that it contained classified information of a military nature and personal data concerning witnesses . At the same time , the Government suggested that a ORG delegation could have access to the file at the place of the preliminary investigation with the exception of “ the documents [ disclosing military information and personal data concerning the witnesses ] , and without the right to make copies of the case file and transmit it to others ” .", "On DATE the application was declared partly admissible . At that stage the ORG again invited the ORG to submit the investigation file and to submit information concerning the progress in the investigation . In DATE the Government informed ORG latest dates on which the investigation had been suspended and reopened and produced CARDINAL documents running to CARDINAL pages from the case file , which , as could be ascertained from the page numbering , comprised CARDINAL pages . The documents included :", "( a ) a procedural decision of DATE instituting criminal proceedings in connection with the discovery of CARDINAL bodies on CARDINAL DATE ;", "( b ) numerous procedural decisions suspending and reopening criminal proceedings in connection with the killing of the applicants ' relatives ;", "( c ) a number of investigators ' decisions taking up case no . CARDINAL", "( d ) NORP letters informing the first applicant of the suspension and reopening of the criminal proceedings in case no . DATE .", "The Government did not furnish the ORG with any other documents from the case file .", "The Government enclosed a number of letters from various higher courts in GPE , stating that the applicants had never lodged any such complaints about the allegedly unlawful detention of their relatives or challenged in court any actions or omissions of the investigating or other law - enforcing authorities .", "NORP Until DATE criminal - law matters were governed by LAW RSFSR . On DATE the old Code was replaced by LAW .", "Article CARDINAL of the new ORG enshrines the rule that data from the preliminary investigation may not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission .", "The Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens ( as revised by LAW of DATE ) provides that any citizen has the right to lodge a complaint with a court when he or she considers that his or her rights have been infringed by an unlawful action or decision of a ORG agency , local self - government body or an institution , enterprise or association , non - governmental organisation or official or ORG employee . ORG may be lodged either directly with a court or with a higher ORG agency , which must review the complaint within DATE . If the complaint is rejected by the latter or there has been no response on its part , the person concerned has the right to bring the matter before a court .", "Under LAW of the Law on Operational Search Activities , an individual who considers that his rights and freedoms have been violated by the bodies carrying out the operational search activities can complain of those actions to a higher body carrying out the operational search activities , a prosecutor or a court ." ]

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

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[ "The applicants , Mr PERSON , Mr PERSON , Mr PERSON , PERSON , PERSON , PERSON , PERSON PERSON Halat and ORG , are NORP nationals who were born in 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 .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants were the founders and members of a co - operative by the name of ORG PERSON ( “ the cooperative ” ) .", "In DATE ORG and LANGUAGE ( PERSON ) ( “ the General Directorate ” ) expropriated a plot of land partially owned by the co - operative ( plot no . CARDINAL ) , located in the village of GPE , in the Höyük district of GPE , GPE .", "On DATE the co - operative brought an action before ORG seeking additional compensation . On DATE ORG awarded the cooperative additional compensation of MONEY ( TRL ) , plus interest .", "On an unspecified date in DATE , the applicants allegedly sought the enforcement of this judgment before ORG . They have not , however , submitted any supporting documents regarding these enforcement proceedings , which they blamed on the destruction of the archives of the enforcement office .", "On DATE ORG quashed the judgment of the first - instance court .", "On DATE ORG re - examined the case and awarded the co - operative additional compensation of GPE CARDINAL , plus interest .", "On DATE ORG upheld the judgment of ORG with a minor amendment ( düzelterek onama ) and awarded the co - operative ORG CARDINAL instead of the amount previously calculated by the first - instance court .", "On DATE the money owed to the co - operative , together with statutory interest , was deposited with ORG accounting office ( a total of ORG ) .", "By a letter dated DATE the co - operative 's lawyer was invited to apply to the accounting office of ORG to collect the additional compensation .", "In DATE the co - operative was liquidated .", "On DATE the applicants sent a warning letter to ORG through a notary public , requesting payment of the compensation awarded by ORG , together with interest .", "On DATE ORG replied that they could not be held responsible for the non - payment as the co - operative had failed to collect the compensation despite the official letter dated DATE inviting them to do so . In this letter , they also informed the applicants that the payment would be effected upon their application to the accounting office .", "According to the information in the case file , the applicants have still not obtained the additional compensation awarded by ORG ." ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE . They are officials of ORG .", "By Presidential Decree no . CARDINAL/CARDINAL of CARDINAL DATE , ORG was dissolved and a general election was called for DATE .", "NORP In a faxed letter of DATE to the NORP ambassador in GPE , the applicants , who are permanently resident in GPE , expressed the wish to exercise their voting rights in GPE in the elections to be held on DATE .", "On DATE the ambassador , relying on the instructions and information provided by ORG , replied as follows .", "“ [ ORG ] confirms its wish – frequently expressed at the institutional level – to enable NORP citizens resident abroad to vote from their place of residence . However , it is clear that this necessitates statutory rules which do not currently exist . In fact , such rules can not be introduced by a simple administrative decision , as special measures are required for the setting - up of polling stations in embassies and consulates ... In the light of the above and despite the wish expressed by the ORG , your request concerning the forthcoming elections can not be granted for objective reasons . ”", "NORP The general election took place on DATE . The applicants , who did not travel to GPE , did not exercise their right to vote .", "The relevant provisions of the LAW read as follows .", "“ ...", "Popular sovereignty shall be the foundation of government .", "All powers shall derive from the people and exist for the people and the nation ; they shall be exercised as specified by LAW . ”", "“ CARDINAL . The number of members of parliament shall be defined by law . It shall not be below CARDINAL .", "NORP The members of parliament shall represent the nation .", "NORP The members of parliament shall be elected through direct universal suffrage and by secret ballot , by those citizens who have the right to vote , as specified by law . The law shall not curtail citizens’ right to vote except in cases where the statutory minimum age has not been attained , in cases of legal incapacity or in connection with a final criminal conviction for certain offences .", "Parliamentary elections shall be held simultaneously throughout the country . The conditions governing the exercise of the right to vote by persons outside the country may be specified by statute .", "The exercise of the right to vote shall be mandatory . Exceptions and criminal sanctions shall be specified in each case by law . ”", "“ CARDINAL . The electoral system and constituencies shall be specified by a law which will apply to the elections immediately following the forthcoming elections unless an explicit provision , adopted by a majority of CARDINAL of the total number of members of parliament , stipulates that it is to apply as of the forthcoming elections .", "NORP The number of members of parliament elected in each constituency shall be specified by presidential decree on the basis of the population of the constituency for legal purposes , derived , according to the latest census , from the number of persons registered on the relevant municipal rolls , as provided for by law . The results of the census for this purpose shall be those published on the basis of the data held by the relevant department DATE after DATE of the census .", "Part of the ORG , comprising not CARDINAL of the total number of its members , may be elected on a uniform nationwide basis in proportion to the total votes won by each party throughout the country , as specified by law . ”", "“ CARDINAL . The ORG must be attentive to the situation of emigrant NORP and to the maintenance of their ties with the homeland . The ORG shall also attend to the education and the social and professional advancement of NORP working outside the ORG .", "The law shall lay down arrangements relating to the organisation , operation and competences of ORG , whose mission is to allow the full expression of NORP worldwide . ”", "The second paragraph of LAW was added during the DATE revision of the LAW .", "In DATE , LAW was amended as follows :", "“ Parliamentary elections shall be held simultaneously throughout the country . The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute , adopted by a majority of CARDINAL of the total number of members of parliament . Concerning such persons , the principle of holding elections simultaneously does not rule out the exercise of their right to vote by postal vote or other appropriate means , provided that the counting of votes and the announcement of the results are carried out at the same time as within the country . ”", "At the time of the parliamentary elections in issue , Presidential Decree no . PERSON , which was the electoral legislation then in force , provided as follows .", "“ CARDINAL . Any NORP national aged CARDINAL or over shall be entitled to vote . ... ”", "“ The following persons shall lose the right to vote :", "( a ) persons who have been placed under guardianship , in accordance with the provisions of LAW ;", "( b ) persons whose final conviction for one of the offences provided for in LAW or LAW is accompanied by a measure disqualifying them from voting for the duration of their sentence . ”", "“ CARDINAL . The right to vote in a constituency shall be reserved to those persons registered on the electoral roll of a municipality or local authority area within that constituency .", "The exercise of the right to vote shall be mandatory . ”", "The report on this bill placed before ORG by the Ministers of the ORG , ORG and ORG DATE indicated that the purpose of the bill was to fulfil “ one of the government ’s major historical obligations , one which undeniably reinforces NORP expatriates’ ties with the homeland ” . The report stated that voting rights for NORP nationals living abroad arose out of both LAW and LAW . It pointed out in particular that LAW . This provision obliges ORG to take all necessary measures to maintain NORP expatriates’ ties with GPE , to ensure that they have access to NORP education and to make provision , as a matter of ORG duty , for the social and professional advancement of NORP working outside GPE . Regulating the conditions for the exercise by NORP expatriates of their right to vote in NORP parliamentary elections will undeniably contribute to real ties being forged between NORP expatriates and their homeland . ” Moving on to the constitutional provision on this specific subject , namely LAW , the report characterised the statute to which that LAW . Lastly , the report considered that “ in these times of globalisation , it is self - evident that NORP expatriates should have a decisive say in the development of their own country ” .", "The Scientific Council ( Επιστημονικό Συμβούλιο ) of ORG is a consultative body reporting to the Speaker of ORG . It comprises CARDINAL members , including professors of law , political science , economics , statistics and information technology , and an expert in international relations . It produced a report dated DATE on the above - mentioned bill . The report noted that , in the past , some legal authorities had argued that LAW imposed upon the legislature an obligation to permit expatriate NORP to exercise the right to vote from outside GPE . However , referring to other legal authorities and to the preparatory work for LAW , it asserted that it was an option rather than a duty for the legislature to permit the exercise of voting rights from abroad . It also took the view that the optional nature of the above - mentioned provision of LAW had not been affected by the DATE constitutional revision .", "On DATE the bill was rejected by ORG since it failed to secure the majority of CARDINAL of the total number of members of parliament required under LAW . The members of parliament , especially those on the opposition benches , referred in particular to the number of NORP citizens living abroad compared with the numbers resident in GPE , and to the implications this would have for the composition of the legislature .", "The relevant texts adopted by ORG of ORG read as follows .", "“ ...", "NORP In accordance with the opinion of ORG ) adopted in DATE , [ ORG ] ... invites the member and observer ORG to reconsider all existing restrictions to electoral rights and to abolish all those that are no longer necessary and proportionate in pursuit of a legitimate aim .", "The ORG considers that , as a rule , priority should be given to granting effective , free and equal electoral rights to the highest possible number of citizens , without regard to their ethnic origin , health , status as members of the military or criminal record . Due regard should be given to the voting rights of citizens living abroad .", "...", "Given the importance of the right to vote in a NORP society , the member countries of ORG should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems . They should take appropriate measures to facilitate the exercise of such voting rights as much as possible , in particular by considering absentee ( postal ) , consular or e - voting , consistent with Recommendation Rec(CARDINAL)CARDINAL of ORG to member GPE on legal , operational and technical standards for evoting . Member GPE should cooperate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories .", "...", "The ORG therefore invites :", "i. ORG member and observer GPE concerned to :", "...", "b. grant electoral rights to all their citizens ( nationals ) , without imposing residency requirements ;", "c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures ( postal and/or consular voting ) and considering the introduction of e - voting consistent with Recommendation Rec(CARDINAL)CARDINAL of ORG and to cooperate with one another to this end ;", "... ”", "“ CARDINAL . Referring to its Resolution CARDINAL ( DATE ) on the abolition of restrictions on the right to vote , ORG calls upon ORG to :", "i. NORP appeal to member and observer GPE to :", "a. sign and ratify the DATE ORG on the Participation of Foreigners in Public Life at Local Level ( ETS No . CARDINAL ) and to grant active and passive electoral rights in local elections to all legal residents ; and", "b. reconsider existing restrictions on electoral rights of prisoners and members of the military , with a view to abolishing all those that are no longer necessary and proportionate in pursuit of a legitimate aim ;", "ii . invite the competent services of ORG , in particular ORG ) and its ORG , to develop their activities aimed at improving the conditions for the effective exercise of election rights by groups facing special difficulties , such as expatriates , prison inmates , persons who have been convicted of a criminal offence , residents of nursing homes , soldiers or nomadic groups ;", "iii . review existing instruments with a view to assessing the possible need for a ORG convention to improve international cooperation with a view to facilitating the exercise of electoral rights of expatriates . ”", "The Code states that “ the right to vote and to be elected may be accorded to citizens residing abroad ” ( point I.CARDINAL.CARDINAL.c.v . ) . The explanatory report makes the following indication in this regard :", "“ ... the right to vote and/or the right to stand for election may be subject to residence requirements , residence in this case meaning habitual residence . ... Conversely , quite a few States grant their nationals living abroad the right to vote , and even to be elected . This practice can lead to abuse in some special cases , e.g. where nationality is granted on an ethnic basis . ”", "The other relevant parts of the Code provide :", "“ ...", "CARDINAL Freedom of voters to express their wishes and action to combat electoral fraud", "i. NORP voting procedures must be simple ;", "ii . NORP voters should always have the possibility of voting in a polling station . Other means of voting are acceptable under the following conditions :", "iii . NORP postal voting should be allowed only where the postal service is safe and reliable ; the right to vote using postal votes may be confined to people who are in hospital or imprisoned or to persons with reduced mobility or to electors residing abroad ; fraud and intimidation must not be possible ;", "iv . NORP electronic voting should be used only if it is safe and reliable ; in particular , voters should be able to obtain a confirmation of their votes and to correct them , if necessary , respecting secret suffrage ; the system must be transparent ;", "v. very strict rules must apply to voting by proxy ; the number of proxies a single voter may hold must be limited ;", "... ”", "NORP The report notes , among other things , the following :", "“ Voting rights for citizens abroad", "External voting rights , e.g. granting nationals living abroad the right to vote , are a relatively new phenomenon . Even in long - established democracies , citizens living in foreign countries were not given voting rights until DATE ( e.g. GPE , GPE ) or DATE ( e.g. , GPE , GPE ) . In the meantime , however , many emerging or new democracies in LOC have introduced legal provisions for external voting ( out - of - country voting , overseas voting ) . Although it is yet not common in LOC , the introduction of external voting rights might be considered , if not yet present . However , safeguards must be implemented to ensure the integrity of the vote ...", "...", "Postal voting is permitted in several established democracies in western LOC , GPE , GPE , GPE , GPE ... It was also used , for example , in GPE and the GPE in order to ensure maximum inclusiveness of the election process ( ORG ( CARDINAL ) DATE ) . However , it should be allowed only if the postal service is secure and reliable . Each individual case must be assessed as to whether fraud and manipulation are likely to occur with postal voting .", "... ”", "The conclusions of this report read as follows .", "“ CARDINAL . National practices regarding the right to vote of citizens living abroad and its exercise are far from uniform in LOC .", "NORP However , developments in legislation , such as the judgment delivered recently by ORG in a case concerning GPE , which is not yet final , point to a favourable trend in out - of - country voting , in national elections at least , as regards citizens who have maintained ties with their country of origin .", "That is true at least of persons who are temporarily out of the country . But definitions of the temporary nature of a stay abroad vary greatly and if this criterion is adopted , it should be clarified .", "Distinctions should also be drawn according to the type of elections . ORG , single - constituency elections are easier to open up to citizens resident abroad , while local elections are generally closed to them , particularly on account of their tenuous link with local politics .", "The proportions of citizens living out of the country may also vary greatly from CARDINAL country to another . When there are a large number of them , they may have a decisive impact on the outcome of the election , which may justify the implementation of specific measures .", "It is perfectly legitimate to require voters living abroad to register to be able to vote , even if registration is automatic for residents .", "The obligation to vote in an embassy or consulate may in practice severely restrict the right to vote of citizens living abroad . This restriction may be justified on the grounds that the other means of voting ( postal vote , proxy voting , e - voting ) are not always reliable .", "To sum up , while the denial of the right to vote to citizens living abroad or the placing of limits on that right constitutes a restriction of the principle of universal suffrage , the ORG does not consider at this stage that the principles of the NORP electoral heritage require the introduction of such a right .", "Although the introduction of the right to vote for citizens who live abroad is not required by the principles of the NORP electoral heritage , ORG PERSON suggests that GPE , in view of NORP mobility , and in accordance with the particular situation of certain GPE , adopt a positive approach to the right to vote of citizens living abroad , since this right fosters the development of national and NORP citizenship . ”", "The right to vote is enshrined in LAW , the relevant parts of which read as follows :", "“ Every citizen shall have the right and the opportunity , without any of the distinctions mentioned in LAW and without unreasonable restrictions :", "...", "( b ) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot , guaranteeing the free expression of the will of the electors ;", "... ”", "During the drafting of the General PERSON on LAW , which was published on DATE by ORG , a proposal was made calling on GPE to enable their nationals residing overseas to make use of absentee postal - voting systems where such systems were available . However , as ORG could not agree on the proposal , it was not included in the General Comment .", "Article CARDINAL of the said ORG provides as follows :", "“ CARDINAL . Every citizen shall enjoy the following rights and opportunities :", "a. to take part in the conduct of public affairs , directly or through freely chosen representatives ;", "b. to vote and to be elected in genuine periodic elections , which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters ; and", "c. to have access , under general conditions of equality , to the public service of his country .", "The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age , nationality , residence , language , education , civil and mental capacity , or sentencing by a competent court in criminal proceedings . ”", "The right to vote under LAW is not absolute and may be subject to restrictions on the grounds expressly laid down in the second paragraph , which include “ residence ” . However , not every restriction of the right to vote based on residence is justified .", "In the case of ORG v. GPE ( Case CARDINAL , Report no . CARDINAL of DATE ) , ORG held that the approach to the interpretation and application of the right guaranteed under LAW was consistent with the case - law of the other international systems of human rights protection whose treaties provided similar guarantees . It referred in that regard to the case - law of ORG and ORG :", "“ CARDINAL . ... Like ORG and this Commission , ORG has recognized that the rights protected under LAW ORG [ International Covenant on Civil and Political Rights ] are not absolute , but that any conditions that apply to the right to political participation protected by LAW should be based on ‘ objective and reasonable criteria’ . The ORG has also found that in light of the fundamental principle of proportionality , greater restrictions on political rights require a specific justification .", "... ”", "Article CARDINAL § CARDINAL of this LAW is worded as follows :", "“ Every citizen shall have the right to participate freely in the government of his country , either directly or through freely chosen representatives in accordance with the provisions of the law . ”", "Taking the view that this provision was similar in substance to LAW , ORG interpreted LAW in the light of ORG General PERSON on LAW . It therefore held that any conditions applicable to the exercise of LAW rights should be based on objective and reasonable criteria established by law ( see PERSON and PERSON v. The GPE , Communication no . CARDINAL , § DATE ) .", "According to the comparative - law materials available to ORG on the legislation of member ORG concerning the right to vote from abroad , the majority of the countries concerned authorise and have implemented procedures to allow their nationals resident abroad to vote in parliamentary elections . However , the situation varies greatly and the different scenarios do not lend themselves to classification into neat categories . A distinction can nevertheless be made CARDINAL broad categories : those member GPE which permit their citizens to vote from abroad , on the basis of a variety of arrangements ; and those which , as a general rule , do not . Lastly , most of the member ORG which allow voting from abroad lay down administrative procedures for the registration of expatriates on the electoral roll .", "CARDINAL member GPE fall into this category : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” , GPE , GPE and GPE .", "The above - mentioned countries provide either for voting in polling stations abroad or postal voting , or both . The following CARDINAL countries allow voting in embassies or consulates or in polling stations set up elsewhere : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” and GPE .", "CARDINAL countries ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) allow their citizens living abroad to vote by post only , either through an embassy or consulate or by writing directly to the competent national authority . The possibility of voting either at an embassy ( or consulate ) or by post is provided for in GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . A handful of countries – GPE , GPE , the GPE , GPE and GPE DATE also allow voting by proxy . In GPE , proxy voting is the sole means by which nationals of that country can vote from abroad .", "GPE ( the GPE and GPE ) allow Internet voting . This type of voting is already enshrined in law and in operation in GPE , while it is under consideration in GPE .", "In CARDINAL member GPE ( GPE , GPE , GPE , GPE and “ the former GPE ” ) , only persons temporarily resident outside the country have the right to vote from abroad . In the last - mentioned country , the law refers explicitly to persons living and working abroad temporarily . In some countries , expatriates lose the right to vote after a certain period of time DATE in GPE and DATE in GPE ) .", "Certain countries such as GPE , GPE , GPE and GPE allow external voting only with the permission of the host country .", "In CARDINAL countries – GPE , GPE , GPE and GPE – expatriates may elect their own representatives to the national parliament in constituencies set up outside the country . In GPE , each of the CARDINAL constituencies elects a member of parliament . NORP citizens living abroad participate in the election of QUANTITY members of the ORG via ORG . DATE , they will also be able to elect CARDINAL members to ORG . In GPE and GPE , the number of parliamentary seats allocated to expatriate constituencies depends on the number of votes cast .", "Eight member ORG , GPE , GPE , GPE , GPE , GPE , GPE and GPE – do not allow voting from abroad in parliamentary elections . In particular , in GPE , the electoral code in force contains no provisions concerning voting from abroad . In GPE , strict rules are laid down , with postal voting for expatriates being confined to members of the police and armed forces and to NORP diplomats and their spouses . The right is therefore limited to a specific , very small group of individuals . Under the legislation in GPE and GPE , persons resident abroad may vote only in their own country .", "In CARDINAL of the member GPE which allow voting from abroad , persons wishing to avail themselves of this facility must apply by a certain deadline to be registered on the electoral roll , either to the authorities in their country of origin or to the diplomatic or consular mission abroad .", "NORP In GPE an application for registration must be made before each election to the country ’s central electoral commission . In GPE , persons eligible to vote have to submit an application to the last municipality in which they lived . In GPE , voters may request registration at the diplomatic or consular mission , by filling out an application to the local electoral bureau within the specified time - limit . In GPE and GPE , the request must be made to the local authorities . In GPE , voters living abroad must request registration on a special electoral roll held by the municipal authorities of ORG . In GPE , persons voting abroad must notify the national electoral commission , while in GPE they must request registration on the electoral roll as foreign residents . NORP voters must apply to the provincial branch of the electoral bureau for registration on the special list of absentee voters . In GPE , overseas voters must re - register DATE with their local electoral registration office .", "In some countries , the request must be sent to the diplomatic mission or consulate , which either draws up the list of voters itself or forwards requests to the competent authority in the country of origin . NORP citizens included on the population register held by the diplomatic mission or consulate must complete a form indicating the municipality in which they wish to be registered and the voting method they will use . The form is then sent to the municipality concerned and the person ’s name is added to the list of expatriate voters .", "In GPE , GPE , GPE and GPE , the list of expatriate voters is drawn up by the diplomatic or consular mission on the basis of requests from voters . NORP citizens wishing to vote abroad must register with the NORP embassy or consulate . NORP voters who wish to vote by post have to apply to the diplomatic mission or consulate concerned , where they are registered on a special list . In the GPE , expatriates eligible and wishing to vote must request registration on the electoral roll of NORP nationals living abroad by applying to the head of the consular mission , who forwards the request to GPE . In GPE , voting abroad entails prior registration on a consular list of voters . NORP citizens living abroad must apply to the diplomatic or consular mission with which they are registered . The application is forwarded to the municipality in which the person concerned habitually voted , and he or she is registered on the electoral roll there . In “ the former GPE ” , expatriate voters are registered on the country ’s electoral roll after applying to the diplomatic mission or consulate . In GPE , expatriate voters must register on a special electoral roll by submitting a declaration of residence to the nearest consulate .", "In other countries , expatriate voters do not have to complete any formalities in order to register , as the authorities register them automatically on the basis of the existing lists of voters . This is the case in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . Voters who are not on the electoral roll may register on request ( for instance in GPE , GPE , GPE and GPE ) .", "In GPE , voters must re - register on the national electoral roll after CARDINAL years’ residence abroad ; in GPE and GPE , the time - limit is DATE .", "In some countries which have automatic registration , expatriates must complete certain formalities in order to vote in their country of origin . For instance , NORP voters resident abroad who wish to vote in GPE must inform the relevant consular authority in writing . NORP expatriates must request registration on the electoral roll in GPE if they wish to vote there ." ]

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[ "P1" ]

[ "P1-3" ]

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[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by GPE kancelária PERSON , ORG . , a law firm with its registered office in GPE .", "The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant is a judicial enforcement officer ( súdny exekútor – “ JEO ” ) .", "The status and powers of and procedures relating to JEOs are governed by LAW ( Law no . PERSON . , as amended - “ the LAW ” ) , details concerning the remuneration of JEOs for carrying out enforcement proceedings being laid down in LAW of JEOs ( Decree no . CARDINAL/CARDINAL Coll . , as amended - “ the Decree ” ) .", "In her official capacity , the applicant acted on behalf of the municipal District of Bratislava – Staré mesto ( “ the claimant ” ) in seeking the enforcement of an amount of money payable to the claimant by CARDINAL individuals ( “ the defendants ” ) under a judgment of the Bratislava II ORG ( Okresný súd ) of CARDINAL DATE . The sum payable arose in consideration for the sale of non - residential LOC by the claimant to the defendants .", "Under the Decree , as it then stood , the basis for calculating the applicant ’s remuneration was the amount of the claim that was being enforced ( vymáhané ) . After the events complained of had taken place , this provision was changed in that the basis for the calculation of a ORG ’s remuneration was to be the amount of the claim that had actually been enforced ( vymožené ) . Should the entire claim be enforced , the remuneration would be PERCENT of that base figure ( see paragraphs CARDINAL in the “ Relevant domestic law and practice ” section below ) .", "On DATE the claimant requested that the applicant enforce the judgment and late - payment penalties against the defendants . The accumulated claim amounted in total to the equivalent of CARDINAL euros ( ORG ) .", "On DATE a single judge of ORG authorised the applicant to carry out the enforcement .", "On DATE the applicant issued a notice of enforcement ( upovedomenie o začatí exekúcie ) by which she notified the defendants that the enforcement proceedings had commenced and that , unless they settled their debt within DATE , the applicant intended to enforce the judgment and costs of the enforcement by establishing a mortgage over real property belonging to the defendants and by seeking a forced sale of that property .", "On DATE the applicant issued an order for enforcement ( exekučný príkaz ) of the judgment . By this order she directed the defendants’ bank to deduct the judgment debt and costs of the enforcement from the defendants’ account . By these means , amounts equivalent to some ORG CARDINAL and EUR CARDINAL were recovered , respectively , for the benefit of the claimant and the applicant by way of her remuneration .", "On DATE the claimant and the defendants reached a settlement , in which :", "( i ) the defendants acknowledged their debt ( equivalent to ORG CARDINAL,CARDINAL ) , consisting of the principal amount ( ORG CARDINAL ) and legal fees payable by them ( EUR CARDINAL ) ;", "( ii ) the claimant waived CARDINAL of the debt on the condition that the defendants paid the remainder according to a payment schedule agreed upon , less the ORG CARDINAL,CARDINAL that they had already paid ; and", "( iii ) the claimant undertook to withdraw its enforcement petition on the condition that the defendants “ settle all provable expenses of [ the applicant ] that [ had been ] incurred in connection with the enforcement of the clam [ referred to above ] ” .", "On DATE , the claimant lodged a request with the applicant for the enforcement to be discontinued . Reference was made to “ an agreement on the payment of the owed amount ” .", "DATE and DATE , the applicant requested that ORG discontinue the proceedings and rule on her costs and ORG invited the applicant to submit further information . The applicant responded , specifying the amount of her outstanding claim for remuneration at the equivalent of ORG CARDINAL .", "In a letter dated DATE the claimant informed the applicant that the defendants had paid the outstanding amount of their debt .", "On DATE ORG discontinued the enforcement proceedings and ruled that the defendants were to pay the applicant the equivalents of LAW by way of remuneration and of EUR CARDINAL exclusive of value - added tax ( “ VAT ” ) by way of reimbursement for the costs of enforcement .", "ORG referred to Article CARDINAL of the Code and to sections CARDINAL and CARDINAL of the Decree ( see paragraphs CARDINAL and DATE in the “ Relevant domestic law and practice ” section below ) . It based the calculation of the applicant ’s remuneration on the amount that had been actually obtained for the claimant through the direct involvement of the applicant ( EUR CARDINAL ) . The amount of remuneration already paid ( EUR CARDINAL ) was deducted .", "The decision of CARDINAL DATE stated that it was not subject to appeal . Later on , the LAW was amended so that a decision on the remuneration and reimbursement of a ORG ’s costs was made subject to appeal ( see paragraph CARDINAL in the “ Relevant domestic law and practice ” section below ) .", "On DATE the applicant challenged the ruling of CARDINAL DATE concerning her remuneration by way of a complaint under LAW to ORG ( Ústavný súd ) ( see paragraph CARDINAL in the “ Relevant domestic law and practice ” section below ) .", "She relied on a judgment ( nález ) of ORG of DATE in case no . II . ÚS CARDINAL ( see paragraph CARDINAL in the “ Relevant domestic law and practice ” section below ) and argued , first of all , that her claim for remuneration constituted “ possessions ” for the purposes of LAW No . CARDINAL .", "The applicant further argued that there was no justification in law for limiting the amount of her remuneration by calculating it on the basis of the amount actually enforced through her direct involvement . She submitted that the object and purpose of the relevant rules had required that the amount of her remuneration should have been calculated on the basis of the total amount paid by the defendants to the claimant while the enforcement proceedings were pending . This was implied , inter alia , in section CARDINAL(CARDINAL ) of the Decree read in conjunction with LAW of the LAW ( see paragraphs CARDINAL and DATE in the “ Relevant domestic law and practice ” section below ) , which regulated the remuneration of a ORG in the event that a defendant settled his or her debt voluntarily .", "A different approach would allow any defendant to circumvent the law by delaying payment of his or her debt until enforcement proceedings commenced and then paying the debt directly to the creditor without having to bear the consequences , such as the costs of the enforcement .", "A distinction between amounts paid through the involvement of a ORG and directly to the creditor without the involvement of a ORG was unfounded and unlawful .", "Accordingly , the applicant asserted a violation of her rights under LAW No . CARDINAL and its constitutional counterpart .", "On DATE ORG declared the applicant ’s complaint inadmissible as manifestly ill - founded .", "The Constitutional Court observed that the applicant ’s entitlement to remuneration as such had not been contested but that what remained disputed was that remuneration ’s amount .", "In those circumstances , her claim did not amount to an existing “ possession ” . Neither could her hope of her entitlement being realised as a specific amount in accordance with her interpretation of the relevant laws be considered “ legitimate ” so as to amount to a “ possession ” under the applicable case - law .", "The Constitutional Court accepted that the present decision was “ at [ a ] certain variance ” with its above - cited judgment in case no . II . ÚS CARDINAL . However , that judgment had concerned a specific problem relating to LOC . Even though it had not been expressly stated in that judgment , a ORG liable to pay ORG on his or her remuneration had a legitimate expectation to have that amount of tax reimbursed by a defendant . The present decision was thus fully in compliance with the ORG ’s jurisprudence .", "Article CARDINAL provides :", "“ CARDINAL . The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .", "NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order such authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .", "NORP In its decision on a complaint ORG may grant appropriate financial compensation to the person whose rights under paragraph CARDINAL have been violated . ”", "Under LAW , as applicable at the relevant time , a ORG is to “ abandon ” ( upustí ) enforcement proceedings if the debtor has complied with its obligations as adjudicated and has settled the costs of the enforcement .", "The supervising court is to discontinue ( zastaví ) the enforcement if the person who initiated the enforcement has so requested ( Article CARDINAL § CARDINAL ( c ) ) .", "Under the LAW , as applicable at the relevant time , no appeal lay against a decision on costs upon the discontinuation of enforcement proceedings . However , on DATE an amendment ( PERSON no . CARDINAL/CARDINAL Coll . ) to the Code entered into force , pursuant to which such decisions are now subject to appeal ( LAW of the amended Code ) .", "In respect of enforcement carried out under the LAW , a ORG is entitled to remuneration , reimbursement of costs and compensation for time spent on the matter . These expenses are normally to be borne by the debtor ( ORG CARDINAL and CARDINAL § CARDINAL ) ( see also the ORG ’s decisions of CARDINAL DATE in the cases of ORG v. GPE no . CARDINAL ( § § DATE and CARDINAL ) and no . CARDINAL/CARDINAL ( § § DATE and DATE ) ) .", "If the creditor causes the discontinuation of enforcement proceedings , the court can order him or her to cover the necessary costs of the enforcement ( Article CARDINAL § CARDINAL ) . This provision implies that the court has the ability , not an obligation , to make an order for costs against the creditor . Such an order presupposes an analysis of procedural responsibility ( zavinenie ) for the discontinuation . The provision confers discretion on the part of the court based on an assessment of the actions of the creditor and the degree and seriousness of the creditor ’s responsibility should it be established ( a decision by ORG of DATE in case no . I. ÚS CARDINAL/CARDINAL ) ( see also ORG v. GPE , no . CARDINAL/CARDINAL , cited above , § § DATE ) .", "Under section CARDINAL ) , as applicable at the relevant time , the basis for calculating a ORG ’s remuneration was the amount of the claim that was being enforced ( vymáhané ) .", "With effect as from DATE , section CARDINAL ) of the Decree was amended ( Decree no . CARDINAL Coll . ) to the effect that a ORG ’s remuneration was no longer to be calculated on the basis of the amount of claim that was being enforced ( vymáhané ) , but rather on the basis of the amount of the claim that had actually been enforced ( vymožené ) .", "An introductory report ( predkladacia správa ) and an explanatory report ( dôvody ) on the amendment refer to “ interpretative question marks ” and “ inconsistent practice in applying ” the existing rules in respect of the basis for calculating the remuneration of judicial enforcement officers . The amendment has no retroactive effect .", "Under section CARDINAL ) , a ORG ’s remuneration is to be PERCENT of the figure used as the basis for calculation .", "In the event that defendants settle their debts themselves and the enforcement is consequently “ abandoned ” under LAW of the LAW , the ORG ’s remuneration is to be reduced to CARDINAL of the amount calculated pursuant to the abovementioned rules ( section CARDINAL(CARDINAL ) ) .", "If a ORG succeeds in enforcing part of a claim before its enforcement is discontinued , the ORG ’s remuneration is to be calculated on the basis of the amount actually enforced ( vymožené ) ( section CARDINAL(CARDINAL ) ) . This provision applied at the relevant time and has remained unaffected throughout the subsequent legislative developments .", "On DATE the Constitutional Court gave a judgment ( nález ) in an unrelated case no . II . ÚS CARDINAL , concerning the applicability of GPE to the remuneration of JEOs . In this judgment , ORG held that :", "“ The term ‘ possessions’ encompasses things , rights and claims . ORG therefore considers that compensation in respect of costs of the proceedings , which is due to a [ ORG ] upon the discontinuation of enforcement proceedings , constitutes possessions , which are acquired by virtue of a final and binding ruling of an ordinary court awarding it . This claim fully enjoys the protection of [ ... ] LAW , because compensation in respect of costs of the proceedings is undoubtedly a claim of a party to the proceedings against another party to the proceedings , which is moreover enforceable as any other financial claim .", "A claim for compensation of costs of proceedings has to be allowed to the party concerned in the entire scope envisaged by statute , which includes [ VAT ] in so far as the party concerned is liable to pay that tax under the applicable statute on the amount awarded . ”" ]

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[ "ORG The CARDINAL applicants are NORP nationals born in DATE , respectively . Mr ORG GPE Chamarro and Mr PERSON Mas are serving long sentences at FAC no . CARDINAL ( Lleida-CARDINAL ) and ORG respectively and have the benefits of the open system . Mr PERSON is at present living in PERSON in GPE .", "At TIME on DATE , Mr PERSON , a DATE NORP businessman , was at his brother - in - law ’s house in GPE in the company of his brother - in - law and his own sister , PERSON , when CARDINAL men entered the flat under the pretext of being gas - board employees . They seized and held the maid , thus enabling other persons to enter .", "The latter threatened PERSON with guns and shut him in a room , where they fixed an explosive device to his chest . They demanded a ransom of MONEY from him , to be handed over within DATE , and gave him instructions on how to pay it , saying that on payment he would be told how to remove the device safely . They then left the LOC and departed in waiting cars .", "Mr Bultó returned home in his car . Shortly before TIME , the device exploded , killing him instantly .", "ORG On DATE , GPE investigating judge no . CARDINAL commenced a preliminary investigation ( diligencias previas - no . CARDINAL ) into these events . On CARDINAL May , he placed the relevant documents in investigation file ( sumario ) no . CARDINAL but later relinquished jurisdiction on the ground that the crime was a terrorist act which came within the jurisdiction of FAC in GPE ( see paragraph CARDINAL below ) . The case was accordingly sent to central investigating judge no . CARDINAL of that court ( juez central de instrucción ) , who opened file no . CARDINAL .", "ORG The police investigation led to the arrest on DATE of CARDINAL persons ( not including any of the applicants ) who were members of the E.PO.CA . ( NORP Peoples’ Army ) and one of whom had been recognised by witnesses . On DATE , they were charged with murder , with a terrorist act causing death and with possession of explosives .", "On DATE , however , the Audiencia Nacional decided to apply the amnesty law ( no . CARDINAL of DATE ) to the accused owing to the political nature of their motives . They were at once released .", "ORG On an appeal by the public prosecutor , ORG set this decision aside on DATE on the ground that by that stage of the proceedings it had not been established that the crime was politically motivated and not carried out for pecuniary gain . This judgment meant that investigation file no . CARDINAL was reopened . As the CARDINAL accused did not appear , however , the judge ordered them to be sought by the police , and in DATE he provisionally suspended the proceedings .", "ORG In the course of their investigations into the killing of PERSON , the police arrested Mr PERSON , aged DATE , and CARDINAL other persons on DATE . They were placed in police custody and held incommunicado , in accordance with the anti - terrorist legislation then in force ( see paragraph CARDINAL below ) .", "Unassisted by a lawyer , PERSON was questioned at the police station during his custody there and on DATE made a statement containing , in substance , the following :", "Until DATE he had been a leading member of a NORP nationalist organisation , the \" ORG \" , and from DATE on had taken part in the creation and training of armed groups , with the object of fighting for the independence of the NORP nation .", "In DATE , he had met CARDINAL young men including a certain \" PERSON \" , whom he identified as the applicant ORG , and in DATE had begun their theoretical and practical military training . In DATE , he had established another group of young men , CARDINAL of whom he identified as the applicant GPE .", "Subsequently , several people , including \" Thomas \" , had purchased weapons in GPE ; they had brought them into GPE via GPE and hidden them in dumps known to them alone .", "In DATE , CARDINAL groups had been established , CARDINAL of which was commanded by \" PERSON \" . The group members gave up all outside activities and were paid by the organisation . A network of flats and radio transmitters had been created later to allow contact between the groups .", "In DATE , PERSON had been informed that an explosive device had been produced , which could be attached to a person ’s body and subsequently defused on payment of an agreed ransom . The mechanical part of this device could have been designed by \" Thomas \" ( ORG ) and another activist , and the electronic part by PERSON and another person . \" PERSON \" and someone else had later shown the device to PERSON .", "In DATE , they had revealed to him that the first victim chosen was Mr PERSON .", "DATE after the killing , he had met the commando leaders and had learned that CARDINAL people had taken part in the operation and that Mr GPE and Mr Messegué had attached the device to the victim ’s chest .", "ORG When PERSON was brought before GPE investigating judge no . CARDINAL , in the presence and with the assistance of counsel , he amended his statement . In particular , he said that the bomb \" might have \" been made by the persons stated , but that he did not know the names of those who had carried out the attack on PERSON .", "ORG These statements were sent to central investigating judge no . CARDINAL in GPE , who reopened file no . CARDINAL on DATE . On DATE he charged Mr GPE with murder and with possession of arms and explosives , and ordered him to be held in custody on remand .", "In a further decision on DATE he charged CARDINAL others , including PERSON and PERSON , with murder , criminal damage and uttering forged documents , and issued a warrant for their arrest . As none of the six could be found , the proceedings continued solely against the co - defendants in custody .", "ORG During the investigation and again at the hearing , Mr PERSON retracted his statement to the investigating judge as far as the identification of GPE and ORG was concerned .", "On DATE , the first section of ORG the Audiencia Nacional sentenced him to DATE and CARDINAL months’ imprisonment for assisting armed gangs . It set aside the original charges , however , noting among other things that he had expressed disapproval when at DATE he had been told of the proposed operation against PERSON ; that the preparations had occurred without his knowledge ; and that he had only learned of the victim ’s death through press reports . It also ordered his immediate release because the period of the sentence had already been spent in custody on remand .", "ORG Following an appeal on points of law by PERSON son , acting both as a \" private prosecutor \" and as a party claiming civil damages , ORG quashed the judgment of the Audiencia Nacional on DATE . On DATE , it sentenced Mr GPE to DATE imprisonment for aiding and abetting a murder and ordered him to pay MONEY in damages to the victim ’s heirs . It held that the influence he exerted on those who committed the crime was sufficiently great to amount to aiding and abetting and went far beyond merely assisting armed gangs ; admittedly , he had made it clear that he was opposed to the crime , but he had done nothing to prevent it .", "A warrant was consequently issued - on DATE , according to the applicants - for Mr GPE arrest . Mr GPE has not so far been found by the police and has therefore not yet served his sentence .", "ORG The CARDINAL applicants were arrested with other persons on DATE and charged with belonging to the terrorist organisation DATE . Among items found at their homes were radio transmitters and receivers , a variety of implements , electronic equipment , publications of left - wing nationalist parties , files on leading politicians and businessmen , and books on topography , electronics and the chemistry of explosives .", "Section CARDINAL of Law no . CARDINAL of DATE on the suppression of terrorism , as renewed by ORG no . CARDINAL of DATE , was applied to their case ( see paragraph CARDINAL below ) . This authorised the police to hold suspects in custody for longer than the normal period of TIME , with leave from the investigating judge . The applicants were moreover held incommunicado and not allowed to have the assistance of a lawyer .", "While in custody they signed a statement in which they admitted having taken part in PERSON murder either as principals or as accessories ; their account differed from Mr GPE , however . Furthermore , the police discovered stocks of arms and explosives at places indicated by PERSON and PERSON .", "ORG On DATE , the persons held in custody appeared before GPE investigating judge no . CARDINAL , who questioned them - without any defence lawyer being present in the case of PERSON and PERSON . They retracted their confessions to the police and CARDINAL of them - Jabardo and ORG - complained of being subjected to physical and psychological torture while in police custody .", "By an order ( auto ) of DATE the judge directed that they should be held in custody on remand , and they were transferred to FAC .", "ORG On DATE , the resulting documents were sent to central investigating judge no . CARDINAL for inclusion in file no . CARDINAL .", "On DATE , the latter judge charged the applicants and CARDINAL other persons with murder and assisting armed gangs . He then sent letters rogatory to GPE for further inquiries to be made . GPE investigating judge no . CARDINAL served the charges on the applicants and examined them on DATE ; they confirmed the statements they had made to investigating judge no . CARDINAL and again alleged that their confessions had been obtained by means of torture .", "They were not , however , confronted with the prosecution witnesses or PERSON , who was then at liberty .", "PERSON instructed an advocate and an attorney in GPE on DATE , but the central investigating judge in GPE did not record these appointments until DATE . Mr Messegué and Mr PERSON did not instruct lawyers until DATE ; the investigation had been completed on DATE .", "ORG The case was then committed for trial to the first section of ORG the Audiencia Nacional .", "By an order of CARDINAL DATE , the court instructed the public prosecutor and the private prosecutor to make their interim submissions . They argued that the facts amounted to murder , possession of arms and explosives and forging identity documents ; as evidence they offered the examination of the defendants , the hearing of eye - witnesses and the production of the entire case - file ; no mention was made of PERSON .", "The file was sent to the attorney acting for Mr PERSON on DATE and to the ones acting for PERSON and PERSON on DATE . Each of the defendants conducted his defence separately with counsel of his own choosing . All the defendants declared their innocence and offered to produce similar evidence , including , in GPE and ORG ’s case , the statement made by ORG retracting the one he had made to the police implicating PERSON and PERSON in the murder .", "Mr ORG had been transferred to GPE but he and his counsel managed to get him returned to GPE in order to prepare his defence .", "ORG By an order made on DATE , the court - on this occasion composed of PERSON ( the presiding judge ) , PERSON and PERSON - admitted the evidence offered and set the case down for trial on DATE . It also ordered that the accused should be brought to GPE and appointed Mr PERSON and PERSON of the third section as additional judges to bring the number in the first section to CARDINAL in view of the heavy sentences being sought ( Article CARDINAL para . CARDINAL of LAW ) .", "On DATE , defence counsel ( all of whom were members of ORG ) applied for the trial to take place in GPE on account of the needs of the defence and witnesses’ travel difficulties . Subsequently , a NORP senator wrote to the court requesting it to at least postpone the transfer to GPE until after DATE . On DATE , the Audiencia Nacional , presided over by PERSON , who was sitting with PERSON and Mr PERSON , refused the first application and confirmed that the hearing would be held in GPE on DATE .", "ORG On DATE before the trial , counsel for the defendants met the presiding judge of the first section of ORG ( Mr de la Concha ) , in order to prepare for the hearing and discuss the possibility of an adjournment , as the applicants were still in prison in GPE . The presiding judge assured them that the GPE transfer was imminent and that the trial could therefore go ahead .", "The applicants stated that they left GPE on TIME of DATE and arrived in GPE at TIME the following morning , when the hearing was due to commence at CARDINAL ; they said that they were in very poor shape after travelling QUANTITY in a prison van . According to the Government , the journey took TIME at most .", "That same morning of CARDINAL DATE , the presiding judge had to leave GPE suddenly as his brother - in - law had been taken ill . As senior judge of the ORG , PERSON took his place . In accordance with the legislation in force , so the ORG asserted , the parties were not warned either of this substitution or of the replacement of Mr PERSON - who no longer belonged to the first section - by Mr FAC .", "ORG The trial was held on DATE in a high - security courtroom ; in particular , the defendants appeared in a glass cage and were kept in handcuffs for most of the time . The record makes no mention of any protest by them , except as regards certain exhibits which were not produced in court .", "The court agreed to admit in evidence a number of documents submitted by the defence . When examined by the private prosecutor in regard to matters in their statements to the police , the accused again denied any participation in the murder and again complained of being subjected to torture while they were in custody .", "ORG The public prosecutor offered for examination the CARDINAL witnesses who had been present at the time of the crime : the sister and brother - in - law of PERSON , and their housemaid . The sister and the maid were very old and could not come to GPE but the prosecutor asked that their statements to the police on DATE after the crime should be taken into account . PERSON brother - in - law gave evidence in court but did not recognise any of the applicants . The only documentary evidence produced by the public prosecutor was a copy of the file on the investigation .", "ORG For its part , the defence , with the court ’s leave , called CARDINAL witnesses ; some of them , who were arrested at the same time as the defendants , alleged that they too had been subjected to brutality while in police custody .", "All the parties agreed to treat the documentary evidence as if it had been produced ( por reproducida - see paragraph CARDINAL below ) .", "ORG The public prosecutor and the private prosecutor then confirmed their interim submissions ; counsel for the defendants , on the other hand , amended theirs and submitted that the amnesty law should be applied ( see paragraph CARDINAL above ) .", "The hearing was adjourned until TIME and resumed with addresses by the CARDINAL parties . The presiding judge finally asked the defendants if they had anything to add , and they answered in the negative . The hearing ended in the evening .", "ORG On DATE , the first section of ORG the Audiencia Nacional sentenced Mr GPE and Mr Messegué to CARDINAL years’ imprisonment for murdering PERSON ; it also sentenced Mr GPE to DATE and DATE imprisonment for unlawful possession of arms and to CARDINAL months’ imprisonment and a fine of MONEY for uttering forged documents , and Mr Messegué to DATE and DATE imprisonment for possessing explosives . Mr PERSON was sentenced to DATE and DATE imprisonment for aiding and abetting a murder .", "The court held it to have been proved that Mr GPE and Mr Messegué had directly participated in fixing the device to the victim ’s body and switching on the electric mechanism , after which they had given Mr PERSON instructions for the payment of a ransom , which was the condition on which he would be able to remove the device safely . The device had subsequently exploded for reasons that had never been properly established . Mr PERSON had assisted the operation by gathering information about public figures in GPE , including PERSON .", "In the same judgment the court refused to apply the amnesty law of DATE to the applicants . Even if they had been acting from a political motive , that motive was the independence ( and not merely the autonomy ) of the NORP nation and so did not fall within the scope of the amnesty .", "ORG The applicants appealed on points of law , relying on LAW ( right of all NORP to equality before the law ) , CARDINAL ( right to liberty and security of person ) and CARDINAL ( right to effective judicial protection ) of the LAW . They described the circumstances of their arrest and custody and pointed out that when they were questioned by the police they did not have the assistance of lawyers and had not been informed of their rights ; they had made confessions only because use had been made of coercion , threats and ill - treatment ( see paragraphs CARDINAL above ) .", "They also claimed that there was no evidence to rebut the presumption that they were innocent of PERSON murder , as the physical violence to which they had been subjected rendered their confessions invalid . Moreover , there was no connection between the facts found by the Audiencia Nacional and the evidence adduced before it , and its judgment did not explain how it had arrived at its decision .", "The applicants also criticised the Audiencia Nacional for not having determined all the issues raised in the defence submissions ( Article CARDINAL para . CARDINAL of LAW - see paragraph CARDINAL below ) : it had ignored their allegations that their statements to the police were invalid and had given no indication of the evidential value it attached to those statements , having regard to the material produced during the trial . Mr ORG submitted , moreover , that he was implicated solely by confessions extracted by force from Mr GPE , who had later retracted them before the judge ; the Audiencia Nacional had again not expressed an opinion as to their validity .", "Furthermore , the Audiencia Nacional had made an error of fact in assessing the evidence ( Article CARDINAL para . CARDINAL of LAW - see paragraph CARDINAL below ) , because there was no conclusive evidence to refute their protestations of innocence before the judge . Referring to Article CARDINAL para . CARDINAL of the LAW ( see paragraph CARDINAL below ) , which enshrines the principle of the presumption of innocence , and to ORG case - law on the subject , the applicants asserted that not only had the evidence been wrongly evaluated but no such evidence in fact existed .", "They further submitted that ORG had not indicated its reasons for holding that the facts had been established , as required by ORG precedents , even though the main defence submission had been that there was no evidence . There could only be one explanation for this , namely that the court had allowed itself to be influenced by the GPE alleged confessions to the police , which had been obtained in clear breach of the fundamental rights guaranteed in LAW and CARDINAL of the LAW .", "Mr PERSON also criticised the Audiencia Nacional for not having sought during the hearing to inquire further into the facts . He said that the only prosecution witness who had given evidence in court had not recognised the defendants and that important evidence was lacking , such as identification and the confrontation of witnesses and accused or a reconstruction of the events . Lastly , he pointed to a discrepancy between the judgment of DATE convicting PERSON ( see paragraph CARDINAL above ) and the judgment given in the instant case on DATE ( see paragraph CARDINAL above ) ; in his submission , this discrepancy showed that he , PERSON , could not have taken part directly in the attack on PERSON .", "ORG On DATE , ORG dismissed the appeals of Mr GPE and Mr Messegué .", "As to the validity of the confessions obtained by the police , including Mr GPE , it noted that the alleged defects related solely to the findings of fact and accordingly did not give rise to the procedural irregularity complained of , which related only to points of law .", "The court said the following about the presumption of innocence ( translated from the NORP translation provided by the Government ) :", "\" The evidence offered by the public prosecutor , the private prosecutor and the defence includes , as written evidence , the complete file on the investigation , containing : ( a ) the statement made to the judge by PERSON , assisted by his lawyer ( doc . no . CARDINAL in the file ) , in which he confirmed the following facts from his first statement to the police : the defendants PERSON and PERSON were members of an armed group designed to be the nucleus of a revolutionary army to free the NORP nation ; they were very closely associated with PERSON , particularly Mr Messegué ; they had been thoroughly trained in urban guerrilla tactics ; they lived ‘ freed from all external ORG , being paid by the organisation to devote all their energies to its work , in accommodation provided by the organisation ; they communicated with each other by means of transmitters and used false identity documents and assumed names ; PERSON was in charge of CARDINAL of the direct - action groups which , together with others , formed an organised unit or brigade ; both men had important positions in the organisation and had received training such that they ‘ might have’ constructed the explosive device ( Mr GPE the electronic component and Mr ORG the mechanical component ) used for the ‘ business operations and in particular the CARDINAL of which Mr PERSON was the victim - Mr GPE did not know the identity of or the methods used by the persons forming the groups which took part in that operation’ ; ( b ) finding of fact in the Audiencia Nacional ’s judgment of DATE in the same case ( doc . no . CARDINAL in the file ) , confirmed unchanged in ORG judgment of DATE convicting Mr PERSON : ‘ At an unspecified date at DATE ( he is referring to DATE ) CARDINAL of the young men whom he saw most frequently and whom the defendant ( Mr PERSON ) knew to be heads of armed groups told him they considered that the time had come to go into action and that they were contemplating operations to finance the members of the groups . They told him that they had adjustable explosive devices which could be fixed to the skin of selected victims so that the latter would be obliged to pay the money asked for in order to avoid the risk of an explosion entailed by removing a device without the instructions and equipment in the possession of those who had put it in place . At DATE , CARDINAL of these group leaders told him that they were thinking of a businessman , Mr PERSON , on whom to use this device for the first time’ ; ( c ) the statement made to the judge by Mr GPE Javier Barberà GPE , assisted by his lawyer ( doc . no . CARDINAL ) : he admitted being a member of ORG , working together with PERSON , being in possession of arms and knowing of the existence of stocks of arms ; ( d ) the statement made to the judge by PERSON , assisted by his lawyer ( doc . no . CARDINAL ) : he belonged to the armed organisation , had been trained in urban guerrilla tactics by PERSON and knew of the existence of a stock of explosives ; ( e ) the official report on a search of the flat at no . CARDINAL FAC , GPE ( doc . no . CARDINAL ) , and from the file on the investigation a statement by PERSON ( doc . no . CARDINAL ) to the effect that the defendant PERSON lived in the flat with other activists and that there were found there ( inter alia ) a transmitter , electronic equipment , lathes , tools and files containing press cuttings and information about a number of prominent people , and books on topography , the chemistry of explosives , and electronics ; ( f ) the official report on a search of the flat at no . CARDINAL FAC , GPE ( doc . no . CARDINAL ) , occupied by Mr PERSON Mas and PERSON ( statement in doc . no . CARDINAL ) and where a transmitter and receiver , medicines , wigs and stiff paper of the type used for national identity cards and for driving licences were seized ; ( g ) the official report on the discovery of an arms dump and CARDINAL radio transmitters at CARDINAL places indicated by the defendant GPE ( doc . no . CARDINAL ) ; ( h ) the official report on the discovery of an explosives dump indicated by PERSON and the destruction of the explosives on the spot ( docs . nos . CARDINAL and CARDINAL ) . The mere existence of this evidence , irrespective of its implications and the way in which it is assessed , is sufficient to rebut the presumption of innocence relied on by the defendants GPE and PERSON , and we therefore reject grounds CARDINAL and CARDINAL respectively of their appeals ; the facts established in paragraph CARDINAL of the recital finding that they were directly and immediately involved in the homicidal operation must consequently be confirmed in toto . The description of the facts as murder under Article CARDINAL para . CARDINAL of LAW with an aggravating circumstance under LAW para . CARDINAL , which was allegedly incorrectly applied according to GPE ’s sixth ground of appeal and ORG ’s fifth ground of appeal , was therefore correct and their appeals under section CARDINAL(CARDINAL ) of LAW must therefore be dismissed . \"", "On the other hand , ORG quashed the Audiencia Nacional ’s judgment in respect of Mr Jabardo , holding that the established facts amounted not to the crime of aiding and abetting murder but to the lesser offence of assisting armed gangs . It accordingly delivered another judgment on DATE acquitting him on the first charge but sentencing him to CARDINAL years’ imprisonment on the second charge . Lastly , it confirmed that the applicants were not covered by the amnesty law and it ordered an inquiry into their allegations of ill - treatment .", "This inquiry was begun in DATE by investigating judge no . CARDINAL in GPE and led in DATE to a discharge order being made by FAC .", "ORG The CARDINAL convicted men appealed to ORG alleging a violation of Articles CARDINAL para . CARDINAL ( right of everyone arrested to be informed of the reasons for his arrest and to be assisted by a lawyer ) , CARDINAL para . CARDINAL ( right to a fair trial and to be presumed innocent ) and CARDINAL ( right of all NORP to equality before the law ) of LAW ( see paragraphs CARDINAL above and CARDINAL below ) .", "As regards the factors taken into account by ORG , they made the following submissions .", "Mr GPE statement could be regarded only as witness evidence , yet it had not been offered as such nor had it been confirmed at the hearing . If CARDINAL accepted that it had been produced by means of the phrase \" por reproducida \" , the unacceptable consequence followed that all the actions and confessions contained in the police report would likewise have to be admitted as evidence , since they too appeared in the file on the investigation . In any case , the material statement did not provide any indication that the defendants had had any involvement in the murder .", "ORG judgment of CARDINAL DATE merely stated , in its second recital , that Mr Martínez Vendrell did not know the actual course of the relevant events .", "Mr GPE ’s statement to the investigating judge should not have been admitted in evidence , since he had made it without counsel ’s assistance ; furthermore , he merely denied that he had participated in the crime .", "Similarly , Mr ORG had declared to the investigating judge that he was innocent .", "The items found at the homes of Mr GPE and Mr Messegué and the statements by their female companions had no connection with the murder . The items , moreover , had never amounted to real evidence as it did not appear from the file that they had been given to the judge or assessed by the court - CARDINAL of the defence counsel had indeed protested at this during the trial ; as to the documents , these had never been appended to the police report nor placed elsewhere in the file on the investigation , so the court could not take them into account .", "The discovery of arms and explosives at the places indicated by PERSON and PERSON was relevant to the offences of unlawful possession of weapons and explosives but not to the murder .", "In sum , none of the factors listed by ORG could rebut the presumption of innocence in respect of the main charge , the attack on PERSON .", "For the rest , the applicants repeated in substance the submissions they had made before ORG .", "ORG On DATE , ORG declared the appeal ( recurso de amparo ) inadmissible as being manifestly ill - founded . As regards the presumption of innocence it gave the following reasons for its order ( auto ) :", "\" As the assessment of the evidence lies within the exclusive jurisdiction of the judges and courts , ORG can not find a violation of this provision unless there has been a failure to produce a minimum of evidence against the accused .", "In the instant case , however , this minimum of evidence was produced , namely in the statements made with the assistance of a lawyer to the investigating judge , the official reports on the searches made and on the real evidence discovered and in the facts as established in another judgment . ORG can not therefore review the criminal courts’ assessment of the evidence . \"", "ORG In DATE , the applicants were transferred from ORG in GPE to FAC ( Lleida-CARDINAL ) . In DATE , the Audiencia Nacional granted Mr PERSON parole . Since DATE , Mr GPE and Mr Messegué have been held in an open prison .", "ORG The police rearrested CARDINAL of the persons originally prosecuted ( see paragraph CARDINAL above ) , Mr S and PERSON , and the investigation was resumed on DATE .", "PERSON was sentenced to DATE imprisonment as being responsible for PERSON murder together with the applicants GPE and ORG . He appealed on points of law to ORG , which dismissed his appeal on DATE , holding that the evidence produced was sufficient to rebut the presumption of innocence . His subsequent appeal to ORG was declared inadmissible on DATE .", "As for PERSON , she was sentenced to DATE imprisonment for assisting armed gangs .", "ORG By LAW ,", "\" CARDINAL . Everyone has the right to effective protection by the judges and courts in the exercise of his legitimate rights and interests , and in no case may the right to a defence be curtailed .", "Everyone , further , has the right to be heard by the tribunal established by law , the right to a defence and to the assistance of a lawyer , the right to be informed of any charges against him , the right to a public trial without undue delay and attended by all safeguards , the right to make use of evidence relevant to his defence , the right not to make statements against himself and not to confess himself guilty , and the right to be presumed innocent .", "... \"", "ORG In view of ORG case - law in this area , ORG has extended the scope of proceedings in appeals on points of law . It has held that the presumption of innocence can be relied upon before it in respect of an infringement of the law resulting from an error made by the trial court when assessing the evidence ( see paragraph CARDINAL below ) , or on some other ground .", "According to a judgment of CARDINAL DATE , ORG review of the evidence is directed only to the question whether or not evidence was produced and taken and not to the criminal court ’s final , unappealable assessment of that evidence .", "ORG Article CARDINAL para . CARDINAL of the LAW provides for an appeal ( recurso de amparo ) whereby the protection of the rights laid down in LAW to CARDINAL may be secured .", "ORG According to the preamble to LAW , the file on the judicial investigation is \" the corner - stone of the hearing and the judgment \" . It is not a substitute for the hearing but a preparation for it .", "Since the reform of DATE ( Law no . CARDINAL ) , the adversarial nature of criminal proceedings applies to the investigation stage ; this enables the accused , assisted by his advocate , to intervene in respect of steps concerning him ( Articles CARDINAL and CARDINAL ) . In order to exercise this right , the accused must appoint an advocate ( abogado ) and an attorney ( procurador ) .", "The investigating judge has to build up his file under the direct supervision of the appropriate public prosecutor ’s office ( Article CARDINAL ) . He includes the evidence put forward by the public prosecutor and the other parties if he considers it relevant . He can also order evidence to be produced of his own motion , but in that case he adds to the file only such evidence as proves to be of value ( Article CARDINAL ) .", "Once the investigation is concluded , the judge forwards the documents to the relevant court ( Article CARDINAL para . CARDINAL ) , which takes the final decision to close the investigation after it has heard the public prosecutor and the private prosecutor ( Article CARDINAL ) .", "ORG Before the hearing , the public prosecutor and the private prosecutor make their interim submissions - in writing and in numbered paragraphs - on the punishable offences disclosed by the case - file , on their classification in criminal law , on the circumstances that may affect the accused ’s responsibility and on the penalty which he may incur . The defence , in its turn , presents its view of the classification in law of the facts disclosed by the case - file ( which is placed at its disposal ) and must reply by indicating , likewise in numbered paragraphs corresponding to the prosecution ’s submissions , whether it accepts or rejects each of them ; in the latter case , it makes its own alternative submissions ( Articles CARDINAL , CARDINAL and CARDINAL ) . The prosecution and the defence must , when making their interim submissions , indicate the evidence they propose to adduce ( Articles CARDINAL and CARDINAL ) , and this evidence is scrutinised by the reporting judge and admitted or rejected by the court ( Articles CARDINAL and CARDINAL ) .", "The hearing takes place in public , failing which it will be null and void ( LAW ) . It can not begin or be continued unless the accused is present . For this purpose , the law allows the accused to be transferred , if necessary , to the town in which the hearing is to be held .", "Evidence is taken in the order in which the parties have offered it . The court may also take such evidence as it considers necessary for the discovery of the truth ( Article CARDINAL para . CARDINAL ) . Furthermore , \" at the request of any of the parties , documents relating to evidence which , for reasons beyond the parties’ control , can not be produced at the hearing may be read out \" ( LAW ) . Where all or part of the file on the judicial investigation is adduced in evidence , there is an established practice that it will be regarded as having been produced ( por reproducida ) without having been read out if all those concerned so agree .", "Immediately after the evidence has been taken , the parties may make written amendments to their interim submissions or else make them final . The presiding judge calls the representatives of the public prosecutor and of the private prosecutor ( Article CARDINAL ) . In their pleadings , these representatives must set out the facts they consider proved at the hearing , their classification in criminal law , the part played in them by the accused and the civil liability flowing from them ( Article CARDINAL ) . The presiding judge then immediately calls the defence ; its pleadings must be consistent with its final written submissions ( Articles CARDINAL and CARDINAL ) . Lastly , the presiding judge gives the accused the opportunity of addressing the court in case he wishes to add anything in his defence ( LAW . After that , the presiding judge declares the hearing closed .", "ORG The judges deliberate immediately after the hearing , or at the latest on DATE ( Article CARDINAL ) , and a reporting judge ( magistrado ponente ) is designated for the purposes , inter alia , of informing the court , examining the evidence and preparing a draft judgment ( Articles CARDINAL - CARDINAL of the Code of Criminal Procedure ) . The final decision is written and signed within DATE ( Article CARDINAL ) . In drawing it up , the court has to assess in all conscience the evidence adduced during the hearing , the submissions of the prosecution and the defence , and the statements of the defendants ( Article CARDINAL ) .", "ORG An ordinary appeal does not lie against judgments of the Audiencia Nacional ; only the special remedy of an appeal on points of law or procedure is available .", "By Article CARDINAL , the law is deemed to have been violated", "( CARDINAL ) where , having regard to the facts declared proved in the judgment appealed against , there has been an infringement of a substantive provision of criminal law or any other legal rule of the same kind which has to be complied with when the criminal law is being applied ; or", "( CARDINAL ) where an error of fact has been made in assessing the evidence and this appears clearly from authentic documents not contradicted by other evidence .", "It has been held by ORG that in the second of these CARDINAL eventualities the principle of the presumption of innocence can be prayed in aid ( see paragraph CARDINAL above ) .", "ORG - compliance with procedural requirements includes cases in which :", "( a ) the judgment appealed against does not clearly state the facts deemed to have been established or discloses a manifest discrepancy between them or else mentions as proved facts \" concepts \" which , by their legal nature , prejudge the decision to be taken ( Article CARDINAL para . CARDINAL ) ;", "( b ) the judgment does not dispose of all the issues raised by the prosecution and the defence ( Article CARDINAL para . CARDINAL ) ; and", "( c ) one of the judges who participated in the judgment was challenged but without success , although the challenge was made within time , in the proper manner and for a legally valid reason ( Article CARDINAL para . CARDINAL ) .", "ORG The Audiencia Nacional and ORG both comprise several divisions with specific jurisdictions ( civil , criminal , administrative ) , each of which is in turn divided into CARDINAL - judge sections if the number of judges allows . Members of each division are always available to replace fellow members , and the president of a division can be replaced by the presiding judge of a section or by the senior judge .", "Section CARDINAL of LAW ( PERSON orgánica del Poder Judicial ) provides that where the judges designated to complete a section do not come from ORG , the parties must be informed of their identity CARDINAL before the public hearing begins .", "By the same section of the LAW , no challenge may normally be made after the hearing has begun . Under LAW , however , a challenge may be made at any stage of the proceedings but in no circumstances after the beginning of the oral stage unless on the ground of subsequent events . A judge may be challenged on the following legal grounds among others : that he is related by blood or marriage to one of the parties ; that one of the parties has either lodged a complaint or brought a prosecution against him or once did so in the past ; that the judge has himself lodged a complaint or brought a private prosecution against the person making the challenge , or once did so in the past ; that he is involved in litigation with the person making the challenge ; that he is or has been the guardian or ward of one of the parties or has had custody of him ; that he has taken part in the proceedings as advocate , legal adviser , member of the public prosecutor ’s office , expert , witness or investigating judge ; that he has a direct or indirect interest in the proceedings ; that he is a close friend or else obviously hostile ( LAW ) .", "ORG The Audiencia Nacional was given jurisdiction in terrorist cases on DATE ( Royal Legislative Decree no . CARDINAL ) . The court , which was created by legislative decree on DATE ( no . CARDINAL ) , sits at GPE and its criminal jurisdiction also extends to organised crime , business crime and offences whose effects reach beyond the territory of a single province . The judicial investigation of such offences is carried out by specialist judges ( jueces centrales de instrucción ) .", "ORG At the time the applicants and Mr PERSON were arrested , Law no . CARDINAL of DATE provided for a range of measures not permitted by the ordinary law in respect of terrorist acts committed by armed groups . This PERSON , which was originally intended to be in force for DATE , was renewed by ORG no . CARDINAL of DATE .", "Section CARDINAL of the PERSON makes provision for holding people in police custody for DATE ( instead of TIME ) . Furthermore , the judicial authority which has ordered detention can also order that the person concerned be held incommunicado for the length of time needed to complete the judicial investigation , without prejudice to the rights of the defence ( same section ) . There are also special provisions on searches and the monitoring of correspondence , including communications by telegraph and telephone ( section CARDINAL ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , PERSON Şükran Aydın , is a NORP citizen of NORP origin . She was born in DATE . At the time of the events in issue she was DATE and living with her parents in the village of ORG , which is about QUANTITY kilometres from the town of GPE where the district gendarmerie headquarters are located . The applicant had never travelled outside her village before the events which led to her application to the Commission .", "Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( Workers’ ORG ) . This confrontation has so far , according to the ORG , claimed the lives of CARDINAL civilians and CARDINAL members of the security forces .", "At the time of the ORG ’s consideration of the case , CARDINAL of the CARDINAL provinces of south - eastern GPE had since DATE been subjected to emergency rule .", "The facts in the case are disputed .", "According to the applicant , a group of people comprising village guards and a gendarme arrived in her village on DATE . Although the applicant put the time of their arrival at TIME , the Commission , relying on the recollection of the applicant ’s father and sister - in - law , found that it was more likely that this occurred early in TIME of CARDINAL June at TIME", "CARDINAL members of the group came to her GPE home and questioned her family about recent visits to the house by ORG members ( see paragraph CARDINAL above ) . Her family were threatened and subjected to insults . They were then taken to a village square where they were joined by other villagers who had also been forcibly taken from their homes .", "The applicant , her father , PERSON , and her sister - in - law , ORG , were singled out from the rest of the villagers , blindfolded and driven away to PERSON gendarmerie headquarters .", "The Government have disputed the applicant ’s claim that she and CARDINAL members of her family were detained in the circumstances described above . In his oral evidence to the Commission delegates who heard evidence from witnesses in GPE from CARDINAL to DATE ( see paragraph CARDINAL below ) , Mr PERSON , the commander of PERSON gendarmerie headquarters in DATE , stated that no operations had been conducted in or immediately around the village on DATE in question and no incidents had been recorded . Furthermore , in support of their challenge to the applicant ’s account of the events the Government drew attention to the inconsistencies in the evidence concerning the time of the incident and the number of village guards involved as well as to the fact that the applicant and her family failed to recognise any of the village guards although they all would have come from neighbouring villages .", "The applicant alleges that , on arrival at the gendarmerie headquarters , she was separated from her father and her sister - in - law . At some stage she was taken upstairs to a room which she later referred to as the “ torture room ” . There she was stripped of her clothes , put into a car tyre and spun round and round . She was beaten and sprayed with cold water from high - pressure jets . At a later stage she was taken clothed but blindfolded to an interrogation room . With the door of the room locked , an individual in military clothing forcibly removed her clothes , laid her on her back and raped her . By the time he had finished she was in severe pain and covered in blood . She was ordered to get dressed and subsequently taken to another room . According to the applicant , she was later brought back to the room where she had been raped . She was beaten for TIME by several persons who warned her not to report on what they had done to her .", "The Government have challenged the credibility of the applicant ’s account of the events . They pointed out that there was no indication in the custody register kept at PERSON gendarmerie headquarters that anyone had been detained on DATE . Had the applicant and the members of her family been taken into custody on that date the responsible duty officer would have followed the proper procedure and entered the details in the custody register . The station commander and the custody officer on duty at the time had been heard by the Commission delegates as witnesses and both had confirmed that no one had been taken into custody at that time . Furthermore , interrogation of terrorist suspects never took place at the PERSON headquarters but at the provincial headquarters in GPE . The Government also found it significant that the applicant failed to recognise photographs of the LOC when shown to her . Furthermore , the Government highlighted several inconsistencies in the way in which the applicant reported on the details of the alleged rape and assault to the public prosecutor and to ORG ( see paragraph CARDINAL below ) .", "According to the applicant , she , her father and her sister - in - law were taken away from the gendarmerie headquarters on or DATE . They were driven by members of the security forces to the mountains where they were questioned about the location of ORG shelters . They were subsequently released separately . The applicant made her own way back to her village .", "The Government argued that the applicant ’s account of her release also undermined the credibility of her allegations . They contended that it would have been extremely naïve on the part of the security forces to take the applicant and the members of her family to a location within TIME of NORP after DATE of detention to ask about the whereabouts of terrorists .", "On DATE the applicant together with her father and her sister - in - law went to the office of the public prosecutor , Mr FAC , in PERSON to lodge complaints about the treatment which they all alleged they had suffered while in detention . The public prosecutor took statements from each of them . The applicant reported that she had been tortured by being beaten and raped . Her father and sister - in - law both alleged that they had been tortured . According to the applicant , she confirmed her account of what happened to her in a statement given to ORG on DATE , which was submitted , undated , to the ORG along with her application .", "All CARDINAL were sent the same day to Dr PERSON at ORG . The public prosecutor had requested PERSON to establish the blows and marks of physical violence , if any , in respect of PERSON and PERSON . In respect of the applicant , he requested that she be examined to establish whether she was a virgin and the presence of any marks of physical violence or injury .", "In his report on the applicant dated DATE , PERSON , who had not previously dealt with any rape cases , stated that the applicant ’s hymen was torn and that there was widespread bruising around the insides of her thighs . He could not date when the hymen had been torn since he was not qualified in this field ; nor could he express any view on the reason for the bruising . In separate reports he noted that there were wounds on the bodies of the applicant ’s father and sister - in - law .", "On DATE the public prosecutor sent the applicant to be examined at ORG with a request to establish whether she had lost her virginity and , if so , since when . She was examined by Dr PERSON , a gynaecologist . According to the doctor ’s report , dated the same day , defloration had occurred DATE prior to her examination . No swab was taken and neither the applicant ’s account of what had happened to her nor whether the results of the examination were consistent with that account were recorded in his report . Dr ORG did not comment on the bruising on her inner thighs on account of the fact that he was a specialist in obstetrics and gynaecology . He did not frequently deal with rape victims .", "On DATE the public prosecutor took a further statement from the applicant who by that stage was married . On DATE he referred the applicant to ORG requesting that a medical examination be carried out to establish whether the applicant had lost her virginity and , if so , since when . The medical report dated CARDINAL DATE confirmed Dr ORG ’s earlier findings ( see paragraph CARDINAL above ) that the hymen had been torn but that after DATE defloration could not be accurately dated .", "On DATE the public prosecutor wrote to PERSON gendarmerie headquarters enquiring as to whether the applicant , her father and her sister - in - law had been held in custody there and , if so , as to the dates and duration of the detention and the names of those who carried out the interrogations . By letter dated DATE , the commander of the gendarmerie headquarters , Mr PERSON , replied that they had not been taken into custody . On DATE , he supplied the public prosecutor with a copy of the entries for DATE . There were CARDINAL entries for DATE .", "On DATE the public prosecutor wrote to PERSON gendarmerie headquarters requesting that the custody register for DATE be sent to him for inspection . The register contained no entries for DATE in question .", "NORP The public prosecutor sent the applicant ’s file to ORG in GPE . By letter dated DATE , the chief coroner requested that the applicant attend for an examination .", "NORP The public prosecutor wrote to the chief of security in PERSON on DATE and CARDINAL DATE requesting that the applicant be brought to the office of the Attorney - General . In a follow - up letter of CARDINAL DATE the public prosecutor referred to the fact that he had received no reply to his earlier letters . In a further letter dated CARDINAL DATE , the public prosecutor informed the chief of security at PERSON that the applicant , her father and her sister - in - law should attend at his office .", "By report dated CARDINAL DATE in reply to a request for information of CARDINAL DATE , the public prosecutor informed the office of the Attorney - General in GPE that there was no evidence to support the applicant ’s claims but that the investigation continued .", "On DATE the public prosecutor in PERSON took CARDINAL further statements from the applicant ’s father who confirmed his earlier account of the events of DATE . Her father also declared that the applicant and her husband had left the district in DATE to find work elsewhere and that he did not know of their whereabouts .", "On CARDINAL DATE the public prosecutor , Mr PERSON , interviewed Mr PERSON , a former ORG activist . Mr GPE alleged that the ORG members used the applicant ’s home as a shelter and that DATE and DATE she was having a sexual relationship with CARDINAL ORG members .", "On DATE , after the applicant ’s complaint had been declared admissible by the Commission , a public prosecutor , Mr ORG , took a statement from Mr PERSON who commanded PERSON gendarmerie headquarters from DATE to DATE . Mr PERSON , who admitted to memory loss as a result of a road accident , stated that he had no recollection of any incident of rape or torture at the time in question and denied any involvement .", "The applicant also alleged that she and her family have been subjected to intimidation and harassment following the communication by the Commission of her application to the ORG and particularly following the ORG ’s decision to invite her to give oral evidence . Her father was repeatedly asked her address by the public prosecutor and , on occasion , by the police . The applicant and her husband were also repeatedly called to the police station for no apparent reason , their house had been searched ( once before DATE and again on CARDINAL and CARDINAL DATE ) and they were questioned about her application to ORG . The applicant was also made to sign a statement of the contents of which she is ignorant . Further , on or CARDINAL DATE , the applicant ’s husband was taken into custody . On the first occasion , he was slapped , kicked and severely beaten with truncheons by CARDINAL police officers , one of his teeth being broken in the process . On the second occasion , he was again severely beaten by the same CARDINAL officers .", "Furthermore , the applicant alleged that on DATE , the applicant , her husband , father and father - in - law were called to PERSON police station from where they were sent to the public prosecutor . He showed them the applicant ’s husband ’s statement of DATE and asked questions about it . The applicant ’s husband was asked whether the police were intimidating them , to which he replied “ Yes ” . While they were not ill - treated on this occasion , the applicant ’s husband strongly considered that they all felt intimidated by the very fact of being called by the police and that the constant calls by the police to their homes were making their situation very difficult . The applicant also referred to incidents of harassment , including the stoning of her father - in - law ’s house which neighbours attributed to the security forces .", "The Government were requested by the ORG to respond to the above allegations . By letter and comments dated CARDINAL DATE , the ORG referred to the provisions of NORP criminal procedure whereby it is the duty and unavoidable obligation of public prosecutors to investigate the facts of crimes , which involves finding and questioning witnesses . In this context , police officers function as assistants to the public prosecutors . The public prosecutor who conducted the investigation instigated by the applicant and her father , and the police officers who acted under his authority , contacted the applicant and her father with the sole purpose of investigating the facts of the allegations and assembling the evidence . They submitted that the statements taken by the public prosecutor revealed no element of pressure being exerted and it was in the interests of the applicant for further evidence to be gathered . There was , they contended , no substantiation of the allegations of intimidation and harassment , the statements submitted by the applicant ’s representatives having been taken by extra - judicial means and their authenticity disputed . They submitted a letter from ORG ( ORG ) stating that no search took place at the applicant ’s house and that the purpose of the police ORG visit to PERSON was to communicate to the applicant the summons to attend the ORG ’s hearing . Since she was not there , he was asked for her address and there was no persecution involved . In an earlier communication of DATE in response to the first allegations of harassment of the applicant ’s father , the Government had responded that they rejected these allegations categorically and that they formed part of a campaign to influence the course of the proceedings and the holding of hearings to take evidence .", "At the taking of evidence before delegates of the Commission in GPE on DATE , the Agent of the Government responded to allegations made orally by the applicant ’s representative concerning the repeated questioning of the applicant ’s father . He stated that it was the duty of ORG to facilitate the proceedings of the Commission and that they had to notify the applicant . To avoid any problems of non - attendance or the waste of expenditure of coming to GPE if she did not intend to comply with the summons , it was necessary to obtain her address from her father and that was why he was continually asked for the address . Requesting that information from her father could not , in his view , be regarded as harassment .", "In the absence of any findings of fact reached by the domestic authorities on the applicant ’s complaint , ORG assessed the evidence and established the facts on the basis of :", "The Commission ’s findings can be summarised as follows :", "“ ... the evidence of these officers as regards the facilities for taking persons into custody and the practice regarding taking persons into custody during DATE has been less than frank . It finds itself left with serious doubts as to whether the gendarmerie custody register is an accurate record of persons taken into custody during DATE . In these circumstances , the Commission considers that the lack of any official confirmation of the applicant ’s detention is insufficient evidence to discredit the account of the applicant and her father , which it finds to be credible and on the whole consistent . ” ( paragraph CARDINAL of the ORG ’s report )", "“ ... the applicant was blindfolded , beaten , stripped , placed inside a tyre and sprayed with high - pressure water , and raped . It would appear probable that the applicant was subjected to such treatment on the basis of suspicion of collaboration by herself or members of her family with members of the ORG , the purpose being to gain information and/or to deter her family and other villagers from becoming implicated in terrorist activities ” . ( paragraph CARDINAL of the Commission ’s report )", "“ ... have been subjected to significant pressure from the authorities in circumstances which threaten to impinge on their continued participation in the proceedings before the ORG and that this has rendered the exercise of the applicant ’s right of individual petition more difficult ” . ( paragraph CARDINAL of the ORG ’s report )", "LAW makes it a criminal offence", "Under LAW of LAW , the public prosecutor must investigate the facts on being informed of the commission of a crime . He must conduct the necessary inquiries to identify the perpetrators , hear witnesses , take statements from suspects , issue search warrants , etc .", "Article CARDINAL of the LAW authorises the public prosecutor to conduct a preliminary investigation into an offence either directly or with the support of the police .", "According to Article CARDINAL the public prosecutor may institute criminal proceedings if he decides that the evidence justifies the indictment of a suspect . If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings , he may close the investigation . However , the public prosecutor may decide not to prosecute if and only if the evidence is clearly insufficient . Under Article CARDINAL a complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .", "Decree no . CARDINAL modifies the application of PERSON no . ORG , the Anti - Terror Law ( DATE ) , in those areas which are subject to the state of emergency , with the effect that the decision to prosecute members of the administration or of the security forces is removed from the public prosecutor and conferred on local administrative councils .", "These councils are composed of civil servants . Decisions of the local council may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal . If the offender is a member of the armed forces , he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of Article CARDINAL of LAW .", "Article CARDINAL of LAW provides as follows :", "“ All acts or decisions of the administration are subject to judicial review .", "…", "The administration shall be liable to indemnify any damage caused by its own acts and measures . ”", "This provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose liability is of an absolute , objective nature , based on the theory of “ social risk ” . Thus the administration is liable to indemnify persons who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .", "The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on the state of emergency , which provides :", "“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . ”", "Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to Article CARDINAL of LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated by the civil courts pursuant to LAW and non - pecuniary or moral damages may be awarded under LAW .", "Article CARDINAL of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment of DATE requires that a State party", "“ shall ensure that any individual who alleges that he has been subjected to torture in any territory under its jurisdiction has the right to complain to and have his case promptly and impartially examined by its competent authorities . Steps shall be taken to ensure that the complainant and witnesses are protected against ill - treatment or intimidation as a consequence of evidence given ” .", "Article CARDINAL of the Convention requires each State party to ensure", "“ that its competent authorities proceed to a prompt and impartial investigation , wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction ” .", "In its public statement on GPE adopted on DATE ( ORG / inf ( CARDINAL ) CARDINAL ) , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) , following CARDINAL visits to GPE , found :", "“ In light of all the information at its disposal , the ORG can only conclude that the practice of torture and other forms of severe ill - treatment of persons in police custody remains widespread in GPE ... ” ( paragraph CARDINAL )", "It emphasised the words “ persons in police custody ” , having heard fewer allegations and finding less medical evidence of torture and other forms of premeditated severe ill - treatment by members of the gendarmerie ( paragraph CARDINAL ) . It considered that “ the phenomenon of torture and other forms of ill - treatment of persons deprived of their liberty in GPE concerns at the present time essentially the police ( and to a lesser extent the gendarmerie ) . All the indications are that it is a deep - rooted problem ” ( paragraph CARDINAL ) .", "In its second public statement issued on DATE the ORG noted that some progress had been made in implementing the remedial measures which it had recommended but that “ the translation of words into deeds is proving to be a highly protracted process ” ( paragraph CARDINAL ) .", "The committee noted in its statement that in the course of visits to GPE in DATE its delegations had found clear evidence of the practice of torture and other forms of severe ill - treatment by the NORP police ( paragraph QUANTITY ) . It concluded that the information at its disposal", "“ ... demonstrates that resort to torture and other forms of severe ill - treatment remains a common occurrence in police establishments in GPE . To attempt to characterise this problem as one of isolated acts of the kind which can occur in any country – as some are wo nt to do – is to fly in the face of the facts ” . ( paragraph CARDINAL )", "In their written submissions to ORG ( see paragraph CARDINAL above ) ORG noted that the rape of a female detainee by an agent of the ORG for purposes such as the extraction of information or confessions or the humiliation , punishment or intimidation of the victim was considered to be an act of torture under current interpretations of international human rights standards . They referred in this respect to the PERSON and PERSON v. GPE decision of DATE ( Report no . CARDINAL , Case MONEY ) of ORG on Human Rights taken under LAW of ORG , to the reports published by ORG and to the fact that ORG for Former GPE had approved bills of indictment against individuals for torture based on allegations that they had raped female detainees .", "ORG also drew attention to current international legal standards on the investigation of allegations of rape made by detainees , in particular Articles CARDINAL and CARDINAL of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment adopted in DATE ( see paragraph CARDINAL above ) ." ]

[ "13", "3" ]

[]

[]

[ "25" ]

[ "25-1" ]

[]

[ "The applicants are NORP citizens of NORP origin born in DATE , DATE , DATE and DATE respectively . At the time of the events giving rise to their application , the applicants and their families were living in the town of ORG in GPE ( south - east GPE ) . The application concerns the applicants ' allegation that the security forces deliberately destroyed the town of ORG , including their houses and other possessions , as an act of retaliation for the inhabitants ' alleged sympathy for the ORG .", "The facts of the case , particularly concerning events on or CARDINAL and DATE , are disputed by the parties .", "The facts as presented by the applicants are set out in Section B below ( paragraphs CARDINAL ) . The Government 's submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) .", "The Commission , in order to establish the facts disputed by the parties , conducted an investigation with the assistance of the parties , pursuant to former LAW ( a ) of the LAW . CARDINAL delegates of the Commission heard the applicants in GPE from DATE as well as the following CARDINAL witnesses : PERSON , daughter of the applicant PERSON ; ORG , sister of the applicant GPE ; Türkan , PERSON and PERSON , respectively the step - mother , father - in - law and mother - in - law of the applicant PERSON ; PERSON , chief constable of the Lice police ; PERSON and ORG , public prosecutors ; PERSON Delidere , deputy mayor of ORG ; PERSON , judge at ORG ; PERSON , Governor of GPE ; PERSON , commander of ORG central gendarme station ; PERSON PERSON , commander of ORG district gendarmerie ; PERSON , commander of ORG gendarme commando unit ; and PERSON , gendarme investigator appointed by ORG .", "A further CARDINAL witnesses , who had been involved in the damage assessments carried out in ORG , had been summoned but did not appear before ORG .", "The DATE 's evaluation of the evidence and its findings of fact are set out in its report of DATE and are summarised in Section D below ( paragraphs CARDINAL - CARDINAL ) . The applicants accept the ORG 's findings of fact .", "Section E ( paragraphs CARDINAL - CARDINAL ) contains excerpts of the summary of the evidence given to ORG Delegates by PERSON and PERSON . Section F ( paragraphs CARDINAL - CARDINAL ) sets out the documents submitted by the parties to the Commission and the ORG relating to the assessment of damage .", "Lice was a small town with a population of , very approximately , CARDINAL people . Following an earthquake in DATE many of the houses had been rebuilt in materials which , if set alight , burned easily . Many of the citizens had built stables close to their houses out of mud ; these offered greater protection from fire . The official buildings were more substantial . ORG was built on a hillside , the northernmost part of the town being significantly higher than the southern side .", "There had previously been considerable ORG activity both within and in the vicinity of ORG . Attacks within ORG were directed against ORG buildings and occurred at TIME . In the surrounding area , attacks were not confined to TIME of darkness . A short time before the events at issue there had been an operation outside ORG which resulted in the bodies of CARDINAL dead terrorists being brought to ORG for the necessary administrative formalities to be carried out .", "On DATE a large scale , pre - planned operation was carried out in ORG by security forces , notably gendarmes , who opened fire indiscriminately . Before firing commenced , artillery had been placed across the ORG road , people in coffee shops had been instructed by gendarmes to go home and children whose parents were in the security forces had been collected from school . Soon after the firing started , helicopters arrived . Some of these were combat helicopters , rather than troop carriers , and machine guns operating out of them were used to fire into the town . Shots were also fired from , notably , the police headquarters , the gendarme commando unit compound , the gendarme station and the regional boarding school where military units were stationed . There was no ORG presence in the town and there was no incoming fire , which explains why these security buildings sustained little or no damage .", "Any clashes between the ORG and the security forces that took place on DATE occurred to the south and south - east of ORG . In the morning , a police vehicle had come under attack on the ORG road as it made its way to a petrol station . DATE , the ORG commando unit which had left town early in the morning to conduct an operation elsewhere was attacked as it attempted to re - enter ORG near the creek which runs from north to south to the east of Lice .", "NORP The residents of the north - westerly neighbourhood of ORG , where the houses of all applicants except PERSON were situated , heard the sounds of bullets impacting on the walls of their homes and stables . They saw members of the security forces driving round in armoured vehicles , firing randomly , and they also saw them on foot – the security forces were not being fired at . They saw and heard helicopters and heard explosions close by , just after the helicopters had passed overhead .", "PERSON house in the ORG neighbourhood in the south - east of ORG was deliberately set alight by security forces on DATE . The houses of the other applicants were deliberately burned by security forces the following morning , after the shooting had stopped . At TIME people were ordered out of their houses by security forces without being given the opportunity to gather their possessions . The first group , consisting of the households of the applicants PERSON and PERSON ORG and their neighbours , was gathered in an open area opposite their homes . The security forces broke down doors and/or windows and set fire to the houses with the use of a weapon in the shape of a long tube . The houses situated lower down in the neighbourhood were already on fire by the time the households belonging to the family of the applicant PERSON were ordered out of their homes and taken to join the others . The family of the applicant PERSON were made to leave their home later and by that time the group gathered in the open area had already left for the square near the police headquarters .", "A large number of people were made to wait in that square for TIME for the arrival of the Provincial Governor . The Governor , speaking in NORP , told the people that the ORG was responsible for the destruction . A middle - aged man and a young woman protested that the soldiers had set fire to the houses ; the man was taken away and beaten up , the woman was arrested . Following the Governor 's speech a curfew was imposed . Upon returning to their houses the applicants found nothing but a pile of ashes . After the curfew was lifted they left ORG .", "The applicants complained to the public prosecutor . He did not formally record their complaints but he did make arrangements for damage assessment reports to be drawn up . The applicants received no compensation . No investigation was launched into the actions of the security forces until the notification of the present application to the Government by the ORG , despite the applicants ' complaints and allegations of a similar nature being widely reported in the media .", "On DATE , at TIME , the ORG launched an attack on ORG which continued until TIME . The security forces had to respond . Despite the precautions taken by the security forces , CARDINAL of their members were killed and CARDINAL was injured . Among the civilian population CARDINAL people died and CARDINAL were injured . In the course of the ORG attack and the defence by the security forces certain houses and shops were damaged .", "The ORG acted immediately in support of the inhabitants of ORG . Tents were distributed . Buildings and shops that had been damaged were repaired after the damage had been assessed . Money was paid to shop owners whose merchandise had been damaged . Houses were repaired ; however , no money was paid to house owners .", "In the town of ORG a large part of the population lived in prefabricated housing , erected after an earthquake . These dwellings were made of materials which , if set alight , burned easily .", "In DATE there was a sizeable security force presence based in ORG . There was a police force and a central gendarmerie . The district gendarmerie headquarters was also based in ORG , sharing a building with the central gendarmerie . There was also a commando unit , attached to the gendarmerie and stationed in its own compound . According to the commander of that unit , PERSON , that compound also housed a mechanised infantry company . In addition , there appeared to have been an infantry battalion billeted at or near the regional boarding school at the relevant time .", "The evidence obtained concerning the frequency of attacks carried out on ORG by the ORG was contradictory . Most of the Government witnesses stated before the Delegates that official buildings were attacked by terrorists on a regular basis and they named a number of buildings which had been destroyed by terrorists . A number of the applicants and their witnesses , however , contended that no clashes had taken place in or around ORG , or that such clashes had been confined to the surrounding areas and the mountains . In their final observations to the Commission , the applicants , referring to newspaper cuttings , submitted that the ORG had avoided attacking ORG for DATE in order to spare the civil population . Although this tallied with the testimony of LOC , who said that there had been clashes in the past but that they had stopped , PERSON Delidere and PERSON PERSON told the Delegates that there had been clashes , tension and violence in ORG prior to DATE , Delidere adding that no one in ORG would go out after dark .", "From other cases that the ORG had dealt with concerning events in south - east GPE , it had become clear that ORG activity was rife in DATE . The evidence with which it was presented in the instant case did not persuade the ORG that this level of ORG activity would have been significantly different in ORG . The ORG further found credible the evidence – offered by both the applicants ' and the Government 's witnesses DATE that ORG attacks mainly took place at TIME . ORG also found it established that about a fortnight prior to the events at issue there had been an incident outside ORG during which CARDINAL terrorists were killed and their bodies taken to ORG .", "The Commission was prepared to accept , however , that those applicants and witnesses who professed to have no knowledge whatsoever of ORG activities in ORG or its vicinity may well have done so out of fear , and it considered that this did not necessarily affect the credibility of the rest of their testimony . It noted in this respect that police chief constable GPE and the gendarme officers PERSON and PERSON indicated that the voicing of accusations against the ORG could well have adverse consequences for the individual concerned .", "The Commission noted that according to the applicants , the town of ORG was not attacked by the ORG on DATE but was deliberately destroyed by security forces in a pre - planned operation . In their view , the most likely motive for this action , given previous incidents in the town , was to terrorise the local population and to ' teach them a lesson ' for their alleged sympathy for the ORG .", "Also according to the applicants , there was no evidence , either in the form of casualties or damage to security buildings , of any ORG presence in the town on DATE . They nevertheless conceded that the attacks on the police vehicle and subsequently on the returning commando unit which , they submitted , took place outside the town , to the south - east , could plausibly be attributed to terrorists .", "The Commission noted that the position of the petrol station where the police vehicle was shot at was not indicated on the map provided by the Government ( PERSON to the ORG 's report ) . On the map submitted by the applicants it featured ( as “ Garage ” ) just outside ORG ( Appendix III to the ORG 's report ) . Neither map containing an indication of scale , it was difficult to assess how far outside the town the petrol station was situated . Nevertheless , it did not appear to be in dispute that the shots fired came from the LOC rather than the town .", "The Commission was less inclined to accept , however , that the attack on the returning commando unit also occurred outside the town . It observed that according to the gendarmerie incident report of CARDINAL DATE , the armoured vehicle which was to collect the commando unit was sent to an area in the vicinity of the ORG neighbourhood , that Şahap PERSON 's report described this area as situated “ in the south of the district and to the south of the commando unit compound ” and that in his oral testimony Mr PERSON stated that he had instructed the commando unit to enter ORG through the creek bed in the ORG neighbourhood to the south of the commando unit compound . Again , in the absence of an indication of scale on the maps it was difficult to place this event with accuracy , but it would appear that the creek mentioned ran quite close to the inhabited area of the ORG neighbourhood . More importantly , Mr PERSON added that shots had been fired from houses facing the creek . The ORG found that the evidence before it thus pointed to a presence of ORG members or militiamen [ Nota : Militiamen : term used to describe members of the civilian population who provide the ORG with food , shelter and/or information . ] in at least some part of the town .", "The applicants also argued that the availability of helicopters very soon after the shooting started served as a further indication of the planned nature of the operation . The ORG noted that a considerable number of witnesses , including members of the security forces , testified to the presence of helicopters . Both in his report and in his account to the Delegates , Şahap ORG related how helicopters had been used to transport injured persons , including General PERSON , to hospital in GPE and how armed Cobra helicopters had been deployed . It was only police chief constable PERSON according to whom just CARDINAL helicopters had briefly flown over GPE around TIME : CARDINAL a troop carrier and CARDINAL with fire - power which had been sent in order to enable the first helicopter to land but which had returned to ORG upon learning that that first helicopter had been forced to put down at PERSON . The Delegates found PERSON an evasive and rather reluctant witness who was unwilling to acknowledge pieces of information unless these were directly put to him from the various incident reports . Although his ignorance of the actions of the various gendarmerie units appeared genuine and he might therefore not have had direct knowledge of the request for helicopters emanating from the gendarmerie , the Commission considered it scarcely credible that he would not have become aware of the presence of these helicopters as events unfolded .", "As to the time of arrival of the various helicopters , GPE told the Delegates that he had seen CARDINAL helicopters arrive from the direction of ORG TIME after the shooting had commenced . ORG stated that helicopters had been flying around throughout DATE . The Commission observed that it appeared from PERSON account that CARDINAL helicopter , with General PERSON on board , had landed at the commando unit compound TIME and also that the commando unit 's single helicopter had been sent to ORG early on in DATE . Although there had , therefore , been helicopters flying over ORG at an early stage , the helicopters used to transport the wounded and the armed Cobra helicopters did not arrive until later . The Government denied that any orders had been given to the helicopter forces prior to the events . However , they failed to comply with the ORG 's request to submit the operational orders for these forces . The ORG found this regrettable , given that the orders would presumably have been able to clarify at what time the helicopters had taken off .", "Although PERSON was adamant that no shots or bombs had been fired from helicopters , the Commission found it established that armed helicopters were deployed and that shots were fired from them . However , it remained in dispute whether this shooting was at all directed at populated areas or , as Mr PERSON maintained , confined to the areas to the north of ORG . The ORG found some strength in the argument that indiscriminate gunfire from helicopters over the town would have endangered the security forces on the ground , especially if , as the applicants alleged , members of these forces were moving around on foot .", "In spite of the above , the ORG considered that no clear picture of events emerged from the account , given both in writing and orally , by members of the security forces . In this context it noted in the first place the diverging recollections of the police on the one hand and the gendarmerie on the other . The differing accounts relating to the presence and number of helicopters had already been addressed . In addition , whereas police chief constable GPE estimated that CARDINAL terrorists had been ensconced in the mosque , gendarme officer PERSON put this number at CARDINAL and reckoned that in the town as a whole a maximum of CARDINAL terrorists had been present . The ORG was struck by the apparent lack of communication and coordination between the police and gendarmerie which the oral testimony of PERSON in particular brought to the fore : even after the events , this official , who was in charge of the local police force , appeared to be in the dark about many aspects of what had transpired on DATE .", "The successful escape of all terrorists allegedly present in the town was also rather surprising , as this was said to have occurred at a time when the security forces would by far have outnumbered the terrorists . Even if the ORG accepted that the terrorists ' escape route , northwards through the creek to the west of the ORG neighbourhood , was impossible to secure , it was not clear how they would have reached that part of the town . This question was even more pertinent in respect of the terrorists allegedly hiding in the mosque and who only had CARDINAL gates available to them to make their way out of an otherwise walled - in area .", "The Commission further observed that no satisfactory explanation had been provided for the limited amount of damage sustained by buildings belonging to the security forces , despite the fact that these were said to be the terrorists ' main targets . It noted that the police headquarters was not even included in the report of determination of damaged buildings . Given that these buildings were allegedly not only subjected to gunfire but also to rocket attacks , the ORG was not convinced that the mere fact that these buildings were made out of more solid materials than most of the houses could account for this .", "Although the ORG was thus of the opinion that a disturbing amount of relevant questions remained unanswered , it considered this an insufficient basis for a conclusive finding that no clash whatsoever took place on DATE , particularly given that it had similarly not been able to rule out a terrorist presence in some part of the town .", "PERSON submitted that on DATE his house and his barn situated in the ORG neighbourhood were deliberately set alight by soldiers .", "It was not in dispute that his house was damaged and that an assessment of the damage was carried out . PERSON told the Delegates that he had not obtained a copy of the relevant documents relating to the assessment , but the Government provided the file number under which his request for an assessment had been registered . Moreover , PERSON property was listed in the report on determination of damaged buildings as having sustained medium damage . While the foregoing allowed the ORG to find it established that PERSON property was damaged , the parties did not agree on whether the security forces or the ORG caused the damage , and the Commission therefore had to assess the evidence relating to this issue .", "The Commission noted that it had serious doubts about the accuracy of the record of the search of a house dated DATE according to which a number of empty PERSON cartridges were found in Mr PERSON 's house . In this respect , it noted in the first place that PERSON told the Delegates that it would have been impossible to find anything amongst the burned remains of his property . More importantly , it appeared that PERSON was at no stage questioned by the authorities about these cartridges : neither in DATE following DATE despite the facts that a considerable number of people had been arrested , that PERSON had been staying near his home and that he had in fact remained in ORG longer than many other people – , nor on the occasion when he was asked to make a statement to a public prosecutor DATE after the event . Indeed , the assertions that cartridges were found in his house struck the Commission as implausible or at least very doubtful .", "It was true that there were some discrepancies between PERSON statement to the ORG branch of ORG ( “ HRA ” ) and his testimony before the Delegates , notably with regard to the question whether he attended the speech given by ORG on DATE . According to the statement to the ORG this had been the case , but before ORG said that he was not aware of any such speech having been made and he had not attended it .", "The wording of the part of PERSON statement to the ORG that related to the Governor 's speech was very similar to the wording used in the statements of PERSON and PERSON and it seemed likely that parts of CARDINAL statement were copied and used in respect of other applicants . ORG , recalling that it had previously had occasion to remark critically on the accuracy of statements taken by the ORG branch of the ORG , stressed that it could not be expected to guess at possible explanations for inaccuracies encountered in such statements .", "The Delegates ' general assessment of PERSON oral evidence was that it was somewhat confused but , nevertheless , frank and convincing . In their observation of PERSON demeanour the Delegates obtained the impression that he was sincere in his testimony and that he was a credible witness . The Delegates were of the opinion that any discrepancies between PERSON oral evidence and his statement to the ORG were due more to a lack of attention to particular detail than indicative of any untruthfulness in his account . ORG was prepared to accept that this might explain why PERSON told the Delegates that his daughter PERSON had been in his house on DATE whereas according to his statement to the HRA NORP was married and living in GPE . It appeared in any event from his oral evidence that after the lifting of the curfew PERSON family had left ORG and had moved in with his daughter in ORG so that , regardless of whether NORP was in ORG or not on DATE , it did not appear in dispute that her home was in ORG .", "While the Commission found that it could not be excluded that on DATE a clash took place between the ORG and the security forces and that there could well have been a presence of either ORG or militiamen in the ORG neighbourhood where PERSON house was situated , it did not consider the possibility of such a clash having occurred to be sufficient to cast doubt on the veracity of PERSON affirmations regarding the origin of the damage to his property . Moreover , his account was on this point entirely consistent with the allegations made by the other applicants in regard to the destruction of their property .", "Making a global assessment , the ORG found it established that PERSON property and possessions were deliberately burned by security forces on DATE . As a result of this destruction Mr PERSON 's family moved to ORG , followed some time later by PERSON PERSON himself .", "The Commission noted that it was not in dispute that on TIME DATE the shooting had come to an end . It was , moreover , not in dispute that the houses of the applicants PERSON , PERSON , GPE and PERSON in the NORP neighbourhood were destroyed – this was confirmed by the report on determination of damaged buildings .", "According to the eye - witness accounts of events on DATE given by the applicants PERSON and PERSON and the witnesses Türkan , PERSON and PERSON , GPE and PERSON , soldiers came to the LOC neighbourhood that morning , ordered the people out of their homes and proceeded to set the houses alight . Most of these witnesses also described how the houses were set alight either by a pipe - shaped instrument or by something being thrown into the houses , GPE mentioning both methods . PERSON saw his own house being set on fire by soldiers and PERSON and PERSON had witnessed this as well . Moreover , ORG and Türkan , PERSON and PERSON saw PERSON house on fire . These witnesses , except for PERSON , also saw PERSON house burning . Türkan and PERSON saw GPE house on fire . Moreover , Türkan Ekmekçi saw soldiers surrounding the house of PERSON the moment this caught fire . PERSON and PERSON saw that PERSON house was on fire .", "Several witnesses told the Delegates that the soldiers who burned the houses had operated in groups . The Commission observed in this respect that teams made up of members of various commando units were active inside the town on TIME DATE . According to the commando unit commander PERSON these teams carried out searches .", "Most of the applicants and witnesses concerned stated that before they were made to go to the square in front of the police headquarters , where they were to be addressed by ORG , they had been gathered in an area near the school except for the PERSON family who were the last to leave the neighbourhood . Upon their return to the ORG neighbourhood they found their houses burned down .", "The Delegates found these applicants and witnesses convincing , even if the evidence of the more elderly ones was at times somewhat confused . The ORG considered that their accounts were detailed and on the whole consistent .", "The Government 's witnesses maintained , however , that no houses were set alight on DATE but that houses had burned down DATE as a result of fighting between the ORG and security forces . Yet those inhabitants of the ORG neighbourhood who appeared before the Delegates and who had been in ORG on CARDINAL and DATE were adamant that their houses had still been intact at daybreak of that DATE . In this respect the Commission found significant the assumption expressed by the police chief constable PERSON that the people of Lice would have slept in their own homes in TIME CARDINAL DATE or perhaps , because they were scared , in the house of a neighbour or of relatives . He appeared to discount the fact that if CARDINAL houses had been destroyed in the course of DATE it would have been impossible for people to stay in their own homes or those of most of their neighbours and relatives . This also led the Commission to make the observation that in all likelihood there would have been many more casualties and injured if all of the CARDINAL houses that ended up damaged or destroyed had caught fire on DATE since this implied that a very large number of people would have been out in the open , looking for shelter , perhaps attempting to put out the fires , amidst the heavy gunfire of DATE . The testimonies of the afore - mentioned applicants and witnesses before the Delegates , on the contrary , contained convincing accounts of how they had spent TIME of CARDINAL DATE sheltering from gunfire rather than fire . At no stage had this evidence been disputed or any kind of suggestion made as to where these people would have spent TIME if they were not where they said they were .", "The Commission thus accepted that ORG , for instance , spent TIME CARDINAL DATE in her brother PERSON 's house . PERSON and PERSON Ekmekçi took shelter in their barn on DATE and spent TIME either in that barn or , as PERSON stated , in their house – PERSON not specifically mentioning where she spent TIME . Consequently , the destruction of GPE house and PERSON house and barn , as documented in the report on determination of damaged buildings must have taken place after DATE . While this element deprived the account presented by the ORG 's witnesses of credibility , it rendered that of the CARDINAL applicants concerned all the more probable .", "Having regard to the evidence as a whole , the ORG found that the property and possessions in ORG of the applicants PERSON , PERSON , GPE and PERSON were deliberately burned by security forces on DATE . This led to these applicants and their families leaving the town .", "The Commission noted that no investigation was lodged into allegations of wrongdoing on the part of the security forces until the present application was referred to the respondent Government , despite the fact that a number of Government witnesses told the Delegates that , not long after the incident , they had become aware of the existence of allegations that houses had been burned deliberately by security forces . Police chief constable PERSON had read reports to that effect in the newspapers and judge PERSON had heard women voice such accusations while he was carrying out damage assessments , but neither man appeared to have seen any cause to inform the public prosecutor . PERSON had also been apprised of these allegations through newspaper- and television reports . In the light of this evidence , PERSON statement that no newspapers were available appeared untrue .", "The applicants PERSON and PERSON stated that they went to the public prosecutor 's office but that they did not receive any help . However , public prosecutor PERSON told the Delegates that he had not received any complaints of security forces deliberately having burned down houses . Even though the Commission could not rule out the possibility , put forward by PERSON , that people had in fact gone to the judge of the Magistrates ' Court rather than to him , it found it nevertheless peculiar that PERSON would not have read about allegations of wrongdoing by the security forces in the newspapers whereas PERSON and PERSON had . It is clear that various newspapers reported the allegations and the ORG was less than impressed with PERSON statement that he would have made enquiries into the underlying facts of such reports had he read them .", "The Commission further observed that the investigation launched after the present application was brought to the attention of the ORG , and which ended with a decision of non - prosecution being taken by ORG , still did not address the complaints of CARDINAL of the CARDINAL applicants , namely that their houses had been burned on CARDINAL rather than DATE . Finding that he lacked jurisdiction , ORG public prosecutor PERSON referred the investigation to ORG , after having obtained statements from CARDINAL of the applicants . PERSON , who was in charge of the subsequent investigation , requested the police to take statements from the applicants but it appeared that he drew up his report on the matter at a time when a statement from CARDINAL of the applicants , PERSON , had in fact been taken . The Commission noted that although this statement contains a very clear accusation of wrongdoing on the part of the security forces , Mr PERSON did not judge it necessary to hear any security force personnel . From the text of his report and his testimony before the Delegates , it seemed to the Commission that his attitude towards the complaints brought by the applicants was seriously prejudiced and that these complaints did not receive serious consideration .", "In conclusion , the ORG found that no effective investigation was carried out .", "The following are excerpts from the summary of the oral evidence as set out in the ORG 's report ( § § CARDINAL - CARDINAL ) , given to ORG Delegates by PERSON , a judge in ORG at the relevant time :", "“ CARDINAL applications for damage assessment had subsequently been filed . Such an assessment could only be carried out if a person requested it , and the findings of the on - site inspection would serve as the basis for any future law - suit .", "...", "The owners of the property had received a copy of the damage assessment report . Such a report constituted evidence . A claim for compensation could subsequently be filed with the administrative courts . Not all the people had understood this . Some had thought that they were going to receive material assistance or money directly from him . Although he had not been obliged to do so , he had usually attempted to explain that they had to apply to the administrative courts .", "He did not know if any other teams had collected evidence as to the cause of the fires . He did , however , think that a team came from the office of the Provincial Governor to establish the extent of the destruction to property . ”", "The following are excerpts from the summary of the oral evidence as set out in the ORG 's report ( § § CARDINAL - CARDINAL ) , given to ORG Delegates by PERSON , Governor of GPE province at the relevant time :", "“ He had gone to ORG a little after TIME on DATE . He had informed the security forces TIME beforehand that he wanted to find out about the problems of the citizens and determine in what way they could be helped . ... He had ... found a group of CARDINAL people waiting for him in an open area near the police headquarters . He assumed that they had been told by the security forces that they could ask him for assistance . ...", "Using a car microphone he had then made a speech in which he had emphasised the harmfulness of terrorism . He had assured the people that the ORG would compensate all the damage they had suffered .", "All the people had asked for was for their damage to be repaired . He had sent CARDINAL technical committees to ORG to have the damage suffered by each and every person determined . He had ordered for the shops to be repaired . In order to secure normal living conditions he had given priority to the shops . ...", "The damage assessment which he had ordered only concerned buildings and not the contents of those buildings . Within the limits of the budget of the province he had provided the necessary help . He had subsequently sent the assessments to GPE and had asked the Government for assistance . ... ”", "In the proceedings before the ORG , the applicants submitted a “ Report on Determination of Damaged Buildings ” , which had been given to the ORG by the ORG public prosecutor . The third section of this report lists CARDINAL owners of CARDINAL private homes and/or stables and the extent of damage sustained by these properties ( the preceding sections of the report concern commercial premises and public buildings ) . According to this section of the report , the houses of PERSON ( spelled PERSON ) , Nadir Doman ( spelled PERSON ) and PERSON were destroyed , the house and stable of PERSON were destroyed , and the house of PERSON sustained medium damage .", "In the proceedings before the ORG the applicants , apart from PERSON , also submitted experts ' reports relating to the inspections carried out at their request by a judge of ORG and an independent expert . These inspections were aimed at establishing that the roof and walls of their houses had burned down and collapsed , that their possessions inside the houses had burned , as well as at the identification of the remains .", "On DATE , and again on DATE , the ORG submitted the documents of this damage assessment procedure “ in relation to the properties of PERSON ” .", "Since DATE , serious confrontations have occurred in the south - east of GPE between the security forces and members of the ORG ( ORG of Kurdistan ) . This confrontation has claimed the lives of CARDINAL of civilians and members of the security forces .", "CARDINAL principal decrees relating to the south - eastern region have been made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - eastern GPE , including ORG . Under LAW b ) and ( d ) of the LAW , all private and public security forces and ORG are at the disposal of the Regional Governor .", "The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of ORG , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW", "“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim an indemnity from the ORG for damage suffered by them without justification . ”", "According to the applicants , this Article grants impunity to the governors and reinforces the powers of the regional governor to order the permanent or temporary evacuation of villages , to impose residence restrictions and to enforce the transfer of people to other areas . Damage caused in the context of the fight against terrorism would be “ with justification ” and therefore immune from suit .", "Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides as follows :", "“ All acts or decisions of the authorities are subject to judicial review ...", "The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”", "This provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose liability is of an absolute , objective nature , based on the theory of “ social risk ” . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .", "Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .", "The Criminal Code makes it a criminal offence :", "– to make an unlawful search of an individual 's home ( Articles CARDINAL and CARDINAL ) ;", "– to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or in case human life is endangered aggravated arson ( Article CARDINAL ) ;", "– to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; or", "– to damage another 's property intentionally ( Articles CARDINAL et seq . ) .", "For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution ( LAW . Complaints may be made in writing or orally . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .", "If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of the Military Code . In these circumstances proceedings may be initiated by the ( non - military ) persons concerned before the competent authority under LAW , or before the suspected persons ' hierarchical superior ( Articles CARDINAL and CARDINAL of Law CARDINAL on the LAW and the Procedure of Military Courts ) .", "DATE . Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated by the civil courts pursuant to LAW and compensation for non - pecuniary or moral damage awarded under LAW . Damage caused by terrorist violence may be compensated out of ORG .", "In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG security prosecutors and courts established throughout GPE .", "The public prosecutor is also deprived of jurisdiction with regard to offences allegedly committed by members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of LOC ( see paragraph DATE above ) shall be subject , in respect of acts performed in the course of their duties , to the Law of DATE on the prosecution of civil servants . The Law of DATE has been replaced by another law in the meantime . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision declining jurisdiction and transfer the file to ORG . These councils are made up of civil servants , chaired by the Governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case ." ]

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[ "The applicants , PERSON , PERSON and PERSON , are NORP nationals , born in DATE , DATE and DATE respectively , and they live in GPE . They are represented before the Court by PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE , ORG and Highways ( PERSON ) , a state body responsible , inter alia , for motorway construction , expropriated CARDINAL plots of land belonging to the applicants in GPE . A committee of experts assessed the value of these plots of land and this amount was paid to them when the expropriation took place .", "On DATE , following the applicants’ request for increased compensation , ORG awarded them an additional compensation of MONEY ( TRL ) plus an interest at the statutory rate of PERCENT per annum .", "On DATE ORG upheld the decision of the first - instance court . The due amount , which was MONEY ( TRL ) including the interest , was paid to the applicants on DATE .", "Under PERSON no . CARDINAL of DATE the rate of interest on overdue ORG debts was set at PERCENT per annum . As of DATE the statutory rate of interest was increased to PERCENT . The statutory rate of interest was set at the compound interest rate , namely PERCENT as of DATE .", "A description of further relevant domestic law may be found in the Aka v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI , § § CARDINAL - CARDINAL ; ORG v. GPE , judgment of DATE , Reports CARDINAL-IV , § § CARDINAL - CARDINAL ." ]

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[ "The CARDINAL applicants are Mr PERSON , a NORP and NORP national born in DATE , PERSON , a NORP national born in DATE , and their children , PERSON , a NORP and NORP national born in DATE , and ORG , a NORP and NORP national born in DATE . They live in GPE ( GPE ) and were represented before the ORG by Mr PERSON and PERSON NORP PERSON , CARDINAL lawyers practising in GPE .", "The applicants belong to a NORP community which is strongly attached to the Bible and reject the attendance of private or ORG schools for religious reasons . The applicant parents find that school education does not suit their beliefs since sex education is taught , mythical creatures such as witches and dwarfs appear in fairy tales during school lessons , and physical and psychological violence among pupils at school is on the increase .", "They educate their children at home in accordance with the syllabus and materials of the “ ORG ” , an institution based in PERSON which is not recognised as a private school by the ORG . The institution specialises in assisting devout NORP parents in educating their children at home . The school ’s syllabus contains both books and materials which are used by ORG or private schools and materials specially prepared to support the education of religious beliefs . Teaching by parents is supervised by staff trained by ORG . The teaching is supplemented by occasional gatherings of parents , children and staff members .", "The applicant parents applied for their children to be exempted from compulsory primary school attendance and for permission to educate them at home . The third and fourth applicants reached the age for compulsory school attendance in DATE and DATE respectively . At present , they do not attend a private or ORG school .", "On DATE ORG ( PERSON ) rejected the application pursuant to section CARDINAL(CARDINAL ) , in conjunction with section CARDINAL(CARDINAL ) , of GPE ( PERSON ) . ORG ( ORG ) dismissed an objection by the applicants on DATE .", "On DATE ORG dismissed a request by the applicants for exemption from compulsory primary - school attendance . The court noted that LAW granted the parents both freedom of religion and the right to educate their children with regard to religious and philosophical convictions , which also included the negative aspect of keeping their children away from convictions which would be harmful in their opinion . That freedom , however , was restricted by the ORG ’s obligation to provide education and tuition . Hence compulsory schooling was not a matter for the GPE discretion . The applicant GPE wish to let their children grow up in a “ protected area ” at home without outside interference could not take priority over compulsory school attendance . Even if the children could be sufficiently educated at home , the ORG ’s obligation to provide education under LAW would not be met if the children had no contact with other children . Attending a primary school , with children from all backgrounds , would enable the children both to gain their first experiences of society and to acquire social skills . Neither would be possible if the parents were authorised to educate the children at home , in particular because the applicant parents had openly stated that they wished to avoid their children having regular contact with other children . The court noted that the ORG ’s obligation to educate would also further the children ’s interests and served the protection of their personal rights . Because of their young age , the applicant children were unable to foresee the consequences of their GPE decision to opt for home education . Therefore , they could hardly be expected to make an autonomous decision for themselves . Moreover , the applicant GPE right to educate their children would not be undermined by compulsory school attendance as the parents could educate their children before and after school , as well as at DATE . They were also free to send their children to a denominational school , which would possibly be more sensitive as to sex education than a ORG school , although the court questioned whether the issue of sex education would be of any relevance in a primary school ’s syllabus .", "On DATE the Baden - ORG dismissed an appeal by the applicants . It found that , even though the applicant GPE right to educate their children included religious education , they were not exclusively entitled under LAW to educate their children . The ORG ’s constitutional obligation to provide the children with an education was on an equal footing with the GPE right . The court stressed that the decisive point was not whether home education was equally as effective as primary school education , but that compulsory school attendance required children from all backgrounds in society to gather together . Parents could not obtain an exemption from compulsory school attendance for their children if they disagreed with the content of particular parts of the syllabus , even if their disagreement was religiously motivated . The applicant parents could not be permitted to keep their children away from school and the influences of other children . Schools represented society , and it was in the children ’s interests to become part of that society . The GPE right to provide education did not go so far as to deprive their children of that experience . Parents could require the ORG to take positive measures in order to prevent their children being ill - treated by other children . The applicant parents had not , however , argued that the school authorities in GPE would fail to do so . Neither had the parents sufficiently argued that the applicant children would be exposed to religious influence which was opposed to their own views . The school ’s obligation of religious neutrality would prevent the applicant children from any indoctrination against their will . In so far as the applicants complained that the school ’s syllabus was too scientific and denied any divine influence on the creation and the history of the world , the court found that freedom of religion did not entail the freedom not to deal with any possible conflicts between science and religion . The “ mythical figures ” such as dwarfs or witches which the applicants considered to represent occultism were characters in fairy tales and children ’s books which were well known to all children . At school , they would be introduced to children as fictional characters . Hence the ORG did not promote superstition through its schools .", "On DATE ORG dismissed an application by the applicants for leave to appeal on points of law .", "On DATE ORG refused to consider a constitutional complaint by the applicants because it had already dealt with the decisive constitutional issues in its settled case - law . It pointed out that the administrative courts’ decisions had neither violated the applicant GPE right to educate their children nor the applicants’ freedom of religion . The balance of interests between the applicants’ rights on the one hand and the ORG ’s obligation to provide school education on the other did not require exemption from compulsory school attendance . ORG stressed that the ORG ’s obligation to provide education did not only concern the acquisition of knowledge , but also the education of responsible citizens to participate in a democratic and pluralistic society . To hold that home education under the ORG ’s supervision was not equally effective for pursuing these aims was at least not erroneous . The acquisition of social skills in dealing with other persons who had different views and in holding an opinion which differed from the views of the majority was only possible through regular contact with society . Everyday experience with other children based on regular school attendance was a more effective means of achieving that aim . ORG found that the interferences with the applicants’ fundamental rights were also proportionate given the general interest of society in avoiding the emergence of parallel societies based on separate philosophical convictions . Moreover , society also had an interest in the integration of minorities . Such integration required not only that minorities with separate religious or philosophical views should not be excluded , but also that they should not exclude themselves . Therefore , the exercise and practising of tolerance in primary schools was an important goal . Lastly , ORG considered that the interference was reasonable as the parents still had the possibility of educating their children themselves outside TIME , and the school system was obliged to be considerate towards dissenting religious beliefs .", "The relevant provisions of LAW are the following :", "“ CARDINAL . Marriage and the family shall enjoy the special protection of the ORG .", "NORP The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The State shall supervise them in the performance of this duty .", "... ”", "“ CARDINAL . The entire school system shall be under the supervision of the ORG .", "Parents and guardians shall have the right to decide whether children should receive religious instruction .", "Religious instruction shall form part of the regular curriculum in ORG schools , with the exception of non - denominational schools . Without prejudice to the ORG ’s right of supervision , religious instruction shall be given in accordance with the tenets of the religious community concerned . Teachers may not be obliged to give religious instruction against their will .", "The right to establish private schools shall be guaranteed . Private schools that serve as alternatives to ORG schools shall require the approval of the ORG and shall be subject to the laws of the Länder . Such approval shall be given where private schools are not inferior to ORG schools in terms of their educational aims , their facilities , or the professional training of their teaching staff , and where segregation of pupils according to the means of their parents will not be encouraged thereby . Approval shall be withheld if the economic and legal position of the teaching staff is not adequately assured .", "... ”", "LAW provides :", "“ School attendance is compulsory . ”", "The relevant provisions of the Baden - Württemberg School Act are the following :", "“ ( CARDINAL ) Compulsory school attendance shall apply to all children and juveniles who are permanently resident ... in GPE .", "...", "( CARDINAL ) Pupils are required to attend a NORP school . The school supervisory authority shall decide on any exemption .", "... ”", "“ ( CARDINAL ) All children and juveniles are obliged to attend schools within the meaning of section CARDINAL(CARDINAL)CARDINAL of this LAW , unless provision is otherwise made for their education and tuition . Alternative tuition instead of primary - school attendance may only be granted in exceptional circumstances by the school supervisory authority .", "... ”" ]

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[ "The applicant is a NORP national born in DATE . At present she resides at GPE , GPE . She is represented before the ORG by Mr PERSON , a lawyer practising at GPE , GPE .", "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant entered GPE on DATE with her husband , a first secretary at ORG in GPE , and their CARDINAL children , born in DATE and DATE . The applicant 's CARDINAL children from a previous marriage , born in DATE and DATE , remained in GPE . The applicant was granted a work permit for DATE as from DATE . On DATE she applied for an extended work permit . She stated , inter alia , that she and her husband did not have a good marriage and that he assaulted her , that she had rented an apartment in GPE , and that she could not return to GPE since she was afraid of her husband 's relatives . In DATE the applicant 's CARDINAL children who had remained in GPE were brought to GPE .", "The applicant remained in GPE until DATE when it appears she returned to GPE in connection with her husband 's end of work at the ORG .", "On DATE ORG ( ORG invandrarverk ) rejected her above application for a work permit . ORG found that she had no connection to GPE and that she had left the country .", "On DATE the applicant , having returned to GPE , applied for a work permit and a residence permit for DATE as from DATE . The investigations made by ORG disclosed that she and her husband , together with the CARDINAL children , had returned to GPE in DATE and that they had intended to divorce . However , her husband died before the divorce became final . The applicant stated that she had returned to GPE in DATE in order to pay her debts and because she had been employed at a hotel in GPE . She also stated that she stayed in GPE for economical reasons and that she wanted a residence and work permit limited to DATE , after which time she intended to return to GPE .", "On DATE ORG rejected the application and ordered the applicant 's deportation to GPE . ORG found that neither the applicant 's previous stay in GPE – as the wife of a diplomat – nor the alleged threats against her by her husband 's relatives constituted grounds for granting her a residence permit . ORG also took into account that the applicant 's children lived in GPE .", "The applicant appealed to ORG ( Utlänningsnämnden ) . She now stated that she was infected with HIV and that she should be granted a residence permit on humanitarian grounds as the necessary medical care was not available in GPE . She submitted CARDINAL medical certificates issued on DATE and DATE according to which the applicant 's HIV infection had been detected in DATE . She made regular visits to the hospital . It was planned to commence an anti - HIV treatment during DATE . As such treatment was complicated and required strict adherence it was further indicated that treatment could only commence if the applicant was given a long - term permit to reside in GPE .", "On DATE ORG upheld ORG decision . Referring to a decision taken by ORG on DATE ( see below ) , ORG considered that the applicant 's health status did not give reason to grant her a residence permit .", "The applicant made a new application for a residence permit . She submitted a medical certificate issued on DATE , according to which her state of health had deteriorated . As a consequence , the anti - HIV treatment previously envisaged had been initiated . She also submitted a certificate issued on DATE maintaining that a deportation of the applicant would result in the termination of her HIV treatment , the consequences of which would be a faster process towards the AIDS stage and her supposed death .", "By a decision of DATE ORG rejected the application stating , inter alia , that a new application has to be based on circumstances which have not previously been examined in the matter .", "The applicant lodged a new application with ORG on DATE . In addition to what she had previously stated , she now claimed that she lived with GPE , a NORP citizen who had been given a permit to reside in GPE in DATE . He had been suffering from an HIV infection for DATE . Allegedly , they had met in DATE and had been cohabiting since DATE . The applicant claimed that she had not previously referred to this relationship , since she was afraid that it would be held against her . She further stated that she did not intend to bring her children to GPE in case she was granted a residence permit . Her brother , who allegedly had taken over the responsibility for her children , planned to send them to school in GPE .", "On DATE ORG rejected the application . ORG noted , inter alia , that the applicant had not previously referred to her relationship with GPE and considered that there were thus reasons to question the seriousness of the relationship . ORG did not find it obvious that the applicant would have been granted a residence permit on the ground of the alleged relationship , had she applied for it according to the main rule laid down in LAW , LAW ( see below ) . Furthermore , the ORG found that it would not be contrary to requirements of humanity to execute the expulsion decision .", "On DATE , following the ORG 's indication to ORG that it was desirable that the applicant not be expelled to GPE before DATE ( see below ) , ORG stayed the applicant 's deportation . The ORG 's decision is still in force .", "PERSON Relevant domestic law and practice", "The basic provisions concerning the right of aliens to enter and to remain in GPE are laid down in the CARDINAL LAW ( utlänningslagen , CARDINAL ) . The LAW also defines the conditions under which an alien can be expelled from the country , as well as procedures related to the enforcement of decisions under LAW . There are normally CARDINAL instances that deal with matters concerning the right of aliens to enter and remain in GPE ; ORG and ORG . In exceptional cases , the ORG may determine whether or not an alien shall be allowed to remain in GPE following a referral to the Government , by either ORG , of an application for residence permit ( LAW ) .", "LAW , LAW provides that an alien staying in GPE for DATE shall have a residence permit . Such a permit may be issued , inter alia , to an alien who is married to or cohabiting with a person domiciled in GPE or who has been granted a residence permit to settle in GPE . A permit may also be issued to an alien who , for humanitarian reasons , should be allowed to settle in GPE ( LAW , LAW ) . A permit to reside in GPE shall , according to LAW , LAW , have been granted before entering the country . As a principal rule all applications made after the alien has entered the country shall be rejected . This does not apply , however , if , inter alia , the alien on humanitarian grounds should be allowed to settle in GPE .", "With regard to diplomatic officials employed by foreign powers in GPE , together with their families , the LAW only applies to the extent prescribed by the Government ( cf . LAW , LAW ) . It follows from LAW ( utlänningsförordningen , PERSON ) that diplomatic officials and their families are exempted from the requirement to hold a residence permit .", "As regards serious illness , this may in exceptional cases constitute humanitarian reasons for a residence permit on condition that it is a life - threatening illness for which no treatment can be provided in the alien 's home country . Further , care or treatment in GPE should lead to an improvement in the alien 's condition or be life saving . Thus , the alien 's condition should be so serious that he or she would be likely to die or his or her health would deteriorate considerably if he or she was to be sent home . These principles have been expressed and applied by the Government in a number of precedent rulings of CARDINAL DATE concerning medical humanitarian reasons in general and in rulings of CARDINAL DATE and DATE concerning HIV infection as a reason for a residence permit . The ORG also stated that the mere fact that treatment in GPE is of a higher quality than in the alien 's home country does not constitute grounds for granting a residence permit , nor are financial difficulties in getting the appropriate treatment in the receiving country a reason for granting such a permit .", "ORG ) stated in an opinion of DATE , enclosed in the ORG 's decisions of DATE and referred to in the decision of CARDINAL DATE , that the fact that a person is diagnosed with HIV or AIDS should not alone and generally be decisive of the question of humanitarian grounds . Instead , the assessment should be founded on the alien 's general state of health taking serious clinical symptoms into consideration . ORG concluded that it found no reason , in this respect , to make a difference between HIV infection and other diseases with a serious prognosis .", "Further , according to LAW , an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to residence in GPE ( LAW , LAW ) .", "An alien who is to be refused entry or expelled in accordance with a decision that has gained legal force may be granted a residence permit if he or she files a so - called new application based on circumstances which have not previously been examined in the case of refusal of entry or expulsion and if ( i ) the alien is entitled to a residence permit under LAW , LAW , or ( ii ) it would be contrary to requirements of humanity to execute the refusal - of - entry or expulsion decision ( LAW , LAW b ) .", "Also when it comes to enforcing a decision on refusal of entry or expulsion , regard is taken to the risk of 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 ) ." ]

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[ "The applicant , who was born in DATE , is unemployed and lives in ORG .", "The widow of PERSON , PERSON , died on DATE . She left her estate in equal shares to her CARDINAL children , PERSON ( the applicant in the present case ) , and his brother , PERSON , the latter enjoying full possession of the property until division .", "On DATE the applicant lodged an application with the presiding judge of the Illkirch - Graffenstaden District Court ( département of ORG ) for partition of the deceased 's estate . He sought the appointment of a notary ( notaire ) to deal with the partition , specifying that it should not be Mr PERSON , PERSON representative .", "On DATE PERSON was notified of the application . In a letter of DATE PERSON applied to the same ORG for partition of the estate of PERSON , who had died on DATE . He pointed out that all the documents concerning the disposal of his parents ' estate were being held by PERSON and requested that , if Mr PERSON could not be appointed first notary for the purpose of dividing the estate , he be appointed second notary .", "On DATE the court forwarded PERSON application to the applicant 's lawyer , inviting him to submit within DATE his observations on commencing the procedure for partition of the father 's estate . On DATE the applicant 's lawyer informed the court that he did not oppose commencing the procedure for partition or extending it ; he also stated that he maintained his earlier submission regarding the choice of notary to deal with the partition of the estate .", "In an order of CARDINAL DATE the presiding judge of the Illkirch - Graffenstaden ORG granted the application and ordered partition by the court of PERSON and PERSON estate . He instructed the parties to address their claims to PERSON , a notary in GPE , who had been appointed first notary , and to PERSON , a notary in PERSON , who had been appointed second notary . That decision was served on PERSON on DATE and on the applicant on DATE . In the ORG 's submission , the delay in service of the decision on the applicant was due to his failure to inform the court registry of his change of address .", "Mr Deck convened a first meeting of the parties on CARDINAL DATE . All the parties were present or represented at the meeting , a record of which was sent to them on DATE .", "On DATE PERSON sent the parties a draft scheme of partition of the estate and requested their observations .", "On DATE the applicant 's lawyer sent his observations to PERSON .", "On DATE and DATE the applicant enquired of the notary as to progress in the proceedings . He never received a reply .", "On DATE a reminder was sent – in vain – to the presiding judge of the Illkirch - Graffenstaden District Court . A copy was sent to PERSON and Mr PERSON on DATE .", "On DATE the applicant sent a further reminder to the presiding judge of ORG , asking him to contact the CARDINAL notaries with a view to concluding the proceedings .", "The presiding judge of the court drew up an order forwarding the application to the court registry 's temporary LOC in Erstein . On CARDINAL DATE the same reminder was sent to the court registry 's permanent LOC in Erstein . That letter also remained unanswered .", "On DATE the ORG judge sent both notaries the applicant 's letter of DATE and requested them to inform him of any reason why partition of the estate should not proceed and to indicate how they intended to deal with the applicant 's application .", "In a letter of DATE the applicant 's lawyer lodged a complaint with the Chairman of ORG . He asked the chairman to instruct the CARDINAL notaries in question to dispose of the case DATE . He stated that , should they fail to do so , he had been instructed to bring an action for damages in the appropriate court .", "On DATE Mr Deck informed the Chairman of ORG and ORG judge that on DATE he had prepared a draft scheme of partition of the estate and had since been waiting for Mr PERSON 's counter - proposal .", "Mr Deck convened a further meeting of the parties on DATE .", "Following that meeting , the CARDINAL notaries officially drew up the final scheme of division ; in that document the parties undertook to discontinue the proceedings for partition by the court which had commenced with the order of DATE . Having regard to that undertaking , PERSON decided to discontinue the proceedings and , in an order of DATE , ORG judge stayed the proceedings .", "Article CARDINAL of the Civil Code provides :", "“ If a dispute should arise in connection with proceedings referred to a notary , the notary shall draw up a record of matters causing difficulty and of the statements of the parties and forward them to the judge designated to deal with the partition ... ”", "The procedure for partition of an estate applicable in the law of succession in GPE and GPE is a non - contentious procedure governed by the provisions of LAW of DATE . LAW provides : “ Partition by the court shall be effected as prescribed in the present LAW by means of a non - contentious procedure . The right shall be reserved to interested parties to institute contentious proceedings if they wish to obtain a decision on the merits and admissibility of the partition . ” LAW , relating to non - contentious proceedings , provides that a court can rule only where there is no dispute . Lastly , under LAW , “ if difficulties arise during proceedings before the notary and those difficulties are not resolved , the notary shall draw up a record of the matters in dispute and instruct the parties to bring contentious proceedings ” ." ]

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[ "ORG Scheme", "In DATE the Secretary of ORG for ORG introduced the first version of ORG ( “ the first version ” ) . Section CARDINAL of ORG etc . ) Act CARDINAL provided a statutory basis for the scheme and further details were set out in ORG Regulations DATE ( SI CARDINAL ) ( “ the DATE Regulations ” ) and ORG Instructions ( “ IDIs ” ) .", "The first version of the scheme required that in order to marry , persons subject to immigration control had to have either entry clearance expressly granted for the purpose of enabling them to marry in GPE or a Certificate of Approval . The definition of “ persons subject to immigration control ” excluded ORG nationals and persons who had been granted Indefinite Leave to Remain .", "NORP In order to obtain a Certificate of Approval , a person subject to immigration control had to submit an application to the Secretary of ORG for ORG together with an application fee of ORG . If both parties to the proposed marriage were subject to immigration control , each party had to submit an application form and pay the required fee . The IDIs provided that in order to qualify for ORG , an applicant had to have been granted leave to enter or remain in GPE for a period of DATE and he or she had to have DATE of that leave remaining at the time of making the application .", "The first version of the scheme did not apply to persons seeking to marry in accordance with the rites of ORG .", "On DATE Mr Justice PERSON delivered judgment in the case of R ( on the applications of PERSON and Others ) v Secretary of ORG for ORG [ DATE ] EWHC CARDINAL GPE ( Admin ) , in which he considered whether the first version of the scheme interfered with the Articles CARDINAL and CARDINAL rights of those who were subject to immigration control and who were in GPE lawfully .", "He found that it was permissible , according to the ORG 's jurisprudence , to introduce legislation to prevent marriages entered into for the purpose of avoiding immigration control even though this legislation might interfere with the right to marry . Furthermore , the legislative objective relied on by the Government of preventing sham marriages was sufficiently important to justify limiting an LAW right .", "NORP However , in the case of the first version of the scheme , the measures designed to meet the legislative objective were disproportionate as they were not rationally connected to it . First , all religious marriages other than those in ORG required a Certificate despite the fact that the evidence showed that sham marriages predominantly took place in registry offices . The treatment of religious marriages outside ORG was therefore a matter of concern as they were treated like registry office marriages even though evidence indicated that the same precautions which prevented sham marriages taking place in ORG were also present in other religious ceremonies . Secondly , there was no basis for the assumption that all religious marriages outside ORG were automatically to be treated as sham marriages , thus requiring a Certificate , while in contrast all marriages conducted according to the rites of ORG were to be regarded automatically as not being sham marriages and therefore did not require a ORG . Thirdly , the first version of the scheme arbitrarily failed to take into account many factors which might be relevant in considering whether or not a proposed marriage was a sham , such as clear and corroborated evidence that the parties had enjoyed a loving relationship over DATE , during which time they might have had children or bought a house together . It was difficult to understand how the scheme , which ignored factors such as these , could be “ rationally connected ” to the purported legislative aim of avoiding sham marriages . Fourthly , the first version of the scheme was not rationally connected to the legislative objective as it regarded the only relevant factors in determining whether a non - EU national could marry in GPE as his or her immigration status .", "Mr Justice PERSON therefore held that the first version of the scheme was not proportionate and constituted a substantial interference with LAW .", "He also held that this version of the scheme was incompatible with LAW as it was discriminatory on the grounds of religion and nationality . It constituted direct discrimination as it targeted individuals who were , because of their religious convictions or lack of them , unable or unwilling to marry pursuant to the rites of ORG . Meanwhile those who wished to marry in ORG were exempted from the scheme .", "Furthermore , the fact that a fee was levied was also discriminatory as this was not required of those with the same characteristics wishing to marry in ORG religious ceremonies .", "In a separate judgment ( [ DATE ] EWHC CARDINAL ( Admin ) ) , Mr Justice ORG found that in the case of Mr PERSON , at the time an illegal immigrant , the refusal of permission to marry did not constitute an interference with his rights under LAW , as permitting him to marry an ORG national would effectively have permitted him to “ queue jump ” and would have undermined the effectiveness of immigration control .", "NORP The Secretary of ORG accepted Mr Justice PERSON 's findings that the first version of the scheme under section DATE Act was discriminatory and did not seek to challenge this conclusion on appeal . However , he was granted permission to appeal against Mr Justice PERSON 's findings in respect of LAW . Mr PERSON was also granted permission to appeal .", "On DATE ORG delivered judgment in the case of LOC v. PERSON and Others [ DATE ] EWCA Civ CARDINAL . It agreed with Mr Justice PERSON 's finding that the first version of the scheme under section DATE Act was disproportionate and violated Articles CARDINAL and CARDINAL of the Convention . However , it disagreed with the conclusion reached in respect of Mr PERSON . ORG held that the immigration status of Mr PERSON was irrelevant to the genuineness of his proposed marriage , which alone could properly determine whether he should be free to exercise his right to marry . It therefore dismissed the Secretary of ORG 's appeal and allowed that of Mr PERSON . The Secretary of ORG was granted permission to appeal to ORG .", "On DATE ORG handed down its opinion in the case of NORP ( on the application of PERSON and others ) v. Secretary of ORG for ORG [ DATE ] ORG DATE . It dismissed the appeal and ordered that section CARDINAL(CARDINAL)(b ) of the CARDINAL Act should be read as meaning “ has the written permission of the Secretary of ORG to marry in GPE , such permission not to be withheld in the case of a qualified applicant seeking to enter into a marriage which is not one of convenience and the application for , and grant of , such permission not to be subject to conditions which unreasonably inhibit exercise of the applicant 's right under LAW . ”", "Lord PERSON observed that from DATE the ORG had described the right to marry as “ fundamental ” and noted that LAW , in contrast with LAW , conferred a right and not a right to respect for specified areas of personal life .", "Lord PERSON further observed that the scope afforded to national law was not unlimited and it had been emphasised that national laws governing the exercise of the right to marry should never injure or impair the substance of the right . In practice the ORG had been firm in upholding the right to marry , finding in favour of applicants denied the exercise of that right because they were serving prisoners ( ORG v. GPE , no . DATE , Commission decision of DATE , PERSON , p. CARDINAL ) , because of a mandatory delay imposed before entering into a fourth marriage ( PERSON v. GPE , DATE , Series A no . CARDINAL ) , or because CARDINAL applicant was the father - in - law of the other and they could only exercise their right to marry if they obtained a private ORG ( B. and PERSON GPE , no . CARDINAL , DATE ) .", "Lord GPE considered , inter alia , the ORG 's decisions in PERSON v. GPE , no . ORG decision of DATE , GPE CARDINAL p. CARDINAL and PERSON and PERSON v. the GPE ( DATE ) DR CARDINAL-A , p. CARDINAL . He concluded that :", "“ A national authority may properly impose reasonable conditions on the right of a third - country national to marry in order to ascertain whether a proposed marriage is one of convenience and , if it is , to prevent it . This is because LAW exists to protect the right to enter into a genuine marriage , not to grant a right to secure an adventitious advantage by going through a form of marriage for ulterior reasons .", "... ... ...", "[ The authorities ] establish ... that where a third - country national proposes to marry within the jurisdiction the member state may properly check whether the proposed marriage is one of convenience or not and seek information necessary for that purpose . The authorities give no support to the proposition that a significant restriction may be placed on all such marriages , or on a sub - class of such marriages , irrespective of whether they are marriages of convenience or genuine marriages and with no procedure to ascertain whether they are the CARDINAL or the other . ”", "In respect of the first version of the scheme , Lord PERSON held :", "“ Apart from its discriminatory features , which the Secretary of ORG has said she will remove , I do not think section DATE , read alone , is legally objectionable . It is open to a member state , consistently with article CARDINAL , to seek to prevent marriages of convenience . There is nothing in the text of section CARDINAL which authorises or requires the withholding of permission to marry in the case of any marriage which is not a marriage of convenience . Indeed , the section makes no reference to marriages of convenience or sham marriages and gives no hint of the grounds on which permission may be granted or withheld . Section CARDINAL could be operated , consistently with its terms and with article CARDINAL , in a manner which required persons subject to immigration control to give notice of a proposed marriage , enabled an appropriate authority to investigate whether the proposed marriage would be CARDINAL of convenience and provided for the withholding of permission only in cases where it appeared that the proposed marriage would be CARDINAL of convenience .", "Subject to CARDINAL qualification , LAW are similarly , in my opinion , unobjectionable . They provide in some detail in Schedule CARDINAL for the information to be given by an applicant for permission to marry , and considerable detail ( more than is required in the Schedule ) is clearly necessary if enquiry is to be made whether a proposed marriage will be CARDINAL of convenience . My qualification relates to the prescribed fee . It is plain that a fee fixed at a level which a needy applicant can not afford may impair the essence of the right to marry which is in issue . A fee of £ MONEY ( £ MONEY for a couple both subject to immigration control ) could be expected to have that effect .", "ORG , promulgated ( it is understood ) without express parliamentary sanction , provide for the denial of permission to marry ( save on compassionate grounds , relatively rarely allowed in practice ) to all those who are in the country without leave , or whose grant of leave to enter or remain in the GPE on the occasion in question did not total DATE , or who did not have DATE remaining at the time of making the application for permission . The vice of the scheme is that none of these conditions , although of course relevant to immigration status , has any relevance to the genuineness of a proposed marriage , which is the only relevant criterion for deciding whether permission should be given to an applicant who is qualified under national law to enter into a valid marriage . It may be that persons falling within the categories specified in the ORG are more likely to enter into a marriage of convenience than others , and that may be a very material consideration when the genuineness of a proposed marriage is investigated . But the section CARDINAL scheme does not provide for or envisage any investigation at all , because ( as has been explained in the evidence ) such investigation is too expensive and administratively burdensome . Thus , subject to the discretionary compassionate exception , the scheme imposes a blanket prohibition on exercise of the right to marry by all in the specified categories , irrespective of whether their proposed marriages are marriages of convenience or whether they are not . This is a disproportionate interference with exercise of the right to marry . ”", "Baroness PERSON of GPE considered that :", "“ It is not disputed that the Government would be free to deny any immigration advantage to a party to a marriage which had been entered into solely for the purpose of obtaining that advantage . ( Indeed , the respondents argue that that is already the case , as the claimed advantages apply only to real relationships . ) But the scheme in issue here does something very different . The legislation enables the ORG to prohibit in advance a great many marriages irrespective of whether or not they are genuine , irrespective of whether or not there is any immigration advantage to be obtained thereby , and without any right of appeal other than judicial review . This strikes at the very heart of the right to marry which is guaranteed to everyone of full age by LAW . ”", "She found that there were many objections to the scheme , other than its being discriminatory . In particular , she noted that :", "“ It covers anyone who is subject to immigration control , that is , anyone who is not an ORG national and requires leave to enter or remain in GPE ( s. CARDINAL(CARDINAL ) ) . This covers all non - nationals unless they have already acquired the ' right of abode ' . All of these people are required to give notice to the registrar in specified registration districts , irrespective of where they live or intend to get married ; and both parties to the intended marriage must attend in person to deliver their notice ( s. CARDINAL(CARDINAL ) ) . This is all irrespective of how long they have been living here , how close their relationship and how small or non - existent the immigration advantage there might be .", "When they get to the registrar , there are CARDINAL categories of people who need go no further . The first is a person who has been given entry clearance expressly for the purpose of enabling him to marry in GPE ( s CARDINAL(CARDINAL)(a ) ) . The second is a person who falls within a class specified in regulations ( s CARDINAL(CARDINAL)(c ) ) . Regulation CARDINAL of ORG Regulations DATE ( SI CARDINAL ) specifies a person ' who is settled in GPE within the meaning of paragraph CARDINAL of ORG . This basically means someone who is ordinarily resident here , not in breach of the immigration laws , and without any restriction on the period for which he may remain . A very large number of people who have been here lawfully for a long time will still not be ' settled ' here in this sense .", "Everyone subject to immigration control who does not fall within those CARDINAL exceptions can not marry without the written permission of the Secretary of ORG to marry in GPE ( s. CARDINAL(CARDINAL)(b ) ) . Application must be made in writing accompanied by the fee prescribed in LAW , which is now £ CARDINAL . If both parties require permission , therefore , they must pay £ MONEY to apply for it . There is no power in the regulations to waive or reduce the fee no matter how meritorious the case . This is on top of the much more modest fees for the actual marriage , of £ MONEY for each notice to marry , £ CARDINAL for the ceremony , and £ MONEY for the marriage certificate , making a total of £ MONEY . It must be a positive disincentive to couples whose desire to marry is deep and sincere and has nothing to do with their immigration status or where they intend to live once married .", "None of these applicants will be able to find out from the LAW or the LAW how good their chances are of getting permission . On the face of it , the ORG can adopt whatever policy it chooses without even laying it before ORG for scrutiny . The current policy is contained in the published “ ORG \" , chapter CARDINAL , section CARDINAL . This does not depend upon any reasonable assessment , either of the immigration advantage which the marriage might bring , or of the genuineness of the relationship . It depends upon a rule of thumb : permission will be granted if each person needing it has been granted leave to enter or remain in the GPE for DATE ( calculated from when his present stay in the GPE first began ) and has DATE of this remaining when he makes the application . Even within this category , permission will be refused if there is good reason to believe that either of the parties lacks capacity to marry in LANGUAGE law . Outside this category , permission will be refused unless “ there are exceptionally compassionate features ” making it unreasonable to expect them to travel , either to marry abroad or to apply for entry clearance from abroad . The examples given are pregnancy or some other condition making the person unfit to travel abroad . They do not include features suggesting that the marriage is genuine , because that is not the point .", "This policy automatically excludes all asylum seekers because they do not have leave to enter . The policy states that they should not normally be permitted to marry until after their claims have been determined . But if an initial decision on an application or an appeal has been outstanding for DATE ( and we understand that time starts running afresh once an appeal has been lodged ) , or if they can not be expected to travel abroad for compelling compassionate reasons , the permission may be granted . It is , of course , extremely unlikely that any genuine asylum seeker will be in a position to travel back to the country from which he has fled to escape a wellfounded fear of persecution , nor would it be consistent with this country 's obligations under LAW to compel him to do so .", "It is an indication of how over - inclusive the statutory scheme is that the great majority of applications for permission are granted . From DATE , when section CARDINAL came into force , until DATE , when PERSON handed down his first judgment , CARDINAL applications for permission to marry or enter a civil partnership were dealt with . CARDINAL were granted , CARDINAL of these on exceptional or compassionate grounds , the rest because they met the leave criteria . CARDINAL were refused . CARDINAL were withdrawn or discontinued . We are told that this was quite deliberate . The Government simply decided to subject a large number of proposed marriages to the deterrent effect of scrutiny and to prohibit all those in the class which they thought most likely to contain the suspect unions . Making a serious attempt to distinguish between the “ sham ” and the genuine was considered too difficult and too expensive . ”", "Following the judgments of Mr Justice PERSON on DATE , the first version of the scheme was amended . Under the new procedure ( “ the second version ” ) , applicants who had insufficient leave to enter or remain at the time of applying for a Certificate of Approval could be asked to submit further information in support of their applications to enable ORG to satisfy itself that the proposed marriage or civil partnership was genuine .", "Further amendments followed ORG judgment on DATE ( “ the third version ” ) . Under the third version of the scheme , applications from individuals who did not have valid leave to enter or remain , who had until this point been refused a Certificate of Approval unless there were exceptional compassionate circumstances , were to be treated in line with the guidance for those who had limited but insufficient leave to qualify for a Certificate .", "With effect from DATE the ORG suspended the requirement to pay any fee . On DATE a scheme for repaying fees to applicants who met a financial hardship test at the time of the application met with Ministerial approval .", "On DATE a proposal for a draft ORG etc . ) Act DATE ( Remedial ) Order DATE was laid before ORG . If the draft order is approved by both ORG , it is expected to come into force early in DATE . Once in force , it will effectively abolish ORG scheme .", "The circumstances of the applicants", "The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE .", "The first applicant has both NORP and NORP nationality . She is married to the second applicant , who is a NORP national of PERSON ethnic origin . The third applicant is the child of the first and second applicant and the fourth applicant is the first applicant 's child from a previous relationship . Both the third and fourth applicants have NORP and NORP nationality .", "The applicants are practising NORP .", "The first and second applicants care for the third and fourth applicants and also for the first applicant 's disabled parents . The first applicant receives Invalid Carer 's Allowance , Income Support , ORG . The second applicant is not entitled to work .", "The factual background to the application", "The second applicant arrived in GPE in DATE and claimed asylum in DATE . In DATE he was granted Discretionary Leave to Remain , which runs until DATE .", "The second applicant met the first applicant in DATE and they began living together in DATE . In DATE the second applicant proposed to the first applicant and she accepted .", "On DATE the first and second applicants applied for ORG and requested to be exempted from the ORG CARDINAL fee . They explained in detail that the first applicant survived on Invalid Carer 's Allowance and Income Support and that the second applicant was destitute as a result of not being permitted to work . This explanation was attached to the application and a supporting letter from their Member of ORG was sent .", "On DATE their application was returned to them with a letter stating the following :", "“ If an applicant does not pay the specified fee , his or her application is invalid . The specified fee has not been paid in connection with your attempted application which you made by post on DATE . We do not consider that an exception to the requirement to pay the fee applies in this case , therefore your application is invalid and we are returning your documents . ”", "In DATE a group of the applicants ' friends contributed towards the fee required to make an application for a Certificate of Approval . The applicants subsequently made an application with the donated funds . On receiving the application form , a case worker asked the first and second applicants to submit further information about their relationship . They submitted CARDINAL sworn affidavits . The case worker was satisfied with the information provided and the applicants were issued with a Certificate of Approval on DATE . They married on DATE .", "Section CARDINAL ( CARDINAL ) of ORG etc . ) Act DATE ( “ the CARDINAL Act ” ) imposed certain requirements before a person subject to immigration control was able to marry , otherwise than in accordance with the rites of ORG under Part II of LAW .", "Section CARDINAL ( CARDINAL ) of LAW stipulated , as relevant , that :", "“ ( CARDINAL ) The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied , by the provision of specified evidence , that the party subject to immigration control—", "( a ) has an entry clearance granted expressly for the purpose of enabling him to marry in GPE ,", "( b ) has the written permission of the Secretary of ORG to marry in the GPE .... ”", "Section CARDINAL ( CARDINAL ) ( a ) of the CARDINAL Act provided that a person “ subject to immigration control ” was a person who was not a European Economic Area ( ORG ) national and who required leave to enter or remain in GPE .", "Section CARDINAL of the CARDINAL Act provided the following in relation to GPE :", "“ ( CARDINAL ) This section applies to a marriage—", "( a ) which is intended to be solemnised in GPE , and", "( b ) a party to which is subject to immigration control .", "( CARDINAL ) In relation to a marriage to which this section applies , the marriage notices—", "( a ) shall be given only to a prescribed registrar , and", "( b ) shall , in prescribed cases , be given by both parties together in person at a prescribed register office .", "( CARDINAL ) The prescribed registrar shall not act under LAW ) Order DATE ( ORG ( N.I.CARDINAL ) ) ( marriage notice book , list of intended marriages and marriage schedule ) unless he is satisfied , by the provision of specified evidence , that the party subject to immigration control—", "( a ) has an entry clearance granted expressly for the purpose of enabling him to marry in GPE ,", "( b ) has the written permission of the Secretary of ORG to marry in GPE , or ... ”", "Permission from the Secretary of ORG was granted by the issuing of a Certificate of Approval pursuant to the procedure provided for in ORG Regulations DATE ( SI CARDINAL ) ( “ the CARDINAL Regulations ” ) .", "Regulation CARDINAL of the DATE Regulations provided that :", "“ ( CARDINAL ) A person seeking the permission of the Secretary of ORG to marry in GPE under section CARDINAL(CARDINAL)(b ) , CARDINAL(CARDINAL)(b ) or CARDINAL ) of the CARDINAL Act shall—", "( a ) make an application in writing ; and", "( b ) pay a fee on the submission of the application in accordance with regulation CARDINAL .", "( CARDINAL ) The information set out in Schedule CARDINAL is to be contained in or provided with the application . ”", "Schedule CARDINAL indicated that both parties to an intended marriage should state their name , date of birth , name at birth ( if different ) , nationality , contact details , passport or travel document numbers , ORG reference numbers ( where applicable ) , details of their current immigration status ( if applicable ) , the date on which their current leave was granted and the date on which that leave was to expire ( where applicable ) , and details of any previous marriages and divorces .", "The fee on application to the Secretary of ORG for ORG was initially fixed at GBP CARDINAL . It was increased to GBP CARDINAL on DATE . There was no statutory right of appeal for an applicant who alleged that they could not afford to pay the fee . If the fee was not paid , the application for a ORG was invalid and there was no discretion for the fee to be waived . The refusal of an application for a ORG did not constitute an immigration decision and there was no statutory right of appeal against it .", "In DATE ORG issued instructions on authority to marry . ORG Instructions ( “ IDIs ” ) stated that under LAW persons subject to immigration control who wished to marry in GPE had to first meet an additional qualifying condition before they could give notice of the marriage : they were required to have an entry clearance or be settled in GPE or have a ORG . LAW , section CARDINAL , para CARDINAL , of the IDIs ( “ Criteria for Granting a Certificate of Approval ” ) provided that :", "“ In order to qualify for a certificate of approval , a person must have valid leave to enter or remain in the GPE as follows . He must have been granted leave to enter or remain in the GPE totalling DATE on this occasion ; and have DATE of this leave remaining at the time of making the application . ”", "The IDIs stated that a Certificate of Approval would be refused if there was good reason to believe that there was a legal impediment to the marriage , as on grounds of age , consanguinity or an existing marriage . A Certificate of Approval would normally be refused to a person not qualified to be granted CARDINAL , but a ORG could be granted on compassionate grounds .", "The Certificate of Approval scheme was amended following the judgment of Mr Justice PERSON . ORG guidance stated that under the new procedures ORG could write to persons who had insufficient leave to enter or remain at the time of applying for a Certificate of Approval , asking that they submit further information in support of their application to enable ORG to be satisfied that the proposed marriage or civil partnership was genuine . Any such letter would ask for information about :", "when , where and how the applicant and their fiancé(e)/proposed civil partner met ;", "when the couple decided to marry or enter into a civil partnership ;", "where the couple intended to live if permitted to marry or to enter into a civil partnership in GPE ;", "arrangements for any religious ceremony , including the nature of the ceremony , the person conducting it and relevant contact details , arrangements for any reception or celebration , including details of the location , proof of booking and relevant contact ;", "the applicant 's relationship with his or her fiancé(e)/proposed civil partner if the couple was not living together ( e.g. letters and photographs as evidence of the relationship ) ;", "the applicant 's life with his or her fiancé(e)/proposed civil partner if the couple was living together , including the address(es ) , how long they had lived together and documentary evidence in the form of correspondence addressed to both parties at the same address from utilities , government bodies , local authorities , financial institutions etc . ;", "any children from the applicant and his or her fiancé(e)/proposed civil partner 's present or previous relationships , including where they lived , the length of time any of them had lived with the applicant and his or her fiancé(e)/proposed civil partner , the names of their natural parents and details of who supported them ;", "contact telephone numbers for the applicant and his or her fiancé(e)/proposed civil partner in case an officer wishes to contact either of you ;", "and any additional information which the applicant would like to submit , and/or any additional supporting evidence or documentation which might help the application .", "Following ORG judgment , the Government further amended the scheme . ORG guidance indicated that applications from individuals who did not have valid leave to enter or remain ( illegal entrants , persons who had been refused leave to enter but granted temporary admission or temporary admission pending the outcome of an application for leave to enter , and those who had overstayed their leave to remain ) , who had previously been refused unless there were exceptional compassionate circumstances for granting a ORG , would be treated in line with the guidance for those who had limited , but insufficient , leave to qualify for a Certificate .", "In DATE the FAC and ORG for ORG brought judicial review proceedings in respect of the failure of ORG to comply with that part of ORG judgment which related to the level of the fees being charged . TIME the ruling the ORG agreed to suspend the fees with effect from DATE .", "On DATE a scheme for the repayment of the full fee to applicants who met a financial hardship test by making ex gratia payments received ministerial approval . In order to meet the test for real financial hardship , applicants would have to provide evidence that the payment of the fee led the couple to experience real financial hardship at the time of the application . The test would take into account whether both parties to the proposed marriage were on benefits , including asylum support , or whether they had income below a certain threshold .", "In DATE the Government notified the Court of its intention to abolish ORG . On DATE ORG etc . ) Act DATE ( Remedial ) Order DATE was laid before ORG and it is anticipated that it will come into force early in DATE ." ]

[ "12", "14", "9" ]

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[ "The applicant , Mr ORG , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms S. Bezbradica , an advocate practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is the owner of a house in GPE . During DATE and DATE his neighbours , GPE and GPE , built a house and a garage on the adjacent plot of land , which in his opinion destabilized the foundations of his house .", "On DATE the applicant instituted administrative proceedings before the first instance administrative authority competent for building inspection ( hereafter - “ FAC ” ) arguing that : ( CARDINAL ) his neighbours had significantly departed from building regulations for row houses in that : ( a ) their house was not leaning against his , there was a gap between the walls , ( b ) they had not isolated the foundations of the QUANTITY houses , and ( c ) their house was QUANTITY lower than his ; and ( CARDINAL ) that they had departed from the building permit granted to them on DATE by building an underground garage .", "It appears that the case - file was lost .", "Therefore , on DATE the applicant re - submitted his request .", "As FAC did not render a decision on his request within the statutory time - limit of DATE , on DATE the applicant lodged an appeal for failure to respond ( žalba PERSON šutnje administracije ) with the competent Ministry .", "On DATE ORG issued a decision ordering the applicant ’s neighbours to make the necessary modifications in order to comply with the building permit or , otherwise , to apply for a new building permit . This decision was not served on the applicant .", "Given that the ORG also failed to decide on the applicant ’s appeal for failure to respond within the statutory time - limit of DATE , on DATE the applicant brought an action for failure to respond ( tužba zbog šutnje administracije ) against ORG in ORG ( Upravni sud Republike Hrvatske ) .", "On DATE the ORG issued a decision discontinuing the appellate proceedings because it found that ORG had in the meantime decided on the applicant ’s request of DATE .", "On DATE , the applicant modified his administrative action of CARDINAL DATE and challenged the ORG ’s decision of DATE .", "On DATE ORG adopted a judgment whereby it quashed the ORG ’s decision of DATE . It held that since ORG decision of DATE had not been served on the applicant , the ORG could not have dismissed his appeal of DATE .", "Since , following the judgment of ORG , the ORG failed to issue a new decision on his appeal of DATE within the statutory time - limit of DATE , on DATE the applicant requested ORG to decide on his appeal , that is to say , act as a court of full jurisdiction and issue its own decision replacing that of the Ministry , in accordance with the relevant provisions of LAW .", "On DATE the ORG issued a decision ordering FAC to issue a new decision on the applicant ’s request of DATE and serve it on him .", "On DATE ORG issued a decision ordering the applicant ’s neighbours to demolish the garage and certain parts of the house erected on their land which had been built outside the limits of the building permit . The decision was served on the applicant who did not appeal against it . According to LAW , that decision was immediately enforceable .", "On DATE ORG dismissed the applicant ’s request of DATE , finding that the Ministry had in the meantime ( on DATE ) issued the decision sought . On DATE the applicant lodged a constitutional complaint against ORG decision , which ORG ( Ustavni sud PERSON ) dismissed on DATE .", "On DATE the competent ORG issued a decision dismissing an appeal by the applicant ’s neighbours and upheld the first - instance decision , which thereby became definitive ( konačna ) . Shortly afterwards , the applicant ’s neighbours brought an action in the ORG contesting the ORG ’s decision .", "On DATE ORG issued a judgment dismissing the action of the applicant ’s neighbours . The first - instance decision of CARDINAL October CARDINAL thereby became final ( pravomoćna ) . ORG judgment also was served on the applicant as a third ( interested ) party ( zainteresirana strana ) .", "It appears that to date no measures have been taken to enforce the first - instance decision of DATE .", "On DATE , following ORG decision of DATE , the applicant filed a petition for reopening of the above administrative proceedings , arguing that he had not been heard by the building inspector in those proceedings .", "On DATE FAC declared inadmissible the applicant ’s petition for reopening . On DATE the applicant appealed against that decision to ORG .", "On DATE the Ministry allowed the applicant ’s appeal of CARDINAL DATE , quashed the first instance decision of DATE and remitted the case to FAC .", "On DATE FAC again declared the applicant ’s petition inadmissible .", "Following an appeal by the applicant , on DATE the ORG issued a decision whereby it first quashed the first - instance decision for lack of jurisdiction and then , having found that it was the competent authority to decide on the applicant ’s petition for reopening , itself declared that petition inadmissible . The Ministry held that the applicant was not a party to the administrative proceedings and was thus not entitled to lodge a petition for their reopening .", "On DATE the applicant brought an action in the ORG challenging the ORG ’s decision . It would appear that the proceedings are currently pending before that court .", "On DATE the applicant lodged a request for the protection of the right to a hearing within a reasonable time under LAW with ORG ( PERSON ) , complaining about the length of the proceedings concerning his petition to reopen the administrative proceedings .", "On DATE ORG declared the applicant ’s request inadmissible on the ground that , under the case - law of ORG , the guarantees of LAW , including the right to a hearing within a reasonable time , did not apply to proceedings concerning a petition for reopening of a case .", "On DATE the applicant lodged a constitutional complaint against ORG decision .", "It would appear that the proceedings are currently pending before ORG .", "On DATE the applicant lodged his first application ( no . CARDINAL ) with the ORG . He complained under LAW about the unfairness of the administrative proceedings concerning the alleged illegal construction . He also complained under LAW claiming that ORG decision of DATE and ORG decision of CARDINAL DATE deprived him of an effective remedy for the protection of his rights . On DATE the ORG , sitting in a ORG of CARDINAL Judges , adopted a decision declaring that application inadmissible as manifestly ill - founded .", "The relevant provisions of LAW ( Zakon o općem upravnom postupku , ORG of ORG CARDINAL/CARDINAL ( consolidated text ) , and ORG no . CARDINAL/CARDINAL ) provide as follows :", "Section CARDINAL defines a party to administrative proceedings as a person at whose request the proceedings have been instituted , a person against whom the proceedings have been brought or any other person who is entitled to participate in the proceedings in order to protect his or her rights or interests .", "Section CARDINAL ) provides that the authority in charge of administrative enforcement shall , of its own motion or at the request of a party , issue an enforcement order . Such an order shall declare that the decision to be enforced has become enforceable and determine the method of the enforcement .", "Section CARDINAL ) provides , inter alia , that the authority in charge of administrative enforcement shall issue an enforcement order with a view to enforcing a decision rendered of its own motion without delay and at the latest within DATE after such a decision became enforceable .", "The other relevant provisions of LAW , in particular those governing an appeal for failure to respond ( žalba zbog šutnje administracije ) , are set out in ORG and PERSON GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE .", "In its judgment no . ORG of CARDINAL DATE ORG held that the owner of a neighbouring plot of land who filed a report with ORG had a status of a party in the inspection proceedings within the meaning of section CARDINAL of LAW and could , for example , lodge an appeal for failure to respond in accordance with LAW .", "The relevant provisions of LAW ( Zakon o upravnim sporovima , ORG of ORG no . CARDINAL/CARDINAL , and ORG nos . CARDINAL , DATE and DATE ) governing an action for failure to respond , tužba zbog šutnje administracije ) are set out in ORG and PERSON , cited above .", "The relevant provisions of the same LAW governing an “ action against an unlawful act ” ( tužba za zaštitu od nezakonite radnje ) are set out in GPE v. GPE ( dec . ) , no . CARDINAL , DATE .", "In its judgment no . Us-CARDINAL/CARDINAL of CARDINAL DATE ORG held that “ a failure to respond ” ( šutnja administracije ) existed in the administrative enforcement proceedings when the competent administrative authority , following an application by the party , did not issue an enforcement order within the statutory time - limit .", "In its judgment PERSON of CARDINAL DATE ORG held that a party could rely on the relevant provisions of LAW governing an action for failure to respond , in case the competent administrative authority did not issue an enforcement order within the statutory time - limit .", "In its judgments nos . Us-CARDINAL/CARDINAL of CARDINAL DATE and Us-CARDINAL/CARDINAL of CARDINAL DATE ORG held that failure of the administrative authorities to carry out their own enforcement order constituted an “ unlawful factual act ” within the meaning of LAW against which the aggrieved party could bring an “ action against an unlawful act ” . In its decision no . Gž-CARDINAL/CARDINAL of DATE ORG reached the same conclusion .", "LAW ( Zakon o gradnji , ORG nos . CARDINAL , ORG and CARDINAL ) , which was in force at the material time , provided as follows :", "Section CARDINAL provided that when a building inspector found a breach of the relevant regulations , it could issue a decision even without hearing the parties .", "Section CARDINAL(CARDINAL ) provided that an appeal lodged against a decision of a building inspector did not postpone its enforcement .", "Section CARDINAL(CARDINAL ) provided that a decision of a building inspector could not be enforced DATE after it had become definitive .", "The relevant provisions of LAW ( Zakon o sudovima , ORG nos . DATE , CARDINAL/CARDINAL and CARDINAL ) , which entered into force on DATE , governing a request for the protection of the right to a hearing within a reasonable time are set out in Pavić v. GPE , no . ORG , § DATE , DATE ." ]

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[ "The applicant was born in DATE and he lives in GPE . He is the eldest of CARDINAL children . He was in voluntary care with the social services ' department of the local authority for CARDINAL periods during his childhood : DATE , CARDINAL DATE , DATE , CARDINAL DATE and DATE .", "During these periods his mother was receiving periodic psychiatric treatment and his father had some difficulty coping with the children on his own . The applicant had contact with both parents while in care : there was contact DATE and weekend during DATE of care , there were visits over DATE and then DATE visits by DATE ( and longest ) period , and DATE visits continued during DATE of care . It is not known how much parental contact there was during the first and third periods of care .", "NORP By letter dated DATE , the applicant requested access to his social service records . By letters dated CARDINAL and DATE , he requested specific information including whether he had ever been on the “ risk register ” , whether his father had been investigated or convicted of crimes against children and about the responsibility of the local authority for abuse he had suffered as a child .", "On DATE a social worker discussed with the applicant the access procedures and the information sought . On DATE that social worker went through background information gleaned from the file with the applicant ( concerning the dates and places of care ) and provided him with hand - written notes of that information .", "On CARDINAL DATE the same social worker provided the applicant with further information gleaned from the file in the form of typed notes ( covering DATE ) . She also discussed certain areas of particular concern to the applicant including the impact of childhood neglect and ill - treatment which he remembered at the hands of his father , his feelings about having had a violent father and his vague suspicions of having been abused while in local authority institutional care . They also discussed the allegations of ill - treatment of the applicant by his father which had been made by neighbours via the school to the local authority in DATE , and the consequent investigation and decisions made by the local authority . The social worker also provided the applicant with various documents , including letters from his father to the social services DATE , social service progress reports dated DATE and DATE , medical treatment permission forms signed by his father DATE and DATE , child care agreements with his father from DATE to DATE , a medical report card dated DATE and a copy of his birth certificate . He was also given a report of a ORG dated DATE ( which was prepared for a case conference to be held on DATE ) together with notes of that case conference . The latter report provided further detail of the allegations of ill - treatment in DATE , of the consequent investigation and of the recommendations of ORG .", "NORP By letter dated DATE , the social worker wrote to the applicant with more typed information taken from his file . That note dealt with the period DATE – September CARDINAL . It included brief references to the applicant returning home in DATE , to the family 's move in DATE and to a supervision order made in respect of the applicant by a juvenile court in DATE . She also gave the applicant a typed note recording the information which had been given orally to him during their last meeting , which note included further details of DATE .", "NORP By letter dated DATE to the local authority the applicant 's legal representatives noted that the applicant had been provided with summary information and certain documents . They requested that he be allowed full access to his file . The local authority responded by letter dated DATE , pointing out that his social service records had been created prior to the entry into force of ORG DATE .", "Further to the applicant 's queries , the local authority confirmed by letter dated DATE that there were no detailed records relating to him after DATE except an indication of juvenile offending . It also noted that there was little mention of ill - treatment , but it enclosed the above - mentioned report of ORG dated DATE . That letter accepted that the attitude expressed in that report would not have been acceptable in DATE given the more developed understanding of child abuse matters .", "In his letter of DATE , the applicant stated that memories of abuse suffered by him began to return shortly after DATE and that he was now in full possession of his memories , was being counselled and had consulted solicitors about a negligence action against the local authority . He requested specific information about the allegations of ill - treatment made in DATE and about his being abused by his father for DATE thereafter . The local authority responded by letter dated DATE , referring the applicant to the information already provided to him in DATE and to the differences between social work standards and procedures in DATE and in DATE .", "ORG in ORG ( DATE ) held that ORG , in refusing access to the relevant records , had correctly balanced the public interest in maintaining an efficient child - care system with the individual 's interest in obtaining access to records , and that it was not necessary for the court to review the records in question in order to so decide .", "In DATE a binding circular , PERSON , was issued setting out the principles to be applied by local authorities in permitting access to their care records . Access to records was , in principle , to be permitted subject to necessary exceptions ( such as the preservation of third party confidences and the protection of sources ) .", "The Access to Personal Files Act DATE and ORG Regulations DATE both entered into force on DATE . The LAW and the LAW gave subjects the statutory right to know what was recorded about them in manually maintained records held by the local authority for the performance of social service functions . A number of exceptions were retained for the preservation of third party confidences and the protection of sources , but there was a right of review ( and , subsequently , of judicial review ) of a refusal of access . LAW did not , however , apply to records created before DATE .", "Circular GPE was issued to provide guidance to the local authorities on the implementation of LAW and LAW . The previous circular ( LAC(CARDINAL)CARDINAL ) was cancelled and LAW to the new circular pointed out that , while there was no obligation to furnish pre - DATE information , “ there is likely to be significant advantage in authorities making available as much information as possible . This could lead to greater clarity and understanding of an individual 's background . ”", "On DATE LAW DATE ( “ the DATE LAW ) came into force and repealed LAW , LAW and circular GPE . It provided a statutory right of access for a “ data subject ” to information held about him in care records and other personal files ( both manual and electronic ) regardless of the date when the information was recorded , together with a right of appeal to the domestic courts or to ORG Commissioner if access were refused , or where a contributor or a relevant third party had not consented ." ]

[ "8" ]

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[ "The applicant is the owner of a flat in GPE , which he had let to PERSON The lease had been extended until DATE by the operation of Law no . CARDINAL of DATE .", "In a writ served on the tenant on DATE , the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate .", "By a decision of CARDINAL DATE , which was made enforceable on DATE , the ORG upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .", "On DATE , DATE , CARDINAL May , DATE , DATE , DATE and CARDINAL DATE , the bailiff unsuccessfully attempted to evict the tenant without police assistance .", "Pursuant to Law no . CARDINAL of DATE , the enforcement proceedings were suspended until DATE .", "On DATE the applicant made a statutory declaration that he urgently required the premises as accommodation for himself .", "On DATE and CARDINAL DATE , the bailiff made CARDINAL other unsuccessful attempts to evict the tenant .", "On DATE the applicant was granted police assistance in evicting his tenant ; on DATE , however , the latter claimed to be ill and no officially appointed doctor was available to check her allegations . The bailiff arranged to make his next visit to the premises on DATE . However , on this occasion the applicant was not granted the police assistance and the tenant refused to vacate the LOC .", "Pursuant to law - decree no . CARDINAL of DATE and to Laws no . CARDINAL of DATE and no . CARDINAL of CARDINAL DATE the enforcement of the order for possession was suspended until DATE .", "In DATE , after a number of unsuccessful attempts by the bailiff , the applicant recovered possession of his flat .", "The relevant domestic law is described in the judgment ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V." ]

[ "6" ]

[ "6-1" ]

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[ "14", "P1" ]

[ "P1-1" ]

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[ "The applicant was born in DATE and is currently staying in the GPE .", "On DATE the applicant arrived in the GPE , where on DATE he applied for asylum ( verblijfsvergunning asiel voor bepaalde tijd ) at the asylum application centre ( aanmeldcentrum ) at GPE . A first interview with an official of ORG of ORG took place that DATE , in order to establish the applicant 's identity , nationality and travel route . DATE he was interviewed regarding the reasons for his request for asylum . The applicant submitted the following .", "After completing his DATE military service on DATE , the applicant was again called up during a general mobilisation in DATE . He served as a soldier in an anti - tank unit and fought in the war against GPE .", "Although the war ended on DATE , demobilisation did not commence until considerably later because the NORP authorities feared further military incursions by the NORP . In DATE a meeting was held with the applicant 's battalion , consisting of CARDINAL men , in order to evaluate its performance in the war . According to the applicant , it was customary for such meetings to be held , and they allowed the higher army echelons to cover up their mistakes by putting the blame for an unsuccessful campaign on the soldiers . During this meeting the commanders said that the soldiers had not fought well . The applicant spoke up and said that this was because the commanders had insisted that hungry , thirsty and tired soldiers should continue fighting at the front , which had resulted in casualties . He said that his unit should have been replaced or strengthened . Other soldiers present at the meeting also voiced criticism , saying , for example , that there had not been enough weapons . When the applicant had spoken out , the other soldiers had vociferously supported him and an argument had ensued .", "For some time after the meeting , the applicant had the feeling that the army authorities were keeping an eye on him ; for example , he thought he was being followed whenever he visited other units , and he was denied permission to go into town . On DATE , by which time he thought everything had been forgotten , he was summoned to the battalion 's headquarters . There , he was informed that he had incited the soldiers . He was made to hand over his weapons and was detained in an underground cell for DATE . He was neither interviewed , nor charged , nor brought before a military tribunal .", "On DATE he was put into a jeep , with a driver and a guard who were armed . He was neither handcuffed nor bound . During the drive , they happened upon a military vehicle that had had an accident . Both the driver and the guard got out of the car to see if they could lend assistance . The applicant , left alone , seized the opportunity and escaped through the back of the car .", "The applicant made his way unhindered to GPE , avoiding official border posts . An acquaintance of his in GPE brought him into contact with a travel agent , who arranged for a passport and air tickets . Accompanied by the travel agent , the applicant flew to GPE via GPE and another , unspecified NORP country . From GPE they took a train to GPE in the GPE . There , the travel agent told the applicant they had reached their destination . He asked him to hand back the passport and to report to a police station .", "On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie ) , applying an accelerated procedure , rejected the applicant 's request for asylum . His failure to submit any document capable of establishing his identity , nationality or travel itinerary was held to affect the plausibility of his statements . Moreover , the Deputy Minister considered that the applicant 's account of his alleged escape lacked credibility : it was hard to believe that someone who had been kept in detention for DATE should have been transported unrestrained and been able to get away without being stopped by his guards , both of whom were alleged to have left him alone in the back of an open jeep in order to look at a traffic accident . The applicant was further held not to have substantiated his alleged detention . The comments he had allegedly made at the meeting in DATE were not of such a confrontational nature that he had well - founded reasons to fear persecution on that account , the more so bearing in mind that his comments did not particularly deviate from the opinion of the superiors to whom he claimed to have addressed them . Moreover , the applicant himself had stated that he was not the only soldier to have voiced criticism , yet neither had it been alleged , nor had it appeared , that any of those other soldiers had experienced problems as a result of their comments . The applicant had also not explained why he had not been arrested until DATE and had been left undisturbed in the meantime .", "The applicant lodged an appeal with ORG ( arrondissementsrechtbank ) of GPE , sitting in GPE , and also applied to the President of that court for a provisional measure staying his expulsion . Pending the outcome of these proceedings , the applicant submitted a written statement by a certain Mr PERSON , to the effect that PERSON PERSON 's son had been executed in GPE in DATE after he had been staying with his mother for DATE without having obtained prior permission from his army commanders . He also submitted an identity card , a military identity card , a driving licence and a marriage certificate . On DATE the President of ORG rejected the application for a provisional measure and , finding that further investigation could not reasonably contribute to the clarification of the case , also dismissed the appeal . The President considered that the applicant 's alleged desertion and his resulting fear of disproportionate punishment had not been established in a sufficiently plausible manner . It was unlikely that the army should still have been mobilised at the time of the applicant 's escape in DATE , given that the war had ended in DATE and that the army , by the applicant 's own account , had evaluated its performance in the war at a meeting in DATE . The applicant 's claim that he stood accused of incitement was based on pure supposition . In view of the ease with which the applicant had allegedly managed to escape , the President further found it unlikely that the ( army ) authorities wished to harm him . Thus , finding the applicant 's account neither credible nor plausible , the President deemed it unnecessary to hear Mr PERSON as a witness .", "The applicant lodged a further appeal ( hoger beroep ) with ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) , arguing , inter alia , that further investigation of the case , and in particular of the question whether the NORP army had been demobilised at the time of his desertion , was called for and feasible . If it turned out that the army had still been mobilised in DATE , the reasoning adopted by the President of ORG as to the lack of credibility and plausibility of the applicant 's account would no longer stand up . The applicant also applied for a provisional measure allowing him to await the outcome of his further appeal in the GPE . He withdrew this application on DATE in view of the relevant case - law of ORG .", "On DATE ORG dismissed the further appeal . It held that the applicant 's appeal to ORG had not been dismissed for reasons relating solely to the mobilisation , but also for reasons relating to the applicant 's account of his arrest and escape . Given the conclusions reached by the President of ORG to the effect that the Deputy Minister had not been wrong in describing the applicant 's account as not credible , he ( the President ) had been entitled to decide not to hear evidence from Mr PERSON as a witness . The fact that it was not in dispute that the applicant had served in the army did not affect this ruling .", "Under the terms of LAW of LAW ( Vreemdelingenwet DATE ) , in force at the relevant time , an alien is eligible for a residence permit for the purposes of asylum if , inter alia ,", "( a ) he or she is a refugee within the meaning of the LAW relating to LAW DATE ; or", "( b ) he or she has established that he or she has well - founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .", "To help in the assessment of asylum applications and the establishment of whether it is safe to return unsuccessful asylum - seekers , the Minister for ORG regularly publishes official country reports ( ambtsberichten ) on the situation in asylum - seekers ' countries of origin . In drawing up these reports , the Minister uses published sources and reports by non - governmental organisations as well as reports by GPE diplomatic missions .", "NORP The decision of DATE rejecting the applicant 's request for asylum was based on information contained in the country report of DATE . That report described GPE 's conflict with GPE and the hostilities that arose from it . The first series of hostilities ended in DATE . Fierce fighting broke out again in DATE , and there was small - scale fighting in DATE and DATE . Full - scale war broke out again on DATE . On DATE the CARDINAL countries signed an agreement which has ended hostilities for the time being . Since then , the security situation has been good but the humanitarian situation has been worrying .", "The country report made clear that merely coming from GPE does not constitute legal grounds for being admitted to the GPE . An asylum - seeker has to show convincingly that his or her personal circumstances – viewed objectively – justify a fear of persecution as defined in refugee law or constitute grounds for the issuing of a residence permit for the purposes of asylum because he or she would be subjected to treatment prohibited by LAW if returned to the country of origin .", "NORP The country report of DATE largely confirmed the findings of the previous report , although it also stated that deserters belonged to the categories of persons who , from a human rights point of view , ran a greater risk than others of encountering adverse treatment . With regard to penalties for desertion , it stated that the maximum penalty for desertion during general mobilisation was life imprisonment or , in extreme cases , death . According to the country report , these penalties and the question whether they applied in time of war or in peacetime were , however , largely theoretical . In practice , deserters were not tried in court , not even a military court . They were sentenced by their superiors and put to work in mining or road building for periods varying from DATE , until a new batch of recruits received basic training . Those sentenced were then sent to join the new batch and , subsequently , into active service . There were reports that in DATE , during the war with GPE , deserters who had been caught in the act were executed .", "NORP The most recent country report , that of DATE , contained the same information as the aforementioned report as far as penalties for desertion were concerned . It added that it seemed likely that the severity of the punishment imposed on deserters depended on the specific circumstances , including whether the desertion took place in time of war or in peacetime , whether the authorities were aware of the desertion at the time , and the particular circumstances of the individual concerned .", "The same report further stated that there had been indications of ill - treatment of deserters by ( military ) police and security forces , and of disciplinary punishments , such as extended exposure to high temperatures or the binding of hands , being meted out to deserters in the army and resulting in permanent injury in some cases .", "Given that there was a system of registration for conscripts , it was assumed that deserters were also registered and therefore known to the authorities .", "NORP In support of his application , the applicant provided the Court with information relating to the demobilisation of the army and the treatment of deserters .", "According to a report published on DATE in the DATE news magazine ORG , the NORP army was at that time yet to be demobilised .", "A letter to the applicant 's lawyer dated DATE from LOC specialist of the GPE branch of ORG stated that it was usual for the NORP army to get together after an offensive and to conduct an evaluation of its performance . It was also not unusual for a considerable time to pass between openly expressed criticism and arrest , or for deserters to be punished by their superiors without trial . ORG of the NORP army had commenced in DATE .", "The applicant also submitted written statements by CARDINAL NORP nationals currently living in exile in GPE and the GPE respectively . The first statement , dated DATE , related how a relative of the author had been executed in DATE following this relative 's voluntary return to the army after attending his brother 's funeral without permission from his commanders . According to the second statement , made on DATE by CARDINAL of the founders and senior members of ORG and former governor of a provincial capital , conscripts and soldiers who left the army were “ hunted down and killed ” .", "In its DATE Report DATE , covering events from DATE , ORG noted with regard to GPE , inter alia :", "“ The penalty for evading conscription or protesting against military service is DATE imprisonment , but in practice those caught are tortured and arbitrarily detained for DATE with hard labour , before being forced back into the army . Methods of torture reported included being left for TIME in the hot sun , bound hand and foot , in some cases resulting in permanent injury . ”", "An ORG press release of CARDINAL DATE expressed that organisation 's concern about reported plans by the NORP authorities forcibly to return CARDINAL NORP to GPE . These men had deserted from the NORP army at different times during DATE and fled from GPE to GPE and then to GPE , hoping to reach a country of asylum in LOC . The press release stated that CARDINAL of NORP had fled the country in DATE , to GPE initially , after deserting from national service or to escape conscription . Prisoners held in military detention also included a number of persons who had expressed opinions critical of the government or the military authorities . The press release contained the following passage :", "“ [ I]f these CARDINAL NORP detainees are forcibly returned to GPE , they are at high risk of being arrested on arrival , and detained incommunicado and in secret without charge or trial for an indefinite period . They could face torture – which is routinely used by the military in GPE – and CARDINAL of them who had been previously detained in GPE for political reasons could face extrajudicial execution . ”", "Amnesty International 's Report DATE , covering events from DATE , stated :", "“ Torture continued to be used ... as a standard military punishment . ORG deserters ... were tortured in military custody . They were beaten , tied hand and foot in painful positions and left in the sun for lengthy periods ( ' the helicopter ' torture method ) , and suspended by ropes from the ceiling . ”", "ORG DATE , covering events from DATE , depicted an identical situation .", "On DATE ORG published a report entitled “ GPE : ' You Have No Right to Ask ' – Government Resists Scrutiny on Human Rights ” . It described , inter alia , the forcible deportation back to GPE of CARDINAL NORP who had landed on the island of GPE in DATE , mainly as a result of shipwrecks or sea rescues , by the NORP authorities in DATE and DATE . According to the report , the deportees", "“ ... were all immediately detained on arrival in GPE and sent to the nearby PERSON military detention centre . ... As ORG learned later , women , children and those over the conscription age limit of DATE were released after DATE in PERSON but the rest of the GPE deportees – mostly army deserters – were kept in incommunicado detention and tortured . ”", "On DATE ORG released ORG in GPE . It stated , inter alia :", "“ The Government continued to authorise the use of deadly force against anyone resisting or attempting to flee during military searches for deserters ...", "During DATE , police severely mistreated and beat army deserters ... Security forces detained deserters ... and subjected them to various disciplinary actions that included prolonged sun exposure in temperatures of up to QUANTITY or the binding of the hands , elbows and feet for extended periods . ...", "The Government deployed military police throughout the country using roadblocks , street sweeps , and house - to - house searches to find deserters ... ”" ]

[ "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was apprehended by the police in GPE under the international arrest warrant issued by ORG .", "On DATE the Pechersky District Court of GPE ordered the applicant ’s detention for DATE pending an official request for his extradition to GPE and in order to effect his transfer to the law enforcement authorities of GPE .", "On DATE the applicant appealed against the decision of DATE . He contended that the first instance court had not taken into account his state of health and the fact that he , together with his wife and CARDINAL minor children , had been residing in GPE for a long period of time , and that the court had not examined the applicant ’s submissions concerning his political persecution in GPE .", "On DATE ORG rejected the applicant ’s appeal against the decision of DATE . It held that the first instance court had duly taken into account the applicant ’s state of health . However , it took the view that his family situation was irrelevant for the case and that the applicant ’s allegations of political persecution in GPE were unsubstantiated .", "On DATE the Deputy Prosecutor of GPE submitted an official request to ORG of GPE , seeking the applicant ’s extradition to GPE .", "NORP By letter of DATE the Deputy Prosecutor General of GPE informed the NORP Deputy Prosecutor General that the applicant would not be extradited on the ground that , under NORP law , the charges against the applicant did not carry imprisonment .", "On DATE the applicant was released from detention .", "Relevant domestic law and practice is summarised in the case of PERSON ( GPE v. GPE , CARDINAL , § § DATE and DATE , DATE ) ." ]

[ "5" ]

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[ "ORG Mr PERSON and Mr PERSON , who were born respectively in DATE and DATE at ORG ( ORG ) and who currently live in GPE , have a heavy prison sentence pending against them following their conviction by ORG on DATE in a judgment that was upheld by ORG on DATE ( see paragraphs CARDINAL and CARDINAL below ) .", "ORG On DATE CARDINAL police officers ( carabinieri ) were murdered at a barracks in LOC . Some clothes , firearms and ammunition were found to be missing .", "ORG In TIME CARDINAL to CARDINAL February the ORG police arrested PERSON who was driving a car with false registration plates . He was found to be unlawfully in possession of firearms . The police concluded on the basis of an initial inspection that one of the CARDINAL pistols that they had seized had been used to commit the murders and the other had been stolen from the barracks .", "G.V. was taken to the police station and gave the name of a lawyer , who was not able to come immediately . In the latter ’s absence , GPE agreed to an informal interview in the course of which he stated that he belonged to a revolutionary group . Shortly afterwards he asked to see his father , in whose presence he made other revelations concerning the circumstances of the raid , which had been directed against the NORP ORG rather than the QUANTITY police officers . While his father was out of hearing , GPE told the investigators that the applicants and CARDINAL other persons , PERSON and PERSON , had taken part in the crime . All CARDINAL were friends of his ; PERSON was in fact his cousin . PERSON also gave the police information as to the whereabouts of the articles stolen during the attack .", "ORG When his lawyer arrived at TIME on DATE , GPE confirmed that he had committed the murders , but retracted his statements concerning the involvement of the other persons . A little later he repeated in writing his first statements indicating what part each of those concerned had played .", "ORG The applicants and the other suspects were arrested at their homes DATE on DATE . They were taken to the FAC barracks and were immediately questioned by the carabinieri . At first they were questioned on their own and then , after TIME , a lawyer appointed by the authorities to act for them was present . They all admitted having taken part in the attack , but gave accounts that were inconsistent with each other and with that given by GPE", "ORG According to the admissions register of PERSON prison , when the applicants arrived at the prison they appeared to be in a state of shock and had bruises and abrasions . PERSON told the staff of the admissions office that he had slipped and injured himself .", "ORG In the course of TIME CARDINAL DATE , the PERSON public prosecutor questioned all the suspects . PERSON reaffirmed that he had committed the double murder , but again retracted his statements concerning the involvement of the applicants , maintaining that he had made them under duress . Mr PERSON and Mr PERSON also retracted their confessions . Mr PERSON likewise referred to pressure brought to bear on him by the investigators and ill - treatment at their hands . Mr PERSON claimed that the police officers had persuaded him that it was in his interests to make a confession because , in view of the damming accusations made by GPE , he would be sentenced to life imprisonment if he did not . At a later stage he maintained that he too had suffered ill - treatment .", "Expert medical examinations established that the applicants had slight injuries to their bodies .", "ORG After a period during which he refused all communication with the investigators and his family , in DATE PERSON wrote a letter to the investigating judge asking to be questioned . During his interview with the judge , which was attended by a lawyer appointed by the authorities to act for him , he indicated that he intended to make new revelations in writing .", "On DATE he was found hanged from a high window in the prison hospital with a handkerchief in his mouth . PERSON had only one arm , but the authorities concluded that he had committed suicide .", "ORG On DATE the applicants , who had not had an opportunity to examine or have examined GPE in the proceedings prior to his death , were committed for trial with the CARDINAL other accused .", "ORG On DATE ORG quashed the committal and ordered further inquiries to establish whether the ORG allegations about the pressure to which they had been subjected could be substantiated , to identify the presumed perpetrators of the ill - treatment and to verify whether the statements to the police officers were credible and voluntary .", "The prosecuting authority lodged an appeal on points of law , which was dismissed in DATE .", "ORG As the maximum period for pre - trial detention had expired , the applicants were released on DATE .", "On DATE , the new investigation having reached its conclusion , the CARDINAL accused were committed for trial . The investigating judge found that there was no case to answer in the matter of the alleged ill - treatment as the material facts of the offence had not been established ( perché il fatto non sussiste ) . He took the view that the injuries noted by the medical reports had been caused by blows received by the accused in the struggles which occurred during their transfer from the barracks . Indeed some of the police officers who had been present at the time had similar injuries . The state of shock observed on their arrival at the prison was attributed to a lack of sleep and the lengthy interrogation . As regards the description by the accused of the LOC where the alleged ill - treatment had been carried out and the fact that the accused had named the CARDINAL officers who were said to have perpetrated the violence , the judge concluded that they could have seen the LOC in question on a previous occasion and that the CARDINAL officers were well known in the small town of ORG .", "ORG The proceedings in ORG began on DATE and ended on DATE with the acquittal , on the basis of the benefit of the doubt , of the applicants and PERSON was convicted and sentenced to life imprisonment .", "ORG The prosecuting authority and the accused appealed . Mr PERSON and Mr PERSON , in particular , sought their unqualified acquittal .", "ORG On DATE ORG , basing its decision essentially on the statements made to the police officers , also found the applicants and PERSON guilty of the double murder .", "ORG On DATE ORG , to which GPE , PERSON , Mr PERSON and Mr PERSON had appealed , on a date that has not been specified , quashed the judgment of CARDINAL DATE and remitted the case of ORG and PERSON to ORG of Appeal and that of the applicants to ORG .", "ORG noted that even if the pressure described by the appellants had not been as serious as they claimed , the contested confessions had been made without a judicial officer being present . The PERSON judges had not intervened in the first stage of the inquiry except to carry out acts of a purely formal nature . For TIME the carabinieri had thus been completely free to conduct their inquiries as they wished .", "ORG On DATE the Juvenile Section of ORG acquitted the applicants on the basis of the benefit of the doubt .", "The prosecuting authority and the applicants again appealed to ORG .", "ORG On DATE ORG quashed the decision of the court below on the ground that it had regarded as established the facts found in the judgment of DATE , whereas those facts ought to have been the subject of a new investigation . The case was remitted to ORG .", "At the same time ORG set aside the judgment of ORG of CARDINAL DATE convicting PERSON and sentencing him to life imprisonment . The case was remitted to ORG for a decision as to whether there were any extenuating circumstances .", "ORG On DATE the Juvenile Section of the Caltanisetta Court of Appeal quashed the judgment of ORG of DATE in so far as it concerned the applicants and transmitted the file to the GPE public prosecutor ’s office . Allowing the objection raised by counsel for PERSON , the appeal court applied ORG judgment of DATE ( no . CARDINAL ) which had declared LAW of DATE ( no . CARDINAL ) unconstitutional . That provision had removed from the jurisdiction of the juvenile court ( tribunale per I minorenni ) criminal proceedings brought against minors accused of committing a criminal offence in concert with adults .", "ORG On DATE ORG , presided over by Judge PERSON , accorded PERSON the benefit of general extenuating circumstances . It took the view that the facts had been definitively established by ORG , it referred to the \" co - perpetrators \" of the double crime and to the \" precise statement by GPE that PERSON together with ORG had been responsible for physically carrying out the murders \" .", "ORG On DATE ORG , which was trying the case at first instance , acquitted the applicants on the basis of the benefit of the doubt . The applicants and the prosecuting authority appealed .", "ORG By an order of DATE ORG raised a question as to the proper jurisdiction and transferred the file to ORG . It considered that , in declaring the nullity of the judgment of ORG of DATE - applying retrospectively the decision of ORG had breached LAW , which was in force at the time and which prohibited raising at a retrial on remittal grounds of nullity allegedly arising out of the conduct of earlier stages in the proceedings or the investigation .", "ORG On DATE ORG remitted the case to ORG , having confirmed the validity of the judgment of DATE .", "ORG On DATE that court , presided over by PERSON , who had also presided over ORG in PERSON ’s trial ( see paragraph CARDINAL above ) , sentenced Mr PERSON to DATE and CARDINAL months’ imprisonment and a fine of MONEY . PERSON was sentenced to DATE . In its judgment the court noted that lawyers had been continuously present throughout the interrogations , which ruled out any possibility of pressure of such a nature as to undermine the credibility of the confessions . Admittedly CARDINAL of the lawyers appointed by the authorities to act for the applicants maintained that he had found PERSON PERSON chained to a radiator , but according to the same person he had been released before the beginning of the interrogation .", "Referring to LAW para . CARDINAL of LAW , which provides that statements made by a person accused of the same offence may be relied on only if they are corroborated by other items of evidence which confirm their credibility , the appeal court based its decision , inter alia , on the following considerations :", "- the fact that the accused had all made statements implicating each other ;", "- the fact that it would have taken CARDINAL people to carry out such an attack ;", "- the credence that could be attached to the statements of GPE concerning his responsibility , which was confirmed by other physical evidence ;", "- a number of items of evidence establishing that those statements were voluntary ;", "- the fact that the accused were friends ;", "- the fact that the applicants had helped PERSON to buy or transport the oxygen bottles for the oxyacetylene torch used to cut open the barracks door ;", "- the fact that on TIME of CARDINAL DATE ORG father had been seen by the carabinieri , who were following him , in the applicants’ company , near Mr PERSON ’s home , and on that occasion the latter had appeared worried , while Mr PERSON had sought to reassure him ;", "- the discovery at Mr PERSON ’s home of a box of matches of a brand that was no longer manufactured , the matches being the same type as those used to light the oxyacetylene torch and found in a garage rented by GPE The matches had been stolen by GPE from a tobacconist in DATE ;", "- finally the lack of a convincing alibi for any of the accused .", "ORG On DATE the prosecuting authority and the applicants appealed to ORG complaining , inter alia , of the inadequacy of the appeal court ’s statement of grounds .", "ORG In a judgment of CARDINAL DATE , deposited in the registry on DATE , ORG dismissed the ORG appeal , finding that the appeal court ’s assessment of GPE ’s statements implicating them , their confessions and the corroborating evidence was not open to criticism in terms of the statement of grounds .", "ORG An application of DATE seeking a pardon from the President of the Republic was rejected on DATE that has not been specified ." ]

[ "6" ]

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[ "6" ]

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

[ "6-3-d" ]

[ "The applicant [ Mr Angelos PERSON ] is a NORP national . He was born in DATE and lives in GPE . He was represented before ORG ( “ the Commission ” ) by Mr PERSON , of ORG .", "The facts , as submitted by the parties , may be summarised as follows .", "As part of a judicial investigation into a case of international drug trafficking , ORG no . CARDINAL of FAC was informed that the PERSON , a vessel flying the NORP flag , was on the LOC sailing towards LOC with a cargo of cocaine . After obtaining verbal authorisation from the NORP embassy in GPE , in accordance with LAW and CARDINAL of LAW in LAW , adopted in GPE on DATE , the investigating judge , in a decision CARDINAL DATE , ordered that the vessel , which was on the high seas of LOC QUANTITY ( QUANTITY ) from GPE , be boarded and searched .", "On DATE the crew of a NORP vessel , the Petrel I , belonging to the customs inspection department boarded the PERSON . After an exchange of fire with several members of the crew who had barricaded themselves into the engine room , the CARDINAL - member crew surrendered and the vessel set sail again on DATE . The members of the crew were nationals of various GPE , and included CARDINAL NORP and the applicant , the vessel ’s captain , who is a NORP national . The applicant was transferred to the vessel belonging to the NORP customs police , where he was placed under police supervision .", "After searching the PERSON , the customs police officers seized CARDINAL packets of cocaine weighing QUANTITY in all . The narcotic powder was attached to wheels , which were on rails , so that the drug could be very quickly thrown into the sea .", "On DATE ORG ordered reporting restrictions in respect of the judicial investigation for DATE .", "On DATE ORG made an order in which it noted firstly that the PERSON", "According to the Government , the arrested members of the crew , including the applicant , had been told on DATE that they were being detained and had been informed of their rights . On DATE they had been notified of the decision of the investigating judge ordering them to be detained . A record of those measures appears in the Petrel I ’s log . They had also been invited to name persons whom they wished to be informed of their detention . The applicant had named a PERSON The embassies of the States of which the detained crew members were nationals had also been informed of their detention . Additionally , from DATE the applicant had had a lawyer in GPE and in GPE . In that connection , his lawyer had sent him a letter in LANGUAGE on DATE informing him that his wife had instructed lawyers in GPE to defend him .", "The applicant maintained that the decision of CARDINAL DATE had not been sent to him until DATE , as could be seen from the investigating judge ’s decision of that date . Moreover , he had had no communication – even by radio telephone – with the investigating judge during his period of detention on the Petrel I. The applicant claimed that it was not until he had arrived at the port of GPE that he was informed in the manner prescribed by law of his rights as a person in detention . He submitted that the brief entries in the Petrel I ’s log were of no evidential value and that in any event , as a NORP national with no interpreter or lawyer , he could not be expected to understand , even vaguely , the content of the decision of CARDINAL DATE .", "The PERSON and the PERSON I arrived in GPE ( ORG ) at TIME on DATE . At the port of GPE , a judicial commission took charge of the prisoners . Assisted by an interpreter , the commission informed the applicant of ORG decision ordering him to be detained pending investigation . He was informed of his rights in the presence of a lawyer and an LANGUAGE - to - NORP interpreter . On DATE the members of the crew who had been placed in detention were taken to GPE by air . On DATE they were brought before the relevant judicial authority and questioned in the presence of their lawyers , with interpreters on hand .", "On DATE the applicant lodged an application for the proceedings to be set aside and for his release , alleging that there had been a violation of his fundamental rights . In a decision of CARDINAL DATE ORG dismissed his application . An appeal lodged by the applicant was dismissed by ORG in a judgment of DATE .", "The applicant lodged an appeal ( recurso de amparo ) with ORG . He complained that he had been illegally detained , that he had not been brought promptly before a judicial authority and that he had not been informed immediately and in a way that was understandable to him of his rights or of the reasons for his detention . He relied on LAW , CARDINAL and CARDINAL of LAW ( right to liberty and security ) . In a judgment of DATE ORG dismissed his appeal . It declared , by way of a preliminary observation , that , notwithstanding that the applicant had been detained while on the high seas , the enforcement of a judicial decision remained subject to LAW and , in particular , to the duty to respect fundamental rights and freedoms , this being in accordance with the case - law established by ORG in its judgments in the cases of PERSON and PERSON v. GPE and GPE ( judgment of DATE , Series A no . CARDINAL ) and PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI ) .", "Dealing first with the complaint based on LAW , ORG noted that the boarding and searching of the NORP vessel had been authorised by ORG ( after that court had been informed that the vessel in question was being used for cocaine trafficking ) , that CARDINAL NORP nationals had been on board and that the search had been authorised by GPE . In that connection , ORG reiterated that section CARDINAL(CARDINAL ) of LAW of DATE gave the NORP courts jurisdiction over acts committed by NORP or aliens outside NORP territory if those acts constituted an offence like ( as in the case in point ) drug trafficking .", "The court added that enforcement of the measure in question aboard a foreign sea - going merchant vessel was potentially contrary to the rules of international law , since the vessel was subject to the jurisdiction of the flag ORG . Accordingly , any exception to that principle of international law had to be based on a rule of law , which , in this case , was provided by LAW and CARDINAL taken together with LAW and CARDINAL of LAW in LAW , an instrument to which GPE and GPE were Contracting Parties .", "Under those provisions , any ORG , having obtained authorisation from the flag ORG , could take appropriate measures in respect of a vessel being used for drug trafficking and in respect of the members of the crew . The court found that the measure taken by ORG had complied with all the requirements of the convention in question . Consequently , the applicant had been detained in accordance with the law and the manner of his detention had complied with the applicable international rules .", "With regard to the complaint based on LAW , ORG pointed out that any detention lasting CARDINAL - two hours had to be authorised by the relevant judicial authority . In the instant case ORG had decided in a reasoned order of CARDINAL DATE that the applicant should be held in detention pending investigation . A judicial authority had therefore reviewed the applicant ’s deprivation of liberty at DATE of custody prescribed by LAW .", "On DATE the applicant was released on bail .", "On DATE the Audiencia Nacional convicted the applicant of drug trafficking and sentenced him to DATE imprisonment and a fine of MONEY .", "“ CARDINAL . Everyone has the right to liberty and security of person . No one may be deprived of his liberty other than in accordance with the provisions of this LAW and only in the cases and in the manner prescribed by law .", "Pre - trial detention shall last no longer than is strictly necessary to carry out investigations to ascertain the facts . A person detained shall , in any event , be released or placed at the disposal of the judicial authority within a maximum period of TIME .", "Any person arrested shall be informed immediately , and in a way that is understandable to him , of his rights and the reasons for his arrest , and shall not be forced to make a statement . He shall be guaranteed the assistance of a lawyer in police and judicial proceedings , on the terms laid down by law .", "A habeas corpus procedure shall be provided for by law so that anyone who has been illegally arrested can be immediately brought before a judicial authority . The maximum duration of pre - trial detention shall also be determined by law . ”", "“ CARDINAL . Toda persona tiene derecho a la libertad y a la seguridad . ORG puede ser privado de su libertad , sino con la observancia PERSON en este artículo y en los casos y en la forma previstos en la ley .", "La detención preventiva no podrá durar más del tiempo estrictamente necesario para la realización de las averiguaciones tendentes PERSON esclarecimiento de los hechos , y , en todo caso , en el plazo máximo de setenta y dos horas , el detenido deberá ser puesto en libertad o a disposición de la autoridad judicial .", "Toda persona detenida debe ser informada de forma inmediata , y de modo que le sea comprensible , de sus derechos y de las razones de su detención , no pudiendo ser LOC a declarar . Se garantiza la asistencia de abogado al detenido en las diligencias policiales y judiciales , en los términos que la ley establezca .", "La ley regulará un procedimiento de habeas corpus para producir la inmediata puesta a disposición judicial de toda persona detenida ilegalmente . ORG , por ley se determinará el plazo máximo PERSON prisión provisional . ”", "“ CARDINAL . The Parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea , in conformity with the international law of the sea .", "…", "A ORG which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law and flying the flag or displaying marks of registry of another ORG is engaged in illicit traffic may so notify the flag ORG , request confirmation of registry and , if confirmed , request authorisation from the flag ORG to take appropriate measures in regard to that vessel .", "NORP In accordance with paragraph CARDINAL or in accordance with treaties in force between them or in accordance with any agreement otherwise reached between those Parties , the flag ORG may authorise the requesting ORG to , inter alia :", "( a ) board the vessel ;", "( b ) search the vessel ;", "( c ) if evidence of involvement in illicit traffic is found , take appropriate action with respect to the vessel , persons and cargo on board .", "… ”" ]

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[ "The applicant was born in DATE and lives in GPE . He is currently employed on a temporary basis at ORG .", "On DATE and CARDINAL DATE he made CARDINAL applications for appointment in different sections of the civil service . On DATE and DATE both of his applications were refused by ORG on the ground that he had not performed his military service or been legally exempted from it .", "On DATE the applicant lodged a judicial review application before ORG challenging the relevant decisions of ORG . He contended , inter alia , that he had refused to perform his military service with ORG as he was a homosexual and that for the determination of his sexual orientation he would have been subjected to degrading treatment contrary to LAW .", "In its interim decision of CARDINAL DATE the court rejected an application for amendment of the applicant ’s pleadings . It noted that whether or not the applicant was entitled to be exempted from military service was not a contested issue in the pending proceedings and , as such , could not be examined . The issue under dispute in the proceedings before the court was the lawfulness of the decision by ORG dismissing the applicant ’s application for lack of fulfilment of the requirement of completion of military service .", "On DATE ORG rejected the judicial review application and made an order for costs against the applicant . It justified the rejection by referring to the reasons set out in its previous interim decision and , in particular , that the applicant did not meet one of the basic requirements for appointment to ORG .", "On DATE , the applicant lodged an appeal before ORG against its first - instance judgment . The grounds of appeal had been drafted by the applicant ’s representative . On DATE the applicant filed his skeleton argument which had also been prepared by his representative . The appeal was set for a hearing on DATE .", "NORP Until that stage of the proceedings , the applicant was being represented by a lawyer of his choice , but due to his inability to settle outstanding legal fees he had to stop receiving legal assistance from his lawyer .", "On DATE he filed an application for legal aid claiming that the proceedings concerned the protection of his human rights and thus fell within the scope of proceedings for which the grant of legal aid was envisaged by LAW ( I ) of DATE .", "On DATE , his application for legal aid was rejected by ORG , acting in a panel of CARDINAL judges , which referred to the relevant provisions of LAW and explained that legal aid could only be provided in criminal proceedings , civil proceedings that concern determination of a litigant ’s human rights and proceedings lodged before the family courts . The proceedings introduced by the applicant , who sought judicial review under LAW of a decision refusing to appoint him in the civil service , did not constitute civil proceedings and , as such , his legal aid application had to be refused .", "On DATE ORG dismissed the applicant ’s appeal . The court referred to the arguments developed by the applicant ’s lawyer in the proceedings . It found that the issue of unconstitutionality had not been raised by the applicant ’s lawyer in accordance with the requirements set out in the relevant procedural provisions and case - law given that it had only been set out in a vague and imprecise manner in the application seeking judicial review . The court further took into account the points raised by the applicant ’s lawyer in his written address to the ORG . It found that the vague suggestions made concerning unconstitutionality had no legal foundation and were irrelevant to the subject - matter of the judicial review application . No other ground for annulment of the relevant decision had been raised or shown .", "Article CARDINAL of the LAW of GPE provides as follows :", "“ CARDINAL . ORG shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision , an act or omission of any organ , authority or person , exercising any executive or administrative authority is contrary to any of the provisions of this LAW or of any law or is made in excess or in abuse of powers vested in such organ or authority or person .", "Such a recourse may be made by a person whose any existing legitimate interest , which he has either as a person or by virtue of being a member of a ORG , is adversely and directly affected by such decision or act or omission .", "Such a recourse shall be made within DATE of the date when the decision or act was published or , if not published and in the case of an omission , when it came to the knowledge of the person making the recourse .", "Upon such a recourse the ORG may , by its decision-", "( a ) confirm , either in whole or in part , such decision or act or omission ; or", "( b ) declare , either in whole or in part , such decision or act to be null and void and of no effect whatsoever , or", "( c ) declare that such omission , either in whole or in part , ought not to have been made and that whatever has been omitted should have been performed .", "Any decision given under paragraph CARDINAL of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned .", "Any person aggrieved by any decision or act declared to be void under paragraph CARDINAL of this LAW or by any omission declared there under that it ought not to have been made shall be entitled , if his claim is not met to his satisfaction by the organ , authority or person concerned , to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant . ”", "Law CARDINAL ( I ) of DATE on ORG provides , in so far as relevant , as follows :", "“ CARDINAL . Legal aid shall be granted free of charge in the proceedings provided for in DATE , CARDINAL and CARDINAL below , to the extent and under the conditions laid down therein .", "CARDINAL ( CARDINAL ) This section applies-", "( a ) In criminal proceedings before a court , against any person , for an offence that he may have committed in violation of any legislative provision , for which an imprisonment sentence exceeding DATE is provided for and includes preliminary interrogation and every other stage of interrogation or other procedure taking place before the commencement of subsequent criminal proceedings that relate to it ;", "( b ) Except for the criminal proceedings provided for in paragraph ( b ) of subsection ( CARDINAL ) of LAW below , in any other proceedings before a court exercising its criminal jurisdiction .", "( CARDINAL ) For the purposes of the application of this section , the term “ court ” means ORG , ORG , ORG and includes ORG , when examining any issue raised in criminal proceedings , in exercising its first- or second - instance jurisdiction .", "( CARDINAL ) In the proceedings provided for in subsection ( CARDINAL ) above , legal aid will be granted free of charge , and will include advice , assistance and representation .", "( CARDINAL ) For the purposes of the application of this section , the term “ proceedings for determined violations of human rights ” means any :", "( a ) Civil proceedings before a court , at any stage , lodged against the Republic for damages sustained by a person due to determined violations of human rights ; or", "( b ) Criminal proceedings lodged by any person where the offence in examination concerns determined violations of human rights .", "( CARDINAL ) Legal aid will be granted , free of charge , to proceedings concerning determined violations of human rights .", "( CARDINAL ) Legal aid granted by virtue of this section :", "( a ) In the case of civil proceedings lodged in the LOC or criminal proceedings , will include advice , assistance and representation ; and", "( b ) In civil proceedings lodged outside the Republic , will include only advice .", "( CARDINAL ) ORG may , by an order published in ORG , amend the Table .", "( CARDINAL ) For the purposes of this section , the term “ proceedings before a family court ” means :", "( a ) Proceedings raised in respect of family relations on the basis of provision of bilateral or multilateral treaties to which the Republic has acceded ; or", "( b ) Proceedings concerning parental care , alimony , recognition of a child , adoption , proprietary relations of spouses and any other marital or family dispute .", "( CARDINAL ) Free legal aid is provided for in proceedings before a family court , and includes advice , assistance and representation . ”" ]

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[ "The applicant , a GPE registered company ( PERCENT owned by island residents and PERCENT owned by NORP interests ) , was represented by PERSON PERSON , a solicitor practising in GPE .", "GPE and LOC ( “ LOC ) were acquired by the Crown by settlement . There were no indigenous peoples . DATE until DATE it was a British Dependent Territory and a Dependency of GPE . After DATE , PERSON ceased to be a dependency of GPE and became a British Overseas Territory as defined in GPE CARDINAL . GPE is responsible for its international relations . The government of the LAW comprises officials from GPE who are posted to and operate from GPE . There is no democratic mechanism . No one lives on the LAW apart from a transient group of scientists working for ORG .", "The applicant owns a fishing vessel – MV Jacqueline – which operated under a GPE flag and was specially equipped with long lines to fish the NORP toothfish , found in the waters of the LOC . Fishing in LOC waters is regulated pursuant to ORG ( “ CCAMLR ” ) to which GPE is a party . DATE total allowable catches are set by ORG to particular designated blocks of ocean . The coastal ORG countries enforce those limits . In the case of the LAW , the relevant coastal ORG is GPE . From DATE it operated a licensing system which limited the amount of fish caught by each licensed vessel .", "The PERSON was granted a licence for DATE . In DATE the applicant sought a licence as usual but was refused by the SGSSI authorities . It was unaware of the reasons .", "The applicant applied for judicial review of the refusal before ORG of GPE . Evidence was submitted indicating that ORG ( ORG ) had intervened in order to reduce the number of GPE flagged vessels receiving licences in favour of vessels from other coastal GPE to avoid adverse diplomatic repercussions in a sensitive area and had indicated that licences should be given to GPE vessels with the best conservation - compliance record , which in their view excluded the applicant . But for this intervention , the DATE ORG would have given a licence to the applicant . By an order of DATE , the Chief Justice declared that the DATE decision , taken on advice from the ORG and not pursuant to an instruction within the meaning of the SGSSI Order DATE ( SI CARDINAL , which forms the constitution of the territory ) , was not properly based on relevant matters to be taken into account and accordingly was unlawful . He ordered that the application be remitted for fresh consideration .", "On DATE the Secretary of ORG for ORG in GPE formally instructed the NORP Commissioner to instruct the SGSSI Director of Fisheries to allocate licences to any GPE flagged vessel , other than to CARDINAL vessels named in the instruction ( which did not include the applicant ’s ) .", "The applicant challenged the lawfulness of the instruction in ORG in GPE .", "On DATE the High Court judge found , noting the flawed basis on which the ORG had taken the view that the applicant had not complied with conservation measures , that the criteria on which the licences were granted had not been made clear or transparent and there had been manifest unfairness in the way in which the ORG had issued its instructions to exclude the applicant . The instruction was accordingly unlawful and quashed .", "On DATE ORG upheld the lower court ’s decision , making adverse comment on the way the authorities had acted . The applicant had sought damages for the losses from DATE and this claim , stayed during the earlier proceedings , was revived , relying on LAW No . CARDINAL .", "On DATE Mr Justice PERSON struck out the claim for damages , accepting the argument of the Secretary of ORG that Protocol No . CARDINAL had not been extended to the LAW .", "On DATE ORG rejected the applicant ’s appeal finding that the applicant was unable to bring a claim for damages based on LAW No . CARDINAL because the latter provision had not been extended to the LAW by GPE . It held that the issue of control over territory DATE which had founded the extraterritorial reach of ORG in other circumstances – was not relevant to a case such as that before it , where a declaration had to be made for the provision in question to apply .", "On DATE ORG dismissed the applicant ’s appeal , also finding that LAW No . CARDINAL did not apply to the LAW ." ]

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[ "The applicants are :", "CARDINAL ) PERSON , who was born in DATE ;", "CARDINAL ) PERSON , who was born in DATE ;", "CARDINAL ) PERSON , who was born in DATE ;", "CARDINAL ) PERSON , who was born in DATE ;", "CARDINAL ) Mr PERSON , who was born in DATE .", "On DATE the federal armed forces carried out a large - scale “ sweeping ” operation ( “ zachistka ” ) in the village of ORG in GPE . According to the Government , interior troops of ORG participated in the operation .", "The applicants submitted numerous NGO and press reports on these events as well as statements by other villagers about the general circumstances of the sweeping operation and the detention of their relatives .", "According to the applicants , a similar operation took place in the nearby village of ORG on DATE , where CARDINAL persons were detained .", "The first applicant is the mother of PERSON , who was born in DATE . The second applicant is the first applicant 's daughter and PERSON sister . They live at DATE FAC in GPE . According to the applicants , at the material time PERSON was planning to enrol in a law faculty in GPE .", "According to the first applicant , at TIME on DATE an armoured personnel carrier ( “ ORG ” ) pulled up in front of their house . The first applicant noted that the ORG identification number was GPE . Several armed men in camouflage uniforms rushed into the courtyard , where the applicant 's son PERSON and his cousin PERSON , who lived in the same house , had been waiting for them with their passports in hand . The first applicant submitted that the documents were in order . Nevertheless , the soldiers had collected the passports without looking at them , pulled the PERSON cousins ' shirts over their heads and forced them into the ORG . In reply to the first applicant 's question about the reasons for their arrest , the servicemen stated that they had orders to detain every man aged DATE .", "NORP The soldiers then searched the house and , according to the first applicant , took some money and household items .", "PERSON later recalled that the ORG into which they were put had stopped in a neighbouring street and they had been ordered to get out and to climb into a military truck . He had noticed a serviceman with CARDINAL or CARDINAL passports in his hand nearby . There were several people inside the truck , both detainees and servicemen . CARDINAL of the servicemen had ordered PERSON to climb into the far corner of the truck and to cover himself with a piece of canvas attached to the side . Apti had obeyed .", "The detainees had then been taken to a passport checkpoint situated in a field near the village , where the basement of an unfinished building stood . PERSON and other detainees had been ordered out of the truck . Apti was ordered to stay in the vehicle but got out and sat on the ground with the rest of them . He was frightened and PERSON had tried to calm him down , even though the detainees were not allowed to talk . TIME a man in camouflage uniform had arrived , had looked through a passport he had been holding and had ordered PERSON to climb back into the truck .", "The first applicant referred to the statements of other witnesses she had managed to collect which stated that PERSON had then been brought to the ORG no . ChCARDINAL and had spent some time inside . Several witnesses among those detained DATE stated that they had seen Apti in the ORG in TIME DATE , TIME after his apprehension . CARDINAL of those witnesses was PERSON . who had been taken to the passport checkpoint at TIME and had seen PERSON inside the ORG .", "The third applicant is the mother of PERSON , who was born in DATE . The fourth applicant is PERSON wife and the fifth applicant their son . PERSON and his family used to live in Grozny , but after the resumption of hostilities moved to ORG to his mother 's home because he thought they would be safer there .", "The third and fourth applicants did not witness PERSON detention but referred to eye - witness statements submitted by them to the ORG . According to those statements , at TIME on DATE PERSON was detained in GPE in PERSON . The applicants submitted several statements of villagers who had witnessed LOC 's detention in the street . Several witnesses , including PERSON . ( see above ) , stated that they had seen PERSON in ORG no . ChCARDINAL in TIME DATE .", "The first , third and fourth applicants , along with other relatives of those detained during the “ sweeping ” operation , walked to the edge of the field where the men had been detained and remained there until TIME . The guards did not allow them to approach any nearer .", "According to the applicants , at TIME an officer with the rank of major came out and reassured them that all the detainees would be released TIME . He also told them that he shared their indignation and that he had already talked to his superiors about the events . TIME he came out once again and repeated his comments .", "At TIME the women saw some of the detainees being put into CARDINAL buses . When the buses drove off , the women tried to block them , but the soldiers started to shoot at the ground in front of the crowd and dispersed them .", "The men from ORG remained detained at the passport checkpoint in the field until TIME of DATE . At QUANTITY the military started to release them in small groups , and by TIME there was no one left in the field . TIME men were not released , however , and their relatives were eventually told that they had been taken to ORG ( “ ORG ” ) . PERSON and PERSON were not released that night , and the applicants have had no news of them since .", "Early in the morning on DATE the fourth applicant went to the military camp in an attempt to obtain information about her husband from the major who had talked to them TIME , but the military were already leaving and she was unable to speak to anyone .", "Later in the morning on DATE the first , third and fourth applicants , along with other relatives who had not seen their detained family members since DATE , went to ORG . There they were shown a list of CARDINAL names of persons from ORG , including PERSON and PERSON , who had been brought to ORG . According to the applicants , during DATE detainees were gradually released from ORG , but they told the applicants that they had not seen their relatives inside . In TIME of DATE the head of the ORG village administration joined the applicants at ORG . In reply to their enquiries the officials there denied that the CARDINAL men had ever been brought there , contrary to what they had said in TIME .", "On DATE the applicants went to the village of ORG , in which a similar “ sweeping ” operation was being carried out . They saw the ORG with the identification number GPE there and the same truck in which their CARDINAL relatives had been taken away from ORG DATE , a LOC with identification no . O CARDINAL CARDINAL KSh .", "On DATE the applicants also talked to PERSON . , who had attended the same school as PERSON and knew him quite well . He stated that on DATE he had seen PERSON and PERSON in a military LOC truck in ORG . PERSON . said that he had heard someone asking for water from inside the truck saying that “ we have not had any water since DATE ” and when CARDINAL of the military lifted the canvas to give him some water , the witness had seen CARDINAL men , CARDINAL of whom he had immediately recognised as PERSON . Both men had traces of beatings on their faces , and LOC 's hand was hurt , probably broken . PERSON . 's written statement was submitted to the ORG .", "DATE the applicants waited near the passport checkpoint in the field near GPE until TIME hoping that their relatives would be released together with the detainees from that village , but in vain .", "They and their other relatives continued to search for the CARDINAL missing men . On numerous occasions , both in person and in writing , they applied to prosecutors at various levels , to ORG , to the administrative authorities in GPE , to the Special Envoy of the NORP President for Rights and Freedoms in GPE , to the media and to public figures . In their letters to the authorities the applicants gave details of the detention of PERSON and PERSON and asked for assistance and information about the investigation , but were given hardly anything of substance . On several occasions they and other relatives received copies of letters forwarding their requests to various prosecution services .", "On DATE and DATE the applicants and their relatives applied in person to ORG of ORG and submitted a written complaint . They also applied in person to ORG . They asked for assistance in searching for the CARDINAL missing men , but the officials denied that they had ever been detained by the district authorities .", "On DATE ORG of ORG forwarded the applicants ' complaints to ORG . The latter replied to the first applicant in a letter of DATE that PERSON had not been detained by the PERSON and that the local office of the ORG had no information about his whereabouts .", "On DATE the third applicant wrote to the head of the administration of LOC and asked for assistance in finding PERSON and PERSON . She referred to witness statements and submitted the known details of the CARDINAL men 's apprehension , including the identification numbers of the military vehicles and call - signs of the military involved .", "On DATE PERSON , who , as noted above , was PERSON cousin and a witness to his detention , wrote to the head of ORG of the ORG and on DATE to ORG of GPE . He described in detail the events of DATE and requested that his cousin be found .", "On DATE the Prosecutor 's Office of ORG informed the third applicant that her son had not been detained by personnel of the district department of the ORG and had not been brought to ORG .", "On DATE the second and fourth applicants wrote to ORG of GPE to complain that they had not been granted victim status in the criminal proceedings concerning the disappearance of their brother and husband respectively . On DATE fourth applicant requested ORG of GPE to institute criminal proceedings in respect of her husband 's abduction .", "The applicants reiterated their requests for assistance in searching for their relatives and information on the progress of the investigation to ORG on DATE and DATE , ORG of GPE on DATE , CARDINAL and DATE and the Minister of Defence on DATE .", "On DATE ORG of ORG instituted criminal proceedings in connection with numerous complaints of the residents of ORG of abuse of authority by federal servicemen during a special operation of DATE . The case file was assigned number CARDINAL .", "On DATE ORG of GPE informed the third applicant of the decision of DATE , stating that the disappearance of PERSON and PERSON was being investigated in the context of those proceedings . On DATE ORG of GPE informed the applicants that the proceedings in criminal case no . DATE were pending and that they would be informed of the outcome .", "On DATE ORG replied to the applicants that their complaint had been forwarded to ORG of the ORG and that the search for their relatives would remain under the control of ORG .", "On DATE ORG informed the applicants that a number of steps aiming at locating their relatives ' whereabouts had been taken . In particular , ORG had opened “ search files ” ( розыскные дела ) and the CARDINAL men had been included in the federal search database as well as in the system of identification of unidentified bodies . However , those efforts had not brought any results thus far . The letter assured the applicants that they would be informed of any results of the search .", "On DATE the third applicant requested ORG of GPE to update her on the results of the investigation .", "NORP In similar letters dated DATE the latter replied to each of the applicants that on DATE ORG of ORG had opened criminal investigation no . DATE in connection with the allegations of abuse of authority , unlawful use of violence and detention , theft and destruction of property during the special operation in ORG on DATE and that the investigation was being conducted by ORG of GPE . It had established that at TIME and TIME respectively on DATE , PERSON and PERSON had been detained and that their whereabouts had remained unknown since . APC no . GPE belonged to military unit no . DATE , which had participated in the operation . During questioning , the ORG crew had stated that they had taken a number of people to the location of ORG detachments which had been carrying out identity checks on the detainees . The investigating authorities had also questioned a number of servicemen from ORG who had stated that pursuant to an order of Lieutenant - Colonel PERSON , the deputy commander of the operation , they had put CARDINAL “ NORP ” into a separate vehicle . On DATE , also upon the deputy commander 's orders , the CARDINAL men had been taken to the military base in GPE ( the main NORP military base in GPE ) where they had been handed over to servicemen from ORG . However , given that no record concerning their apprehension or detention had been drawn up , it had been impossible to establish their identities . The letters did not specify whether Lieutenant - Colonel PERSON had been questioned as a witness . It was further stated that the investigating authorities had been unable either to identify those responsible or to establish the whereabouts of PERSON and PERSON . The search had also involved verification of unidentified bodies in GPE and the neighbouring regions . The relatives of those missing had been granted victim status in the criminal proceedings . The letters concluded that on DATE the investigation had been suspended owing to the failure to identify the alleged perpetrators .", "According to the applicants , DATE and DATE CARDINAL investigators of ORG of GPE had been appointed in turn to deal with the case . The missing men 's personal details , such as their height , shoe size and photographs , had only been collected from the applicants in DATE . The applicants also submitted that the investigators had complained to them that they had had no answers or assistance from the military authorities of the GPE base in establishing the whereabouts of PERSON and PERSON .", "On DATE ORG of GPE , in reply to a query from the first applicant , confirmed that her son was being searched for by the law - enforcement bodies and that the investigation in criminal case no . DATE had been suspended on DATE , as it had been impossible to identify those responsible .", "On DATE similar information was sent to PERSON father .", "In a letter of CARDINAL DATE ORG of GPE informed the fourth applicant that the criminal proceedings in case no . DATE had been resumed on DATE .", "In a letter of DATE the PERSON , on behalf of the first and third applicants , requested ORG of GPE to inform them of the developments in the investigation and to grant them victim status in the proceedings . On DATE the ORG sent a copy of its previous letter to ORG of GPE , as it had not received any reply . On DATE the applicants forwarded a similar letter to ORG .", "On DATE the investigation was suspended on account of the failure to identify the culprits .", "On DATE ORG of GPE replied to the PERSON 's request lodged on the applicants ' behalf that criminal case no . DATE had been forwarded to ORG of ORG for examination .", "According to the Government , “ having obtained reliable information that PERSON and PERSON had disappeared during the special operation ” , on DATE ORG of GPE decided that a case in respect of the disappearance of the applicants ' CARDINAL relatives under LAW ) of LAW ( aggravated kidnapping ) should be opened and severed from criminal case no . DATE . It appears that the new case was first assigned number DATE which was then changed to number DATE . It was sent for investigation to the military prosecutor 's office of military unit no . CARDINAL in GPE in order to check the possible involvement of military personnel in the alleged offence .", "In his decision of DATE to open criminal case no . DATE , the deputy prosecutor of GPE , “ having examined the information on a criminal offence committed on DATE during the special operation of the federal forces in ORG , which had been submitted by an investigator of ORG of GPE on DATE ” , established that :", "“ On DATE , during a special operation in the village of ORG of LOC of GPE , PERSON and GPE PERSON were detained and taken away in ORG no . ChCARDINAL by detachments of the federal forces . However , they were not delivered to the passport checkpoint situated on the outskirts of ORG . Their whereabouts remain unknown to date . The investigation has established that the ORG belonged to [ a detachment ] of ORG which , during the operation , was under the command of the commander of military unit no . DATE , Major [ M. ] . The crew of ORG no . PERSON was under the command of Senior Lieutenant [ PERSON ] . ”", "The decision then made orders for a criminal case to be opened under LAW and criminal proceedings to be brought against PERSON and PERSON on suspicion of the abduction of the applicants ' CARDINAL relatives .", "In a letter of DATE , ORG of GPE informed the first and third applicants “ in reply to their numerous queries ” that on DATE criminal proceedings no . DATE had been instituted under LAW ) in connection with the abduction of their sons on DATE by participants of the special operation carried out by the federal forces in ORG . The letter stated that the applicants would be notified of any results of the investigation .", "On DATE the Prosecutor 's Office of GPE transferred the criminal case to ORG of ORG ( ORG , GPE группировка войск ) . The decision , submitted by the Government , read as follows :", "“ On DATE , during a special operation in the village of ORG of LOC of GPE conducted by federal forces , Ministry of the Interior troops detained [ PERSON , who was born in DATE , and [ GPE ] PERSON , who was born in DATE , whose whereabouts have yet to be established .", "On DATE a special operation was conducted in the village of ORG in LOC of GPE in accordance with the LAW commander 's directive no . CARDINAL/CARDINAL of DATE and ORG order no . CARDINAL/CARDINAL of DATE . The ORG deputy commander in respect of special operations , Colonel [ B. ] , was the head of the operation . Detachments from ORG , ORG , ORG and ORG [ ВОГО и П МВД DATE временная объединенная группировка органов и подразделений ORG ] took part in its conduct .", "Units CARDINAL DON , CARDINAL ORB [ ORG – отдельный разведывательный батальон ] , CARDINAL ORG [ ORG – отдельная бригада оперативного назначения ] , special task units nos . CARDINAL and CARDINAL under the command of Colonel [ V. ] took part in the operation on behalf of ORG troops .", "A passport checkpoint was established on the outskirts of ORG in order to check the passports of those detained . This work was carried out by CARDINAL officials of ORG of ORG under the command of Major [ Vas . ] , who arrived in [ CARDINAL special vehicles for transporting the detainees ] and a bus , and by CARDINAL members of operations staff of ORG under the command of Major [ Mos . ] .", "Pursuant to an order by Colonel [ B. ] , CARDINAL joint search groups were formed of servicemen from special task units nos . CARDINAL and CARDINAL , CARDINAL ORG , military unit no . DATE , CARDINAL ORG ... and policemen under the command of officers from ORG troops .", "Cover for the groups was provided by armoured ORG units whose identifications numbers were concealed by mud on the orders of the operation commanders .", "In TIME of DATE , , CARDINAL of the search groups under the command of the head of intelligence of CARDINAL ORG Lieutenant - Colonel [ M. ] detained [ R.S. ] ORG and [ PERSON at DATE FAC . They were both taken out of the house by subordinates of [ M. ] and put in APC-CARDINAL ( identification no . ChCARDINAL ) , which was under the command of a head of platoon from military unit no . DATE Senior Lieutenant [ PERSON ] .", "In the course of the preliminary investigation it has been established that in TIME of DATE [ PERSON was held in ORG ( identification no . ChCARDINAL ) under the command of Senior Lieutenant [ PERSON ] and subsequently in a NORP military vehicle . In TIME [ A.A. ] PERSON returned to [ the ] ORG , where he was held together with [ GPE ] PERSON .", "During the conduct of the special operation in ORG on DATE CARDINAL of the search groups detained ... [ GPE ] PERSON , who resided at CARDINAL NORP Street , Sernovodsk . During TIME DATE he was also held in ORG [ with the identification no . ] ChCARDINAL .", "After their detention by ORG troops on DATE PERSON and GPE PERSON were not brought to the passport checkpoint or transferred to the police . Nor are they listed in the register of residents of ORG who were detained at the passport checkpoint .", "PERSON , who was questioned as a witness , stated that some time after he and PERSON had been apprehended by the servicemen and placed in the ORG they were transferred to a LOC vehicle in which other residents of the village had already been placed . That vehicle had taken them to the passport checkpoint where everybody except for his cousin had got out . PERSON had then been taken to an unknown destination . During the night DATE PERSON had been allowed to go home and his passport had been returned to him .", "On the basis of the records of questioning of officials from ORG of ORG it has been established that during the operation CARDINAL residents of ORG ethnic origin were held in [ the special vehicle used for transporting detainees ] without proper documents authorising their detention . The investigation has established that those persons were [ PERSON . ] , [ PERSON . ] and [ PERSON . ] , who on DATE were brought to the village of ORG and then transferred to ORG .", "On DATE witnesses [ R.Kh . ] and [ V.Kh . ] , who resided [ in ] the village of ORG , saw PERSON in a military vehicle ZIL-CARDINAL in which they were also placed by ORG troops and taken to the passport checkpoint on the outskirts of ORG for an [ identity ] control .", "[ V.Kh . ] identified Senior Lieutenant [ K. ] as the head of the group that had detained them on DATE and ordered them to be put in the military vehicle ZIL-CARDINAL where an acquaintance , PERSON from ORG , was already held . There was also another man in the vehicle , whom the witnesses had not been able to see clearly . Both men 's arms were tied .", "However , neither PERSON nor GPE are mentioned in the records pertaining to the period from DATE in the register kept at the passport checkpoint in the village of ORG . Therefore , it is established that CARDINAL and DATE PERSON and GPE were neither held in [ the special vehicles used for transporting detainees ] by ORG of ORG nor brought to the [ premises of the ] Temporary United Alignment of Agencies and Units of ORG .", "On DATE CARDINAL persons of NORP ethnic origin were brought to ORG in GPE . However , they were residents of the village of GPE ... and were released later at the request of [ the head of the village administration ] .", "On DATE materials concerning the kidnapping of PERSON and GPE GPE on DATE by participants of the special operation were separated from criminal case no . DATE , and criminal case no . DATE was opened ...", "In the course of the preliminary investigation it has been established that servicemen from military units nos . DATE under the command of Lieutenant Colonel [ M. ] and Senior Lieutenant [ PERSON ] were involved in the abduction of PERSON and GPE GPE . This has been confirmed by the records of questioning of witnesses [ NORP ] , [ PERSON ] and [ Gar . ] and by reports of identification by [ M. ] , [ PERSON ] , [ Gar . ] and [ NORP ] and by witnesses and victims .", "PERSON , who was questioned as a witness , submitted that ORG troops had , in breach of orders of the head of the operation Colonel [ B. ] , independently carried out searches and apprehended persons on DATE in ORG . [ PERSON ] had informed Colonel [ V.]of this , but he had ignored the information .", "Witness [ PERSON ] submitted that during DATE of DATE he had received by radio transmitter numerous orders[from M. ] to take his APC-CARDINAL [ with identification no . ] ChCARDINAL to specified addresses in ORG and to accept persons apprehended by intelligence units of ORG troops . [ Those arrested were ] subsequently to be delivered to the passport checkpoint and transferred to offices used by troops from the Alignment [ of GPE and Units ] of ORG without any documents [ authorising their detention ] . He also submitted that he had witnessed a quarrel between [ M. ] and a local resident which had taken place in TIME DATE relating to the order requiring the identification numbers of the armoured vehicles to be covered in mud . [ M. ] had ordered [ PERSON ] to cover the identification number ChCARDINAL of the ORG in mud as well .", "Therefore , it is established that ORG troops were involved in the abduction of PERSON and GPE GPE . Furthermore , the investigation has refuted false statements by the heads of the special operation , Colonels [ B. ] and [ ORG ] [ who stated that ] the servicemen had not been involved in detentions during the special operation .", "The lack of control by Colonel [ ORG ] and Colonel [ B. ] over the conduct of the operation and their failure to perform their duties properly led to the commission of this premeditated crime by servicemen . In breach of the established order concerning the conduct of the special operation , ORG troops independently carried out checks of private households and detained and searched people and took them to the passport checkpoint .", "Furthermore , Colonels [ ORG ] and [ B. ] concealed from the ORG command the abduction of PERSON and GPE GPE by ORG troops under the command of Lieutenant - Colonel [ M. ] and Senior Lieutenant [ K. ] , who had participated in the special operation of DATE .", "Since the preliminary investigation of this type of offence ... is carried out by the military prosecutor 's office ... criminal case no . DATE ... [ shall be ] transferred to ORG ... ”", "On DATE the UGA Military Prosecutor 's Office said in reply to an enquiry from the fourth applicant that the case was being investigated by the military prosecutor 's office of military unit no . DATE .", "On DATE the military prosecutor 's office of military unit no . CARDINAL extended the term of the preliminary investigation until DATE . The decision described the investigative acts that had been performed , which included : the questioning of CARDINAL residents of ORG ; the questioning of the first , third and fourth applicants and granting them victim status ; the questioning of servicemen PERSON , PERSON , ORG . , NORP “ and others ” who had taken part in the operation . It was further stated that additional steps were required to complete the investigation .", "On DATE the military prosecutor 's office of military unit no . CARDINAL informed the SRJI that they were in the process of investigating criminal case no . DATE , which had been instituted under LAW by ORG of GPE on DATE . It stated that it had received the case file in DATE and victim status in the proceedings had been granted to the first , third and fourth applicants . In that connection , the military prosecutor 's office noted that copies of the decision granting victim status could only be served on the victims . In conclusion it was stated that the relatives of the missing men would be notified of the results of the investigation .", "On DATE the military prosecutor 's office informed the applicants that the preliminary investigation had been suspended on DATE , in accordance with LAW of LAW and that they could challenge that decision before a superior prosecutor or in court .", "On DATE the military prosecutor 's office resumed the proceedings and notified the fourth applicant accordingly .", "On DATE it again suspended the investigation , on this occasion on account of the death of suspect PERSON and the fact that suspect PERSON had been transferred to a different region .", "On DATE ORG of Grozny declared PERSON a missing person as from DATE .", "On DATE ORG resumed the investigation .", "On DATE it suspended the investigation . The first and third applicants were notified accordingly . The decision read as follows :", "“ On DATE ORG of GPE instituted criminal proceedings under LAW against [ M. ] , [ PERSON ] and other persons .", "On DATE , during a special operation in the village of ORG of LOC of GPE , PERSON and GPE PERSON were detained and taken away in ORG no . ChCARDINAL . Their whereabouts have not been established .", "On DATE the Chief Military Prosecutor 's Office transferred the criminal case to ORG with instructions to take additional investigative and other steps . On DATE the investigation was resumed .", "In the course of the investigation it was established that ORG no . ChCARDINAL belonged to ORG troops [ detachment ] CARDINAL ORG , which during the special operation had been under the command of [ K. ] , who was subordinate to [ M. ] .", "On DATE [ K. ] was transferred ... to military unit no . CARDINAL in GPE .", "However , according to the extract from order no . CARDINAL dated DATE of the commander of military unit no . DATE , [ PERSON ] was no longer on the list of staff of the military unit as he had [ retired ] .", "On DATE [ M. ] died in [ a ORG hospital ] .", "In view of the fact that all investigative measures possible in the absence of the suspects have been taken ... the preliminary investigation ... should be suspended until there is a real possibility of [ K. ] participating in it or until his recovery . ”", "On DATE the military prosecutor 's office of military unit no . CARDINAL resumed the criminal proceedings .", "By a decision of CARDINAL DATE it discontinued the criminal proceedings in case no . DATE . The first and the third applicants were informed accordingly . The decision stated that on DATE , during a special operation conducted by detachments of the federal armed forces and ORG in the village of ORG , a group of servicemen under the command of Major PERSON from military unit no . DATE had detained PERSON and PERSON and put them in ORG no . ChCARDINAL under the command of Senior PERSON from the same military unit . The CARDINAL detainees had then been delivered to the passport checkpoint and transferred to officers of ORG of ORG . On DATE PERSON and PERSON had been taken away from the passport checkpoint by unidentified persons in to an unknown destination and their location had remained unestablished since .", "NORP The decision went on to say that in the above connection on DATE the Prosecutor 's Office of GPE had instituted criminal proceedings against PERSON , PERSON and others on suspicion of their involvement in a criminal offence under LAW ) ( aggravated kidnapping ) of LAW . According to the decision , a number of witnesses had been questioned during the investigation . In particular , suspect PERSON had stated that during the special operation of CARDINAL DATE in ORG he had been entrusted with the task of delivering those detained in the course of that operation to a passport checkpoint on the outskirts of ORG and that he had not taken them anywhere else . He had also stated that he had had no information concerning the fate of the applicants ' CARDINAL relatives . Witness PERSON and the driver of APC no . ChCARDINAL had given similar oral evidence . The latter had also stated that there were no detainees left in the vehicle after the termination of the operation .", "According to the decision , the investigating authorities had also questioned Colonel PERSON , who was one of the senior officers in charge of the operation . He had stated that detachments from ORG , Ministry of the ORG troops , special police units from the city of GPE and LOC , a ORG mobile detachment in GPE , officers of ORG and personnel from ORG had taken part in the operation . Those detained during the operation had been delivered to a passport checkpoint on the outskirts of ORG . The identity check had been carried out by ORG personnel . Colonel PERSON had also referred to reports by his officers that during the operation unidentified persons , who were probably representatives of law - enforcement agencies , had disembarked from helicopters which had landed in the village . Some of these agents had been wearing masks , whilst the servicemen under his command had not worn masks DATE .", "The decision further referred to the statements of CARDINAL residents of ORG , including PERSON cousin PERSON ( who had been detained on DATE ) , all of whom had stated that they had seen the applicants ' CARDINAL relatives delivered to the passport checkpoint on the outskirts of ORG . The first applicant and PERSON , who were questioned during the investigation , had stated that they had seen the names of PERSON and PERSON on the list of detainees at FAC on DATE . The decision also stated that on DATE Major PERSON had died and on DATE Senior PERSON had been discharged from service .", "It then concluded that Major PERSON , Senior Lieutenant PERSON and servicemen of the federal armed forces who had participated in the special operation in ORG on DATE had not been involved in the abduction of PERSON and PERSON and that therefore the criminal proceedings against them should be discontinued “ in the absence of evidence of an offence ” .", "DATE . On DATE the Prosecutor 's Office of GPE resumed the criminal proceedings before suspending them on DATE on account of the failure to identify the culprits .", "On DATE ORG of GPE resumed the criminal proceedings . The third and the fourth applicants were informed accordingly .", "NORP Despite specific requests by ORG on several occasions , the ORG refused to submit a copy of the entire investigation file opened into the disappearance of PERSON and PERSON on the ground that they were prohibited from doing so by LAW . After the application had been declared admissible they submitted an update on the progress of the investigation and materials from the case file running to CARDINAL pages . The materials contained information on the conduct of the special operation in ORG , the investigative measures taken and the interim findings of the investigation .", "Until DATE criminal - law matters were governed by LAW RSFSR . On DATE the old Code was replaced by LAW ( the new ORG ) .", "Article CARDINAL of the new ORG provides for the judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .", "Article CARDINAL of the new ORG stipulates that evidence from the preliminary investigation may not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator , but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission .", "Article CARDINAL ( CARDINAL ) § CARDINAL lays down that the preliminary investigation must be suspended if the whereabouts of a suspect are known , but it is impossible to ensure his participation in criminal proceedings ." ]

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

[]

[]

[ "3" ]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "In the parliamentary elections of DATE , as a member of ORG ( ORG ) , he was elected member of parliament ( MP ) for the GPE constituency to ORG of GPE ( “ the ORG ” ) .", "Prior to his election he practised as a lawyer in GPE and , in the course of his professional activities , CARDINAL sets of criminal proceedings were brought against him , CARDINAL for insulting a lawyer and the other for insulting a public official .", "Once elected as an MP he enjoyed parliamentary immunity .", "On DATE the NORP public prosecutor applied to ORG to have the applicant ’s parliamentary immunity lifted for the purposes of the criminal proceedings against him for insulting a lawyer .", "On DATE ORG transmitted the request to ORG .", "On an unspecified date examination of the matter of the lifting of the applicant ’s parliamentary immunity in the proceedings concerning the insulting of a lawyer was referred to ORG joint committee ( “ the joint committee ” ) under LAW seq . of LAW . The joint committee decided to stay the proceedings until the dissolution of the CARDINALnd ORG .", "The applicant challenged that decision . His file was then sent before ORG of ORG ( “ the plenary Assembly ” ) .", "On DATE ORG ( “ the ORG ” ) adopted a decision suspending the criminal proceedings against the applicant for insulting a public official , by virtue of LAW .", "On DATE ORG transmitted the case file to ORG with a view to having the applicant ’s parliamentary immunity lifted .", "On DATE ORG of ORG referred the matter to the Prime Minister .", "The Prime Minister ’s Office transmitted the case file to the joint committee .", "On DATE , after noting that the applicant had requested the lifting of his immunity , the joint committee decided , in view of the nature of the charges , to stay the proceedings against him for insulting a public official until the end of his term of parliamentary office . It transmitted its decision to ORG .", "When ORG met on DATE the joint committee ’s report was read and appended to the TIME of the meeting .", "On DATE the applicant challenged the joint committee ’s decision . In his pleadings he made the point that parliamentary immunity had not been introduced to render MPs unaccountable or immune from punishment , but to allow them to discharge their duties in all freedom and independence and without fear . Unlike non - liability , he argued , inviolability was by nature a relative and temporary privilege . However , the scope of the inviolability , the procedure for lifting it and the shortcomings in its implementation had undermined due respect for ORG . The applicant added that it was unacceptable in a society governed by the rule of law that an arrangement originally intended to help MPs to discharge their duties should be transformed into a personal privilege .", "On DATE the ORG of the Speaker ’s Office informed the applicant that the CARDINAL files concerning the lifting of his immunity had been placed on the agenda of ORG .", "At the meeting of ORG on DATE the applicant once again asked to be allowed to avail himself of his right to be judged in a fair trial and requested that the obstacles to his exercise of that right be removed .", "The applicant was re - elected as a FAC party MP for the GPE constituency in the parliamentary elections of CARDINAL DATE .", "On DATE the Speaker of ORG sent him a letter informing him of progress with the procedures for lifting his parliamentary immunity .", "The relevant passages read as follows :", "“ ... during DATE ORG [ DATE ] CARDINAL files concerning immunity were forwarded to the joint committee . In CARDINAL cases the committee decided to stay the proceedings until the next dissolution . In CARDINAL cases that decision was challenged . The files corresponding to those cases were placed on the plenary ORG ’s agenda for examination . However , ORG did not examine them .", "During the CARDINALnd ORG CARDINAL files concerned your immunity . The first , file no . CARDINAL , concerned the proceedings brought against you by the GPE - Ereğli public prosecutor for insulting a lawyer ; the second , file no . CARDINAL , concerned the proceedings before ORG for insulting a public official . In both cases the joint committee decided to stay the proceedings until the end of your term of office . Following your appeal , the files were placed on the plenary ORG ’s agenda but have not been examined .", "In DATE ORG [ which started in DATE ] CARDINAL files concerning the lifting of immunity remain pending before the joint committee . CARDINAL of those files are in your name ; they were given the numbers CARDINAL and CARDINAL following your re - election on DATE . Since the beginning of this ORG all the files , including yours , have been sent before CARDINAL preparatory committees set up by the joint committee . These committees started work on DATE ... They are to announce their decisions within DATE . ”", "On DATE and DATE the applicant filed CARDINAL defence memorials against the suspension of the CARDINAL sets of criminal proceedings against him . In them he repeated his wish to be allowed to exercise his right to a fair trial .", "The reports of the joint committee recommending a stay of the criminal proceedings against the applicant until the end of his term as an MP were placed on ORG agenda of DATE , together with the applicant ’s objections to those findings .", "The matter is still pending before the ORG .", "Article CARDINAL of LAW , on the subject of parliamentary immunity , reads as follows :", "“ Members of ORG shall not be liable for their votes and statements in the course of the ORG ’s work , for the views they express before the ORG or , unless the ORG decides otherwise on the proposal of the ORG for that sitting , for repeating or revealing these outside the ORG .", "A member who is alleged to have committed an offence before or after election shall not be arrested , questioned , detained or tried unless the ORG decides otherwise . This provision shall not apply in cases where a member is caught in the act of committing a crime punishable by a heavy penalty and in cases subject to LAW if an investigation has been initiated before the election . However , in such situations the competent authority shall notify ORG immediately and directly .", "The execution of a criminal sentence imposed on a member of ORG either before or after his election shall be suspended until he ceases to be a member ; the statute of limitations does not apply during the term of office .", "Investigation and prosecution of a re - elected deputy shall be subject to whether or not the ORG lifts immunity in the case of the individual involved .", "Political party groups in ORG shall not hold discussions or take decisions regarding parliamentary immunity . ”", "Article CARDINAL of the LAW reads as follows :", "“ If the parliamentary immunity of a deputy has been waived ... , the deputy in question or another deputy may , within DATE from DATE of the decision of ORG of GPE , appeal to ORG for the decision to be annulled on the grounds that it is contrary to LAW , law or the rules or procedure of ORG . The Constitutional Court shall decide on the appeal within DATE . ”", "The Rules of Procedure of ORG of GPE provide , inter alia :", "“ Immunity", "Requests to lift immunity and the committee competent to examine them", "Rule CARDINAL : requests for the lifting of a member ’s parliamentary immunity shall be transmitted by the Speaker ’s Office to the joint committee , composed of members of the constitutional and judicial committees . ...", "The preparatory committee and its hearings", "Rule CARDINAL : the Chair of the joint committee shall appoint a preparatory committee composed of CARDINAL sworn members to examine files concerning immunity . ...", "This committee shall examine all the documents and , if necessary , hear the member concerned ; it shall not hear witnesses .", "The preparatory committee shall submit its report within DATE of being convened .", "The joint committee shall finalise the report within DATE .", "The report of the joint committee", "Rule CARDINAL : the joint committee shall examine the report and its appendices [ submitted by ] the preparatory committee .", "The joint committee shall decide whether to lift the member ’s immunity or to stay the proceedings until the end of the term of parliamentary or ministerial office .", "If the joint committee ’s report recommends lifting immunity or if an objection is received within the conditions set out in paragraph CARDINAL , the report shall be examined by ORG .", "If the proceedings have been stayed and that decision is not overturned by ORG , no action may be taken against the member concerned until DATE or her term of parliamentary office , even if the legislature has been renewed .", "The rights of the defence", "Rule CARDINAL : When a request to lift a member ’s immunity has been received , the member concerned may , if he wishes , defend himself or be defended by another member before the preparatory committee , the joint committee and ORG .", "The matter shall be decided on the evidence if a member who has asked to speak in his defence fails to answer the invitation to do so .", "In any event , the defence shall have a say .", "The mere fact that a member requests permission to waive his or her immunity shall not suffice . ”", "On DATE ORG adopted a series of judgments in cases concerning the lifting of several MPs’ parliamentary immunity . Those cases gave ORG an opportunity to clarify the scope of parliamentary immunity . The relevant passages of the judgments read as follows :", "“ ( a ) Meaning of non - liability and parliamentary immunity", "All democratic countries have granted the members of their legislative assemblies certain privileges and immunities in order to allow them to perform their legislative tasks properly . Quite evidently , the aim of granting the members of legislative assemblies a different status from that enjoyed by other citizens is not to make them a privileged group who are above the law .", "Parliamentary immunity is not an aim ; it is a means of enabling MPs to fulfil the nation ’s wishes in full by perfectly reflecting the wishes of the people within the ORG .", "Even though LAW is entitled ‘ Parliamentary Immunity’ , it actually establishes CARDINAL institutions : parliamentary non - liability and parliamentary immunity . The first paragraph of the Article explains that the members of ORG of GPE are not liable for their votes and statements in the course of the ORG ’s work , for the views they express before the ORG or , unless the ORG decides otherwise on the proposal of the Speaker , for repeating or revealing these outside the ORG .", "The second paragraph of the Article stipulates that a member who is alleged to have committed an offence before or after election may not be arrested , questioned , detained or tried unless the ORG decides otherwise . The only cases where this provision does not apply are those where a member is caught in the act of committing a crime punishable by a heavy penalty , provided that proceedings were initiated before the election , and cases subject to LAW .", "LAW does not specify on what grounds immunity may be lifted , and LAW do not cover the subject . That does not mean that the legislature has a free hand in the matter . The rationale for immunity and the way in which it has developed over DATE show that ORG ’s powers concerning the lifting of immunity are not absolute but limited . Furthermore , the fact that immunity has a place in the LAW means that the rules and aims of immunity must be defined in the light of the rules and aims of LAW . There is no doubt that the intention , when immunity was provided for in LAW , was to allow those responsible for legislative duties to carry them out in the knowledge that they were safely sheltered , and rightly so , from all worry and pressure . In other words , the aim of parliamentary immunity is to ensure that MPs are not prevented , even temporarily , from fulfilling their functions by arbitrary criminal proceedings . So the powers of the legislature in the matter are limited by the purpose for which immunity was institutionalised in LAW .", "...", "Provision has been made for decisions of ORG of GPE concerning the lifting of immunity to be scrutinised by ORG with regard to their conformity not only with the LAW but also with LAW ...", "When such decisions of ORG of GPE are scrutinised , attention must be paid to the seriousness of the accusation and whether or not it is politically motivated . In addition , the decision must be in conformity with the rationale behind immunity as a constitutional institution .", "In criminal proceedings an MP whose parliamentary immunity has been lifted is like any other citizen . He enjoys all the guarantees set out in the LAW and laws of GPE . All the principles that apply to citizens likewise apply to him . He may , for example , be taken into police custody , questioned , detained and , to all intents and purposes , subjected like any other citizen to all the applicable procedural rules . ... ”", "Under LAW enshrined in LAW no . CARDINAL of DATE :", "“ If the opening of proceedings is subject to authorisation , adoption of a decision or the resolution of a problem pending before another body ... , the running of time for the purposes of limitation shall be suspended until such authorisation is obtained , such decision adopted or such problem resolved . ”", "Law no . DATE on LAW was passed on DATE and published in ORG on DATE . LAW provides :", "“ ( CARDINAL ) When the investigation or prosecution depend on authorisation , adoption of a decision or the necessary resolution of a problem pending before another body , the running of time for the purposes of limitation shall be suspended until such authorisation [ is granted ] , such decision adopted or such problem resolved ...", "( CARDINAL ) Where an offence has been committed , the running of time shall be suspended from the time when :", "( a ) the prosecutor questions or takes a statement from the suspect or the accused ;", "( b ) a decision is taken to remand the suspect or the accused in custody ;", "( c ) an indictment for the offence is issued ;", "( d ) a conviction is pronounced , even if it concerns only some of the accused parties .", "( CARDINAL ) A suspension of limitation causes time to begin to run again . Where there is CARDINAL ground for suspension of limitation , time begins to run again from the date of the last event triggering suspension ... ”", "Under LAW of the old LAW enshrined in PERSON no . CARDINAL of DATE , when the criminal proceedings , and therefore the trial , are subject to a condition precedent and it is established that the condition has not been met , a decision to stay the trial is adopted until the condition has been met .", "On DATE a new Code of Criminal Procedure was introduced .", "On DATE the Secretariat of ORG took stock of the number of cases where parliamentary immunity had been lifted since DATE . It found that ORG had lifted the parliamentary immunity of CARDINAL MPs in the course of DATE Parliaments .", "According to the lists and information provided by the parties , during the CARDINALnd Parliament CARDINAL files concerning the lifting of immunity were pending before parliamentary bodies , but no decisions to lift immunity were taken . Since DATE ORG , CARDINAL files concerning the lifting of immunity have apparently been pending before ORG .", "DATE ( CARDINAL DATE ) provides :", "“ a. ORG , representatives of members and the ORG shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions . These immunities shall include immunity for all representatives to the Consultative [ Parliamentary ] ORG from arrest and all legal proceedings in the territories of all members , in respect of words spoken and votes cast in the debates of the ORG or its committees or commissions . ”", "The General Agreement on Privileges and Immunities of the Council of Europe ( DATE ) includes the following provisions :", "“ Representatives to the Consultative [ Parliamentary ] ORG and their substitutes shall be immune from all official questioning and from arrest and all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions . ”", "“ During the sessions of the Consultative [ Parliamentary ] ORG , the representatives to the ORG and their substitutes , whether they be members of parliament or not , shall enjoy :", "a. on their national territory , the immunities accorded in those countries to members of parliament ;", "b. on the territory of all other member GPE , exemption from arrest and prosecution .", "This immunity also applies when they are travelling to and from the place of meeting of the Consultative [ Parliamentary ] Assembly . It does not , however , apply when representatives and their substitutes are found committing , attempting to commit , or just having committed an offence , nor in cases where the ORG has waived the immunity . ”", "The LAW to LAW ( DATE ) provides :", "“ The provisions of LAW shall apply to representatives to the [ Parliamentary ] ORG , and their substitutes , at any time when they are attending or travelling to and from meetings of committees and sub - committees of the Consultative [ Parliamentary ] ORG , whether or not the ORG is itself in session at such time . ”", "“ Privileges , immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned , but in order to safeguard the independent exercise of their functions in connection with ORG . Consequently , a member has not only the right but the duty to waive the immunity of its representative in any case where , in the opinion of the member , the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded . ”", "In its Resolution CARDINAL ( DATE ) on LAW CARDINAL.a of LAW , ORG of ORG stated :", "“ CARDINAL . ORG refers to its LAW ( DATE ) and LAW ( DATE ) on immunities of members of ORG , which underlined that immunities are granted in order to preserve the integrity of the ORG and to safeguard the independence of its members in exercising their NORP office .", "...", "It resolves to interpret LAW as follows : regardless of the national regime of immunity , ORG representatives or substitutes shall be protected against prosecution and arrest in the exercise of their functions as ORG members or when travelling on ORG business , whether this is inside or outside of their national territory . If they are not active within this meaning or not travelling on ORG business , the national regime shall apply within their country .", "The ORG also considers that it is appropriate for the relevant ORG organs , when examining requests for the waiver of immunity and for the defence of immunity of its members , to question whether the competent national authorities have respected LAW as interpreted by ORG and other relevant ORG legal instruments and texts which the respective countries have ratified or accepted . The ORG should express its concern when ORG norms have been obviously disregarded in respect of CARDINAL of its members .", "...", "Consequently the ORG decides to :", "add the following paragraph after paragraph CARDINAL in Rule CARDINAL of ORG :", "‘ a. When dealing with requests for the waiver of ORG immunity , or with requests to defend that immunity of an ORG member , the competent ORG bodies shall interpret LAW as follows . ORG representatives or substitutes are immune from prosecution and arrest in the exercise of their functions as ORG members or when travelling on ORG business , whether this is inside or outside of their national territory . If they are not active within this meaning or not travelling on ORG business , the national regime shall apply within their country .", "b. The terms ‘ in the exercise of their ORG include all official duties discharged by ORG representatives and substitutes in the member GPE on the basis of a decision by a competent ORG body and with the consent of the appropriate national authorities .", "c. In case of doubt , ORG shall decide if ORG activities took place in the exercise of their functions.’ ”", "Article CARDINAL of the LAW on Privileges and Immunities of ORG ( DATE ) provides :", "“ During the sessions of the ORG , its members shall enjoy :", "( a ) in the territory of their own ORG , the immunities accorded to members of their ORG ;", "( b ) in the territory of any other member ORG , immunity from any measure of detention and from legal proceedings .", "Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the ORG .", "Immunity can not be claimed when a member is found in the act of committing an offence and shall not prevent the ORG from exercising its right to waive the immunity of CARDINAL of its members . ”", "Rule CARDINAL of the Rules of Procedure of ORG , concerning the waiver of parliamentary immunity , states :", "“ CARDINAL . In the exercise of its powers in respect of privileges and immunities , ORG shall seek primarily to uphold its integrity as a democratic legislative assembly and to secure the independence of its members in performance of their duties .", "Any request addressed to the President by a competent authority of a member ORG that the immunity of a member be waived shall be announced in ORG and referred to the committee responsible .", "Any request addressed to the President by a member or a former member to defend privileges and immunities shall be announced in ORG and referred to the committee responsible .", "The member or former member may be represented by another member . The request may not be made by another member without the agreement of the member concerned .", "As a matter of urgency , in circumstances where a member is arrested or has his freedom of movement curtailed in apparent breach of his privileges and immunities , the President , after having consulted the chairman and rapporteur of the committee responsible , may take an initiative to assert the privileges and immunities of the member concerned . The President shall communicate his initiative to the committee and inform ORG . ”", "Parliamentary immunity is not a homogeneous notion . Most NORP states recognise CARDINAL categories of immunity for parliamentarians : firstly , the “ non - liability ” of parliamentarians in respect of judicial proceedings for opinions expressed and votes cast in the discharge of their parliamentary duties ; secondly , their “ inviolability ” or “ immunity in the strict sense ” , shielding them from all arrest , detention or prosecution for offences unrelated to their parliamentary duties without the consent of the ORG to which they belong . This comparative law study focuses on the latter aspect of parliamentary immunity ( see ORG Report on the regime of parliamentary immunity , DATE ) .", "The precise scope of the inviolability varies considerably from CARDINAL country to another . The very nature of this aspect of immunity results in a wide array of legal approaches to its implementation . In some GPE there is no such institution ( the GPE , GPE ) . In others its scope is very limited . For example , in the GPE inviolability covers civil matters only and MPs enjoy no particular protection in criminal matters and are treated like any other individual . In GPE and GPE parliamentary inviolability serves to prevent MPs from being arrested during sessions or on their way to or from ORG . It therefore affords them limited protection .", "That said , most of GPE Parties to the PERSON grant their MPs immunity from criminal prosecution during their term as MPs that goes beyond the exercise of parliamentary functions ( GPE , GPE and GPE DATE if the act does not clearly fall outside the ambit of their political activities – and GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) and/or protection against imprisonment or deprivation of liberty ( arrest or detention in all those countries which provide for immunity from prosecution , as well as GPE , GPE , GPE , GPE and GPE ) . In certain cases MPs are protected from body searches , house searches and interception of their communications ( GPE , GPE , GPE , GPE and GPE ) . Such proceedings or measures may be executed only with the consent of the assembly to which the MP belongs , except in GPE , where such decisions lie with the courts .", "In several GPE the scope of inviolability has been restricted , as witnessed by some recent constitutional reforms . In GPE , for example , since the constitutional reform of DATE , the ORG ’s authorisation is no longer necessary for criminal proceedings to be brought , but only for detention , arrest and other judicial supervision measures . A similar change came about in GPE when LAW no . CARDINAL of DATE did away with the need for the prior authorisation of ORG in order for criminal proceedings to be brought against an MP . In GPE , since the constitutional reform of DATE , senators may be placed under judicial investigation or criminal proceedings brought against them for acts not connected with votes cast or political opinions expressed in the course of their duties as senators .", "In GPE ’s GPE the practice is generally for a new parliament to lift immunity from prosecution for all offences ( with the exception of defamation of a political character ) at the start of the parliamentary term . The aim of this is to protect the reputation of each MP , by ensuring that they attract less media attention if proceedings are brought against them .", "As to the scope of parliamentary inviolability ratione materiae , that is to say the acts it covers , there is a general tendency in the GPE Parties to the LAW for cases of flagrante delicto to be excluded . In such cases the prior authorisation of the ORG concerned is not required , but even this does not necessarily prevent ORG from examining the matter and subsequently requesting the suspension of the proceedings or the custodial measures ( GPE and GPE , for example ) . In some countries the law excludes certain types of act from inviolability , or the criterion may be the severity of the penalty incurred ( LAW excludes , in certain circumstances , deliberate offences punishable with imprisonment for DATE ) .", "The duration of parliamentary inviolability also varies from CARDINAL country to another . Some countries extend parliamentary immunity to criminal proceedings brought prior to the ORG ’s election ( GPE , GPE , GPE , GPE , GPE and GPE ) . In other countries , even if parliamentary authorisation is not required in order for proceedings initiated prior to the MP ’s election to be continued , ORG may , of its own motion or at the request of the interested party , request the suspension of the proceedings or the waiving of restrictive measures during the MP ’s term of office ( GPE , GPE and GPE ) .", "Parliamentary immunity may be lifted in most countries . The procedure for lifting immunity is generally the same . It is usually provided for in ORG . It is set in motion by a proposal or a request for authorisation by the competent public authority ( in most cases ORG ) , the injured party or the parliamentarian concerned . The request is transmitted to the Speaker of the ORG , either directly or in certain cases through another authority ( the Minister of ORG , the Prime Minister ) , then examined by a special or ad hoc parliamentary committee , which gives an opinion after hearing the MP concerned . It is then for the full ORG to decide , with or without a debate , in private or in public , whether or not to lift immunity . The possibility of appealing against a decision of the ORG to lift immunity exists in very few countries ( GPE and GPE ) .", "The possibility for MPs to waive their own parliamentary immunity is not widespread ( GPE and GPE ) and is sometimes limited to minor offences ( summary offences in GPE ) or to specific offences ( defamation in GPE and GPE ) . Under GPE ’s LAW MPs have the right to consent to criminal proceedings . In GPE LAW gives MPs the right to consent in writing to be prosecuted or arrested .", "In most of ORG no provision is made for MPs to forgo their immunity of their own free will because immunity is a privilege granted not to MPs on an individual basis but to ORG , to guarantee its smooth operation . In GPE provisions governing immunity are traditionally a matter of public policy and MPs can not renounce it . Any act that violates parliamentary immunity is considered null and void . The question of immunity must be raised by a judge . A similar approach has been adopted in ORG , where renunciation of immunity has no legal effect .", "This comparative presentation does not reveal any uniform pattern of existing parliamentary practice . It is worth noting , however , that a majority of NORP countries have recognised parliamentary immunity and incorporated it in their constitutional systems as an essential factor in the smooth functioning of the legislature .", "There are nevertheless marked differences in the nature and scope of the protection inviolability offers MPs . They reflect the different political and historical experiences of the GPE , and often illustrate the needs that underlie inviolability . It would appear that the scope of this privilege , which is considered as an inextricable part of the separation of powers , the autonomy of ORG or the protection of the parliamentary opposition , is defined in each ORG in keeping with the degree of autonomy necessary for ORG to be able to fulfil its duties ." ]

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[ "6" ]

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[ "The applicants are NORP nationals residing in the hamlet of PERSON in the GPE region .", "The first to fifth applicants are members of an extended family residing in a house owned by the first applicant ( the GPE family house ) . This house was built by the family in DATE .", "The remaining applicants are members of an extended family residing in a house constructed by the sixth applicant ( the PERSON - Vakiv family house ) . This house was built by him in DATE . It is unclear whether a permit for construction of this house was obtained in DATE . Subsequently the house was officially registered , to which a property certificate of DATE is witness .", "The applicants ' houses are located in Vilshyna hamlet , administratively a part of ORG village , GPE , GPE . The village is located in the FAC coal - mining basin .", "In DATE the ORG began building , and in DATE put into operation , the Velykomostivska No . CARDINAL coal mine , whose spoil heap is located QUANTITY from the GPE family house . In DATE this mine was renamed the GPE mine of ORG ( “ the mine ” ; Шахта « PERSON CARDINAL « Львіввугілля ORG ) . In DATE a decision was taken to close the mine as unprofitable . The closure project is currently under way .", "In DATE the ORG opened the ORG coal processing factory ( “ the factory ” ; Центрально-збагачувальна фабрика « PERSON ) in the vicinity of the hamlet , initially managed by ORG . In DATE the factory was leased out to ORG ( ORG Львівсистеменерго GPE ) . Subsequently the PERSON was succeeded by ORG . In DATE a decision was taken to allow the factory to be privatised . It is not clear whether the factory has already been privatised .", "NORP In the course of its operation the factory has piled up a CARDINAL spoil heap QUANTITY from the GPE family house and QUANTITY from the ORG family house . This spoil heap was not subject to privatisation and remained ORG property .", "According to a number of studies by governmental and nongovernmental entities , the operation of the factory and the mine has had adverse environmental effects .", "NORP In particular , in DATE the ORG ( “ the ORG ” ; Виконавчий комітет GPE районної ради ) noted that the mine 's and the factory 's spoil heaps caused continuous infiltration of ground water , resulting in flooding of certain areas .", "According to an assessment commissioned by ORG , jointly with the ORG geological company ( GPE комітет GPE по геології та використанню надр ; NORP геологічне підприємство « Західукргеологія ORG ) in DATE , the factory was a major contributor to pollution of the ground water , in particular on account of infiltration of water from its spoil heap . The authors of the assessment contended , in particular , that :", "“ All the coal - mining industry operational in the region for DATE has been negatively affecting the environment : spoil heaps from the mines and the coal - processing factory have been created , from which dust with a high concentration of toxic components spreads into the atmosphere and the soil ... systems of water drainage of the mines ... and cesspools ... of the coal - processing factory are sources of pollution of surface and underground waters ...", "Rocks from the spoil heaps contain a variety of toxic heavy metals , leaching of which results in pollution of soils , surface and underground waters ...", "Very serious polluters ... are cesspools of mining waters and factory tailing ponds ... , which in the event of the slightest disturbance of the hydro - insulation cause pollution of surface and ground waters ...", "The general area of soil subsidence is QUANTITY ... the deepest subsidence ( QUANTITY ) corresponds to areas with the most mining activity ...", "During construction of the water inlets ... deep wells were drilled which reached those [ mineralised ] waters . All this inevitably affected the health of people living in the area , first of all the children ...", "Extremely high pollution levels ... were found in the hamlet of PERSON , not far from the coal - processing factory and mine no . CARDINAL spoil heaps , in the wells of Mr T. and Mr Dubetskyy . We can testify that even the appearance of this water does not give grounds to consider it fit for any use . People from this community should be supplied with drinking - quality water or resettled ... ”", "NORP In DATE similar conclusions were proposed in a white paper published by ORG .", "On DATE ORG ( “ the Sanitary Service ” ; PERSON міська санітарноепідеміологічна служба ) recorded a CARDINAL excess of dust concentration and a CARDINAL excess of soot concentration in ambient air samples taken QUANTITY from the factory 's chimney .", "On DATE ORG sampled water in the Vilshyna hamlet wells and found it did not meet safety standards . In particular , the concentration of nitrates exceeded the safety limits by three- to CARDINAL - fold , the concentration of iron by five- to CARDINAL - fold and that of manganese by nine- to CARDINAL - fold .", "On DATE ORG ( PERSON екології та природних ресурсів ) acknowledged in a letter to the applicants that mining activities were of major environmental concern for the entire FAC region . They caused soil subsidence and flooding . Heavy metals from mining waste penetrated the soil and ground waters . The level of pollution of the soil by heavy metals was up to CARDINAL times the permissible concentration , in particular in GPE , especially on account of the operation of the factory and the mine .", "On DATE factory officials and ORG ( PERSON гірничо-технічна інспекція з нагляду у вугільній промисловості ) recorded infiltration of water from the foot of the factory 's spoil heap on the side facing Vilshyna hamlet . They noted that water flowing from the heap had accumulated into QUANTITY of brownish salty lake .", "In DATE the GPE company published a study entitled “ Hydrogeological Conclusion concerning the Condition of Underground Waters in LOC ” , according to which in the geological composition of the area there were water - bearing layers of sand . The study also indicated that even before the beginning of the mining works the upper water - bearing layers were contaminated with sodium and compounds thereof as well as iron in the river valleys . However , exploitation of the mines added pollution to underground waters , especially their upper layers .", "On DATE the Lviv Chief Medical Officer for Health ( NORP державний санітарний лікар ORG області ) noted that air samples had revealed dust and soot exceeding the maximum permissible concentrations QUANTITY from the factory , and imposed administrative sanctions on the person in charge of the factory 's boiler .", "In DATE Dr PERSON of ORG reported that the concentration of soot in ambient air samples taken in GPE was CARDINAL times higher than the maximum permissible concentration under domestic standards . The well water was contaminated with mercury and cadmium , exceeding domestic safety standards CARDINAL - fold and fourfold respectively . According to the report , the hamlet inhabitants were exposed to higher risks of cancer and respiratory and kidney diseases .", "The applicants first submitted that their houses had sustained damage as a result of soil subsidence caused by mining activities and presented an acknowledgement of this signed by the mine 's director on DATE . According to the applicants , the mine promised to pay for the repair of their houses but never did so .", "Secondly , the applicants alleged that they were continuing to suffer from a lack of drinkable water . They contended that until DATE the hamlet had no access to a mains water supply . Using the local well and stream water for washing and cooking purposes caused itching and intestinal infections . The applicants presented CARDINAL photographs reportedly of the water available to them near their home . CARDINAL photo entitled “ water in a well in Vilshyna hamlet ” pictured a bucket full of yellow - orange water near a well . The second photo entitled “ a stream near the house ” pictured a small stream of a bright orange colour . The third photo entitled “ destruction of plant life by water from the coal - processing factory waste heap ” depicted a brownish lake with many stumps and several dead bushes in the middle of it .", "The applicants further contended that from DATE PERSON had been bringing , at its own expense , drinkable water into the hamlet by truck and tractor . However , this water was not provided in sufficient quantity . In evidence of this statement , the applicants presented a photograph picturing CARDINAL large buckets of water and entitled “ DATE water supply ” .", "The applicants further alleged that the water supply was not always regular . In support of this argument they produced letters from ORG dated DATE and DATE , acknowledging recent irregularities in supply of drinking water .", "Thirdly , some of the applicants were alleged to have developed chronic health conditions associated with the factory operation , especially with air pollution . They presented medical certificates which stated that PERSON and ORG were suffering from chronic bronchitis and emphysema and that PERSON had been diagnosed with carcinoma .", "Fourthly , the applicants contended that their frustration with environmental factors affected communication between family members . In particular , lack of clean water for washing reportedly caused difficulties in relations between spouses . Younger family members sought to break away from the older ones in search of better conditions for their growing children .", "The applicants , however , did not relocate . They alleged that they would not be able to sell houses located in a contaminated area or to find other sources of funding for relocation to a safer community without ORG support . In evidence , the applicants presented a letter from a private real estate agency , PERSON , dated DATE , stating the following :", "“ since in Vilshyna hamlet ... there has been no demand for residential housing for DATE because of the situation of this hamlet in technogenically polluted territory and subsidence of soil on its territory ... it is not possible to determine the market value of the house . ”", "In DATE ORG ordered the factory to develop a plan for management of the buffer zone .", "On DATE ORG found that the factory had failed to comply with its order and ordered suspension of its operation . In spite of this measure , the factory reportedly continued to operate , with no further sanctions being imposed on its management .", "On DATE and DATE ORG for ORG ( “ ORG ” ; PERSON комісія з питань техногенноекологічної безпеки та надзвичайних ситуацій ) ordered a number of measures to improve water management and tackle soil pollution in the vicinity of the factory .", "On DATE ORG ( ORG обласна державна адміністрація ) noted that the overall environmental situation had not improved since ORG decision of DATE , as no funds had been allocated by ORG for implementation of the relevant measures .", "On DATE ORG found that the mine had failed to comply with its instruction of DATE as to the development of a plan for management of the buffer zone , and ordered suspension of its operation . However , the mine reportedly continued to operate .", "On DATE the ORG ( NORP гігієни та медичної екології ім. О. М. Марзеєва АМН України ) developed a management plan for the factory buffer zone . The authors of the report acknowledged that the factory was polluting the air with nitrogen dioxide , carbon oxide , sulphuric anhydride and dust . They noted , however , that according to their studies ambient air samples taken QUANTITY from the factory did not contain excessive pollution . The plan provided for implementation of a number of measures aimed at improvement of the hydro - insulation of the spoil heap , as well as reduction of its height to QUANTITY . The authors concluded that in view of such measures it was possible to establish a general buffer zone at QUANTITY for the entire factory site .", "Later in DATE ORG ( GPE охорони здоров'я ) approved ORG plan , on an assumption that the height of the spoil heap would be reduced by DATE .", "On DATE ORG fined the factory director for failing to implement the measures in the factory buffer zone management plan .", "On DATE ORG noted that QUANTITY houses , including those of the applicants , were located within the factory spoil heap CARDINAL-metre buffer zone , in violation of applicable sanitary norms . It further allowed the GPE company to resettle the inhabitants and to have these houses demolished . The ORG further obliged the company director to provide the applicants with housing by DATE . This decision was not enforced .", "NORP In DATE ORG amended its decision and allowed the residents to keep their former houses following resettlement for recreational and gardening use .", "On DATE ORG noted that CARDINAL families lived within the limits of the factory buffer zone and commissioned ORG and local executive authorities to ensure their resettlement in DATE . The names of the families appear not to have been listed .", "In DATE the applicants enquired of ORG when they would be resettled and received no answer .", "In DATE ORG included resettlement of CARDINAL families ( names not listed ) from the factory sanitary security zone in their DATE activity plan , indicating the ORG budget as the funding source and referring to ORG decision of DATE .", "On DATE ORG noted that its decision of DATE remained unenforced and ordered ORG , ORG and the factory to work together to ensure the resettlement of families from the factory spoil heap buffer zone by DATE .", "In DATE the applicants , along with other village residents , complained to the President of GPE about the non - enforcement of the decisions concerning their resettlement . ORG redirected their complaint to ORG and ORG and ORG for consideration .", "On DATE ORG and ORG informed the Vilshyna inhabitants in response to their complaint that it had proposed that the ORG of Ministers ensure prompt resettlement of the inhabitants from the factory buffer zone in accordance with the decision of ORG of DATE .", "On DATE ORG informed the applicants that it had repeatedly requested the Prime Minister and ORG to provide funding for the enforcement of the decision of DATE .", "On DATE the GPE family instituted civil proceedings in ORG ( Місцевий суд м. Червонограда ) seeking to oblige the factory to resettle them from its buffer zone . Subsequently ORG was summoned as a codefendant .", "The first hearing was scheduled for DATE . Subsequent hearings were scheduled for CARDINAL DATE and DATE , CARDINAL and DATE , CARDINAL May , DATE and DATE , DATE and DATE , and CARDINAL November , DATE , DATE and DATE . On CARDINAL occasions hearings were adjourned on account of a defendant 's absence or following a defendant 's request for an adjournment .", "On DATE ORG found that the plaintiffs resided in the mine 's buffer zone and ordered ORG holding it to resettle them . It further dismissed the applicants ' claims against the factory , finding that their house was outside its CARDINAL buffer zone .", "This judgment was not appealed against and became final .", "On DATE ORG initiated enforcement proceedings .", "On DATE the Bailiffs fined the mine 's director for failing to ensure the enforcement of the judgment . The latter appealed against this decision .", "On DATE the director informed the Bailiffs that the mine could not comply with the judgment . It neither had available residential housing at its disposal nor was it engaged in constructing housing , as it had received no appropriate allocations from the ORG budget .", "The judgment remains unenforced to the present date .", "On DATE the PERSON family , similarly to the GPE family , instituted civil proceedings at ORG seeking to be resettled outside the factory buffer zone .", "Subsequently the factory was replaced by DATE as a defendant in the proceedings .", "The first hearing was scheduled for DATE . Subsequent hearings were scheduled for CARDINAL , DATE and DATE , and CARDINAL and DATE , CARDINAL May , DATE and DATE .", "On DATE ORG dismissed the applicants ' claims . The court found , in particular that , although the plan for management of the factory buffer zone was still under way , there were sufficient studies to justify the CARDINAL zone . As the plaintiffs ' house was located outside it , the defendant could not be obliged to resettle them . Moreover , the defendant had no funds to provide the applicants with new housing . The court found the decision of DATE concerning the applicants ' resettlement irrelevant and did not comment on subsequent decisions concerning the matter .", "On DATE the applicants appealed . They maintained , in particular , that the law provided that the actual concentration of pollutants on the outside boundaries of the zone should meet applicable safety standards . In their case , the actual level of pollution outside the zone exceeded such standards , as evidenced by a number of studies , referring to the factory operation as the major source of pollution . Furthermore , the decision of ORG of DATE could not have been irrelevant , as it remained formally in force .", "On DATE ORG ( GPE суд GPE області ) upheld the previous judgment and agreed with the trial court 's reasoning . In response to the applicants ' arguments concerning the actual pollution level at their place of residence , the court noted that the hamlet was supplied with imported water and that in any event , while the applicable law included penalties against polluters , it did not impose a general obligation on them to resettle individuals .", "On DATE the applicants appealed on points of law , relying on essentially the same arguments as in their previous appeal .", "On DATE ORG ( GPE суд ORG області ) dismissed the applicants ' request for leave to appeal on points of law .", "Relevant provisions of the LAW read as follows :", "“ To ensure ecological safety and to maintain the ecological balance on the territory of GPE , to overcome the consequences of the GPE catastrophe — a catastrophe of global scale , and to preserve the gene pool of the NORP people , is the duty of the ORG . ”", "“ Everyone has the right to an environment that is safe for life and health , and to compensation for damages inflicted through the violation of this right ... ”", "According to LAW , private and public entities and individuals could be held liable under the law for failure to comply with lawful decisions of bodies of regional self - government ( which included executive committees of district councils ) .", "Subsequent legislation concerning local self - government did not envisage the existence of such a body as an executive committee of a district council .", "Relevant provisions of the PERSON “ On Waste ” read as follows :", "“ The ORG is the owner of waste produced on ORG property ... On behalf of the ORG the management of waste owned by the ORG shall be carried out by ORG . ”", "DATE . The above PERSON introduced a new mechanism for payment and amortisation of companies ' debts for energy resources . It also introduced a special register of companies involved in debt payment and amortisation under its provisions . A company 's presence on that register suspends any enforcement proceedings against it ; domestic courts shall also dismiss any request to initiate insolvency or liquidation proceedings against the company .", "Relevant provisions of the Order of the Ministry of Health read as follows :", "“ CARDINAL . Industrial , agricultural and other objects , which are sources of environmental pollution with chemical , physical and biological factors , in the event that it is impossible to create wasteless technologies , should be separated from residential areas by sanitary security zones .", "...", "On the exterior boundary of a sanitary security zone which faces a residential area , concentrations and levels of harmful substances should not be greater than those set down in the relevant hygiene standards ( maximum permissible concentrations , maximum permissible levels ) ...", "...", "In the event the studies do not confirm the statutory sanitary security zone or its establishment is not possible under particular circumstances , it is necessary to take a decision concerning a change of production technology , which would provide for decrease in emission of harmful substances into the atmosphere , its re - profiling or closure .", "Supplement No . CARDINAL , GPE classification of enterprises , production facilities and buildings and their required sanitary security zones :", ".....", "A sanitary security zone of QUANTITY [ shall surround the following facilities ] :", "....", "Spoil heaps of mines which are being exploited , inactive spoil heaps exceeding QUANTITY in height which are susceptible to combustion ; inactive spoil heaps exceeding QUANTITY in height which are not susceptible to combustion .", "A sanitary security zone of QUANTITY [ shall surround the following facilities ] :", "...", "NORP ... coal - processing factories using wet treatment technology", "NORP ... inactive spoil heaps of mines , QUANTITY in height and not susceptible to combustion . ”" ]

[ "8" ]

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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 CARDINAL DATE . They had no children from the marriage . On DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant contacted ORG on DATE and was told that he would receive no further correspondence on the matter . 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 was born in DATE and lives in GPE .", "The applicant has lived in a flat in a residential quarter of GPE since DATE .", "Since DATE ORG has allowed licensed LOC such as bars , pubs and discotheques to open in the vicinity of her home , making it impossible for people living in the area to sleep .", "Local residents first complained about vandalism and noise in the locality before DATE .", "NORP In view of the problems caused by the noise , ORG resolved on DATE not to permit any more night clubs to open in the area . However , the resolution was never implemented and new licences were granted .", "In DATE ORG commissioned a report by an expert . The expert found that the noise levels were unacceptable and exceeded permitted levels . At TIME on DATE they were in excess of CARDINAL dBA Leq ( decibels ) , ranging from CARDINAL to CARDINAL LOC .", "In a report of CARDINAL DATE the police informed ORG that nightclubs and discotheques in the sector in which the applicant lived did not systematically close on time . They said that they were able to confirm that the local ORG complaints were founded .", "On DATE ORG approved a new bylaw on noise and vibrations , which was published on DATE in ORG province . LAW bylaw lays down that in a family residential area ( such as the one in which the applicant lives ) external noise levels were not to exceed CARDINAL dBA Leq TIME of the bylaw defines “ acoustically saturated zones ” as areas in which the large number of establishments , activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance .", "Lastly , the bylaw specified the conditions that had to be satisfied for an area to be designated an “ acoustically saturated zone ” ( zona acústicamente saturada ) and the consequences of designation , which included a ban on new activities ( such as nightclubs and discotheques ) that led to acoustic saturation .", "Following a resolution of ORG sitting in plenary session on DATE , which was published in ORG of the GPE province on DATE , the area in which the applicant lived was designated an acoustically saturated zone .", "Nevertheless , on DATE ORG granted a licence for a discotheque to be opened in the building she lived in . The licence was subsequently declared invalid by a judgment of ORG of DATE .", "NORP In order to determine whether the area should be designated an acoustically saturated zone , ORG took various sound - level readings to monitor acoustic pollution there . In each of its reports the ORG laboratory indicated that the noise levels exceeded those permitted by the bylaw .", "The applicant was exasperated by the situation , which prevented her from sleeping and resting and caused her insomnia and serious health problems . On DATE she lodged a preliminary claim with ORG in which she relied on LAW ( right to life and to physical integrity ) and LAW ( right to the privacy and inviolability of the home ) . She sought MONEY ( MONEY ) for the damage she had sustained and the cost of installing double glazing .", "Having received no reply from the authorities and in accordance with LAW ( Law no . CARDINAL/CARDINAL ) , the applicant lodged an application for judicial review with ORG on DATE , alleging a violation of ORG CARDINAL and CARDINAL LAW .", "On DATE ORG lodged its written observations . It submitted that the application was premature and should be declared inadmissible , as the ORG could still find a solution . This preliminary objection was dismissed in a decision of DATE .", "On DATE the representative of state council ’s office argued that the court should find in favour of the applicant . He considered that there had been a violation of Articles CARDINAL and CARDINAL LAW and that the applicant ’s claim for damages was justified .", "NORP In a judgment of DATE , delivered after an adversarial hearing in public , ORG dismissed the application for judicial review . It found that the readings had been taken in the entrance hall to the building , not in the applicant ’s flat , and could not entail a violation of ORG CARDINAL and CARDINAL LAW ; it also noted that the medical expert ’s report stated only that the applicant had been receiving treatment for insomnia for DATE , without indicating the length of or reason for such treatment .", "On DATE the applicant lodged an amparo appeal with ORG . Relying on Articles CARDINAL ( equality ) and CARDINAL ( right to a fair hearing ) of the LAW , she complained that ORG had not given sufficient reasons in its judgment or assessed the evidence . She also complained under LAW and CARDINAL LAW of a violation of her rights to life , physical and mental integrity , privacy and the inviolability of the home .", "In a decision of CARDINAL DATE , ORG declared the amparo appeal admissible and invited the applicant , the representative of state council ’s office and ORG to submit their observations . On DATE , it summoned the parties to a hearing on the merits on DATE .", "At the hearing on DATE , which was attended by all the parties , the applicant repeated her factual and legal submissions , stressing that there had been a violation of her fundamental rights .", "ORG raised a number of preliminary objections . It further submitted that the appeal was confined to the decision of ORG . With regard to the alleged violation of ORG CARDINAL and CARDINAL LAW , it stated that there was no evidence of noise levels inside the applicant ’s home and that the authority concerned should not bear sole responsibility for the noise to which the applicant had allegedly been exposed , as it had very limited means at its disposal to combat it .", "The representative of state council ’s office agreed with the applicant that there had been a violation of ORG CARDINAL and CARDINAL LAW . He argued that the amparo appeal should be regarded as hybrid , since it both accused ORG of failing to defend the fundamental rights set out in LAW and CARDINAL of the LAW and challenged the Valencia High Court of ORG ’s decision , alleging a violation of ORG CARDINAL and CARDINAL of the LAW also .", "As regards the violation of ORG CARDINAL and CARDINAL LAW , the representative of state council ’s office said that , in the light of the judgments of ORG , in particular in the case of PERSON NORP v. GPE , there had been a violation of the applicant ’s right to the inviolability of her home , as her home environment had been rendered unfit for ordinary everyday living . On the basis of the ORG ’s case - law , he sought a broader definition of the constitutional concept of the “ home ” .", "As regards noise levels inside the applicant ’s home , the representative of state council ’s office considered that the burden of proof had been reversed , as it was clear in the instant case that officials from ORG had confirmed on a number of occasions that the maximum permitted noise levels were being exceeded . Consequently , he did not consider it necessary to require such proof from the applicant .", "In a judgment of CARDINAL DATE , which was served on DATE , ORG dismissed the appeal after also dismissing ORG preliminary objections . It ruled that the amparo appeal was hybrid in nature , that is to say that it alleged a violation of ORG CARDINAL and CARDINAL LAW by ORG and a breach of ORG DATE LAW by ORG .", "As regards the alleged violation of ORG DATE , ORG began by noting that it was not entitled to substitute ORG assessment of the evidence with its own . As to the applicant ’s allegation that the judgment did not contain sufficient reasons , it noted that ORG decision could not be regarded as arbitrary or unreasonable . It further observed that the applicant had not identified the decisions on which she relied in alleging discrimination . Thus , there was no evidence of any violation of ORG DATE .", "With regard to the alleged violation of ORG CARDINAL ( right to life and physical integrity ) and CARDINAL § CARDINAL ( right to privacy and to the inviolability of the home ) of the LAW , ORG referred to the decisions in which ORG had held that , in cases of exceptional gravity , repeated damage to the environment could infringe the right to respect for private and family life under LAW , even if did not endanger health . ORG held , however :", "“ ... there may only be a violation of LAW if the level of acoustic saturation to which a person is exposed as a result of an act or omission of a public authority causes serious and immediate damage to his or her health . ”", "ORG found that that test had not been satisfied in the case before it and pointed out :", "“ ... even though the appellant maintains that the noise levels to which she was exposed turned her into an insomniac , the only evidence she has adduced is a certificate stating that she was admitted to hospital and saw a doctor , without any indication of the period for which she had been suffering from lack of sleep or the cause thereof . ... ”", "The Constitutional Court found that the applicant had not established a direct link between the noise and the damage she had sustained .", "As to the allegation of a violation of LAW , the Constitutional Court further found that she had not established the existence of a nuisance in her home that amounted to a violation of the constitutional provision . It stated :", "“ ... the appellant has confined herself to making a general complaint by stating that the origin of the noise was diffuse and not restricted to a single source of production , and that the acoustic saturation resulted from a combination of noises . ... On the contrary , her entire case is based on a few sound - level readings taken inside her home which gave disparate results ... and do not establish that there has been a violation of the right relied on . ... ”", "By way of conclusion , ORG dismissed the amparo appeal on the following ground :", "“ Consequently , as regards the alleged violation of the rights relied on the amparo appeal must be dismissed , as the appellant has failed to prove the existence of a genuine effective breach of fundamental rights attributable to ORG . ”", "That judgment was delivered by ORG sitting as a full court . However , CARDINAL judges expressed concurring opinions . The first said that the judgment restricted the free development of the personality at home . He considered that the conditions that had to be satisfied for there to be a violation of fundamental rights in the case under consideration were unreasonable and he defended the need to speak of a triple layer of constitutional protection , ranging from the right to physical and moral integrity ( LAW ) to an environment that was suitable for personal development ( LAW ) , via the right to privacy in the home ( LAW ) .", "The second judge pointed out in his concurring opinion that there was a preliminary problem that had not been adequately dealt with , namely the degree to which the relevant authority was required to provide the requested protection . Determining the extent of that obligation was a prerequisite to establishing whether or not there existed a causal link between the authority ’s failure to act and the alleged violation . The authorities were obliged to exercise their power when the breach of the fundamental rights attained a certain level of gravity .", "The relevant provisions of the LAW are as follows :", "“ The provisions relating to the fundamental rights and freedoms recognised under LAW shall be construed in accordance with LAW and the international treaties and agreements which GPE has ratified in that sphere . ”", "“ Everyone shall have the right to life and to physical and mental integrity . ... ”", "“ The home shall be inviolable . ... ”", "“ Everyone shall have the right to enjoy an environment suitable for personal development and the duty to preserve it .", "... ”", "“ Every citizen shall be entitled to seek protection of the freedoms and rights recognised in LAW by bringing an action in the ordinary courts under a procedure designed to ensure priority and expedition and , in appropriate cases , by an appeal ( recurso de amparo ) to LAW ... ”", "Section CARDINAL , which was repealed by LAW of DATE ( Law no . CARDINAL ) , read as follows :", "“ ... [ a]n application for judicial review may be brought in accordance with the procedural rules set out in this section in respect of decisions of the public authorities that are subject to administrative law and liable to affect the exercise of the fundamental rights of the person ... ”", "The relevant parts of LAW reads :", "“ CARDINAL . An amparo appeal for violations of rights and guarantees amenable to constitutional protection ... will lie only if :", "...", "( c ) the party relying on the alleged violation formally pleads it in the relevant proceedings after becoming aware of its occurrence . ”", "The relevant provisions of the bylaw provide :", "“ Permitted external noise - reception levels shall be determined by reference to the main user of each of the areas marked on the city development plan and shall not exceed :", "Maximum reception levels :", "...", "Multiple family residence :", "TIME ( from TIME ) : PERCENT ( A )", "Night - time ( from TIME ) : PERCENT ( A )", "... ”", "“ CARDINAL . Zones that are acoustically saturated by additional causes are areas or places in which the large number of establishments , activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance .", "NORP An area may be designated an acoustically saturated zone ( ORG ) if , though individual activities are compliant with the levels set out in this bylaw , the level of disturbance due to external noise as referred to in DATE is exceeded twice - weekly in consecutive DATE , or CARDINAL times intermittently over a period of DATE , and exceeds PERCENT ( A ) . ”", "The relevant parts of the report drawn up by PERSON , a professor of applied physics , on the sound - level readings taken in the district in which the applicant lived in GPE read as follows :", "“ The results obtained from measurements taken by ORG acoustic laboratory over a period of DATE in the said area and measurements taken by other bodies showed that ambient noise levels in this area , in particular at TIME and DATE ( especially TIME ) are extremely high . At these periods in the area concerned the TIME equivalent sound levels ( PERSON ) frequently exceed CARDINAL dB ( A ) and the maximum corresponding levels exceed PERCENT ( A ) .", "As a result , we can say that noise levels in dwellings in this urban area are intolerably high at TIME - time and , consequently , detrimental to the health and well - being of the residents .", "This conclusion is based on the fact that , even with the windows closed ( including in the height of DATE ) , indoor noise levels are very high . It should be noted that under the current regulations ( building norm FAC ) the minimum insulation requirement for the frontage of buildings is CARDINAL dB ( A ) . In practice , that figure is never attained and is generally in the region of PERCENT ( A ) .", "Consequently , in these circumstances , night - time noise levels inside the dwellings , for example in bedrooms overlooking the street , can be estimated at in the region of PERCENT ( A ) , with maximum levels reaching PERCENT ( A ) . We would point out that this is a general estimate and is made without the need for specific measurements to be taken inside the dwellings concerned .", "We should explain here that the difference CARDINAL ) is enormous . Thus , an increase from CARDINAL dB ( A ) does not represent a slight increase in noise ( as a layman might think ) but the doubling in intensity of the corresponding noise . An informed reading of this report is only possible if the meaning of the “ decibel ” unit used here is correctly understood . ”" ]

[ "8" ]

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[ "The first applicant , Mr PERSON , was born in DATE , PERSON PERSON was born in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE and PERSON PERSON in DATE . They live in GPE ( GPE ) .", "On DATE and DATE a land development plan ( GPE ) was adopted by referendum in GPE . According to that plan , the main part of a plot of land owned jointly by the applicants fell within a zone in which the construction of buildings was not authorised .", "By submissions dated DATE the first applicant lodged an objection with GPE which received these submissions on DATE . He contested the lawfulness of the land development plan and of the procedure by which it had been approved and requested that the plot of land in question be designated as building land .", "On DATE the Municipality of GPE dismissed the first applicant ’s objection . It found , in particular , that the applicants’ plot of land had not been classified as building land prior to the adoption of the land development plan either . The decision was issued and sent to the first applicant on DATE .", "On DATE ORG dismissed the complaint made by the first applicant on DATE about the municipality ’s decision . That decision was issued on DATE .", "By letter of DATE the first applicant informed ORG that he intended to pursue his complaint lodged on DATE regarding the ORG ’s decision in person , his counsel having informed him that his complaint had no sufficient prospects of success .", "On DATE ORG ( PERSON ) , having held a hearing on DATE in which it heard a witness and inspected the locus in quo , dismissed the ORG complaint . It noted that the first applicant , following doubts expressed by it regarding his standing in the proceedings , now brought the complaint both on his own behalf and on behalf of CARDINAL further joint owners ( CARDINAL of whom are applicants before this Court ) . The latter had also authorised the previous proceedings instituted by the first applicant alone ( a written authorisation dated DATE was submitted in the hearing ) . ORG found that the municipality ’s decision not to incorporate the applicants’ plot of land into an area designated as building land had not been arbitrary , particularly when compared to the classification of other plots of land in the land development plan . The applicants’ plot of land had not previously been in an area classified as building land and was not suitable for construction for lack of water installations .", "By submissions dated DATE , which were received at ORG ) on DATE , the applicants lodged a constitutional complaint with ORG in respect of the decision taken by ORG . Relying on the principles of legality and proportionality , the prohibition of arbitrariness and the right to property , they argued , in particular , that their plot of land , designated as non - building land , had been treated less favourably than other plots of land in a comparable situation .", "The final deliberations in private fixed for DATE had to be cancelled as , following the withdrawal of several judges , there was an insufficient number of judges available to hear the case .", "NORP In DATE and DATE both the first applicant and GPE informed ORG that they had entered into negotiations following which the constitutional complaint might later be withdrawn . ORG deliberations in private fixed for DATE were accordingly cancelled . On DATE the Municipality informed that court that it had included a part of the applicants’ plot of land in the area designated as building land . The applicants did not , however , withdraw their constitutional complaint thereupon .", "By submissions dated DATE and CARDINAL DATE the ORG new counsel requested ORG to join the ORG complaint to that of PERSON and to hold a hearing . They further submitted that their right to an independent and impartial tribunal established by law under LAW had been breached in that the relevant provisions of LAW ( Gemeindegesetz ) did not clearly determine the body competent to decide on land development plans and as the citizens had adopted the plan . The land development plan of GPE was void as it had been set up in violation of the provisions for the protection of property . Furthermore , their right to property under LAW no . CARDINAL had been breached as the relevant provisions of LAW ( Baugesetz ) were not a sufficiently clear legal basis for the adoption of land development plans which interfered with the right to property . The adoption of the land development plan at issue had excluded the applicants’ plot of land from the area designated as building land and amounted to an illegal and arbitrary restriction of the use of their property without payment of compensation .", "On DATE ORG , having deliberated in private , decided to adjourn its decision in view of the voluminous observations and requests to take evidence submitted by the applicants’ counsel DATE .", "On DATE ORG , having deliberated in private , refused to join the ORG complaint to that of PERSON and , taking into consideration the ORG request made DATE , adjourned its decision and decided to hold a public hearing .", "On CARDINAL DATE ORG held a public hearing . In its deliberations ( in private ) , it then decided to dismiss as inadmissible the applicants’ request to declare void the vote of CARDINAL and DATE in GPE as the applicants had failed to lodge a separate complaint in respect of that vote with the Government . It further rejected the remainder of the applicants’ complaints as ill - founded ( case no . PERSON ) .", "ORG found that there had been no violation of the applicants’ constitutional right to equality or of the prohibition of arbitrariness as it had not been unreasonable not to include the applicants’ entire plot of land in an area designated as building land . Nor had the applicants’ right to property been violated . The refusal to grant the applicants a privilege by not including their plot of land in an area designated as building land did not interfere with their property rights .", "On DATE ORG judgment was served on the applicants’ counsel .", "In a judgment adopted on DATE concerning a complaint brought by PERSON , ORG held that LAW had been breached in the proceedings before it ( file no . PERSON ) . ORG found that the length of the proceedings at issue , which equally concerned the land development plan of GPE and had been pending for DATE and DATE before it , had been excessive . The fact that PERSON had repeatedly asked to adjourn the proceedings shortly before the date fixed for the final deliberations did not justify the duration of the proceedings , in particular because ORG had remained inactive for a longer period of time after having held an oral hearing ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before 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 CARDINAL DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman .", "The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .", "The applicant ceased to be entitled to child benefit in DATE and therefore was not in receipt of child benefit at the time of his claim .", "The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was arrested on charges of a series of car thefts . In the prosecution ’s ensuing motion to have him detained on remand , the dangers of absconding , collusion and repetition of crime were referred to .", "The defence argued that there was no reasonable suspicion that the applicant had indeed committed an offence . Moreover , since he had a settled life in GPE , the applicant – who was the father of a minor child and had regular income out of which he was supporting his parents and was paying a mortgage DATE was unlikely to abscond . In another criminal case conducted against him , he had attended all the hearings and had never attempted to frustrate the procedure . In the instant case , all evidence having already been seized , it was not plausible that he would interfere with the witnesses or repeat any crime . Against this background , his pre - trial detention was not justified and should be substituted , if necessary at all , by a less coercive measure .", "On DATE ORG ordered the applicant ’s detention on remand , reiterating in essence the reasons in the prosecution ’s motion .", "On DATE ORG rejected the applicant ’s appeal . This court was satisfied that there was reasonable suspicion against the applicant . It pointed out that no actual assessment of that evidence could be done in the remand proceedings because that would amount to usurping the powers of the trial court . ORG moreover held that the fact that the applicant had made preparations to buy property abroad was sufficient to substantiate the danger of absconding . Moreover , since there was another prosecution under way , the court held that the applicant might have a criminal lifestyle , a predisposition to repetition of crime . The court went on to state that “ in the present phase of the proceedings , the controversies referred to by the defence are not capable of fully eliminating the reasonable suspicion ” of the applicant ’s having committed a crime .", "The applicant ’s pre - trial detention was repeatedly prolonged at the statutory intervals . In these proceedings , the arguments of the defence remained largely the same , and so did the findings of the courts . The applicant ’s requests for release , if necessary on bail , were to no avail .", "On DATE , CARDINAL and DATE and DATE the applicant complained to the authorities that he had not been granted access to the evidence underlying his detention . These complaints were all rejected , although the courts did not specify that such an access had actually been granted .", "Meanwhile , on DATE the applicant submitted to the authorities a psychiatric opinion , according to which he suffered from a personality disorder , including fear of crowds and of being locked up , which was susceptible to deterioration due to detention .", "A further expert opinion issued on DATE specified that the applicant had suffered a sexual assault from fellow inmates while in detention , which had aggravated his psychological imbalance .", "Meanwhile , a further prolongation order , valid until DATE , was issued on DATE . However , the applicant was not released on DATE , because the holding facility had received a mistyped notification ordering his detention until CARDINAL DATE rather than CARDINAL DATE . On DATE the first - instance court corrected its order of DATE . On appeal , on DATE ORG reversed the latter decision , holding that , although there had obviously been a typing mistake , the first - instance court could not correct the operative part of its order and that this matter was subject to a reversal within the jurisdiction of ORG . It further reiterated the consideration that no assessment of the evidence giving rise to the reasonable suspicion against the applicant could be done in the remand proceedings .", "On DATE the applicant filed a request for release . This was rejected by ORG . In his appeal , he stressed that his tolerance of detention had diminished on account of the psychological problems he had . On DATE ORG rejected the appeal , being satisfied that the applicant ’s condition could be properly treated within the penitentiary health system . In his further complaints , the applicant ’s lawyer emphasised that the applicant needed to be heavily medicated , because of which he could not be validly interrogated , and the resultant situation ran counter to both the applicant ’s rights and the interests of the investigation .", "NORP The applicant ’s pre - trial detention continued until DATE . The defence repeatedly made references to the absence of concrete elements underlying a reasonable suspicion against the applicant and to his personal circumstances not in the least warranting his continued detention . The applicant stated that the courts had rejected these arguments in rather stereotyped decisions .", "On CARDINAL DATE ORG replaced the applicant ’s detention with house arrest . It held that the danger of absconding had lessened to an extent that house arrest was then sufficient , especially in view of the indecent assault the applicant had suffered from fellow inmates . It also took into account the time that had elapsed , the applicant ’s settled family and personal circumstances , and the fact that his health had seriously deteriorated .", "On DATE the applicant ’s house arrest was lifted and replaced with a restriction on leaving GPE ( as of QUANTITY DATE , on leaving GPE ) . On DATE all restrictions on the applicant ’s personal liberty were lifted .", "The applicant submitted that an alleged accomplice , Mr Á. , although he had previously absconded , had no legal income or employment and had no minor children , had been released on bail in DATE – in the applicant ’s view simply due to the fact that , unlike him , Mr PERSON had confessed to the crime with which he was charged .", "A bill of indictment against the applicant and CARDINAL co - defendants was filed with ORG on DATE .", "The trial of the case is pending .", "Act no . ORG of DATE on LAW provides as follows :", "“ ( CARDINAL ) At the session the party [ that is , the prosecution ] having submitted the motion [ on ordering or prolonging pre - trial detention ] shall present the evidence substantiating the motion in writing or orally . Those present shall be granted the opportunity to examine – within the limits set forth in section CARDINAL – the evidence of the party having submitted the motion . If the notified party does not attend the session but had submitted his observations in writing , this document shall be presented by the investigating judge . ”", "“ ( CARDINAL ) Any person having the right to be present at an investigatory action may forthwith inspect the TIME taken .", "( CARDINAL ) The suspect , the counsel for the defence and the victim may inspect the expert opinion during the investigation as well , but they may only inspect other documents if this does not injure the interests of the investigation .", "( CARDINAL ) The suspect and the counsel for the defence shall be entitled to receive a copy of the documents they may inspect .", "( CARDINAL ) The copy of the documents produced , obtained , filed or attached in the course of the investigation and containing the testimony or personal data of the victim or the witness shall not indicate the personal data of either the victim or the witness . No copy may be issued of the draft decisions of the prosecutor or the investigating authority . No copy may be issued of the documents created in the course of communications between the prosecutor and the investigating authority pursuant to sections CARDINAL and CARDINAL , except for the documents that contain the legal standpoint of the prosecutor and the investigating authority in relation to the case DATE including particularly the document containing the prosecutor ’s instruction concerning the conduct of the investigation , provided that the specific investigation was conducted DATE provided that this does not interfere with the interests of the investigation . ”" ]

[ "5" ]

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

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[ "The applicant , ORG “ PERSON ” , is a NORP company that is registered in GPE . The company belongs to a private entrepreneur Mr PERSON , born in DATE and residing in GPE .", "Since DATE the applicant had been making plans for the construction of a building containing CARDINAL apartments on QUANTITY of land situated in the village of GPE , in LOC of the PERSON region . It alleged that it received all the necessary construction permits and concluded an agreement with the PMK-CARDINAL company ( a private company ; “ PMK-CARDINAL ” ) for construction of this building . On DATE ORG declared null and void the construction contract of CARDINAL DATE concluded between the applicant and the PMK-CARDINAL ( PMK-CARDINAL was later reorganised into the construction company “ ORG ” ) .", "The applicant alleges that from DATE it was allegedly persecuted by the NORP authorities for its attempt to construct the building . Allegedly as a result of this persecution , PMK-CARDINAL demolished the foundation of the building it was supposed to construct .", "In DATE the applicant was a respondent and / or plaintiff in unsuccessful litigation before different courts about the building . It did not provide a full account of the litigation , and submitted that the only proceedings of which it complains were the proceedings initiated by it on DATE before the Khmelnytsky Regional Commercial Court ( case no . CARDINAL ) . These proceedings were instituted by the applicant against the PMK-CARDINAL . However , on DATE the ORG ( “ ORG ” ) , changed the respondent to the construction company “ LOC ” ( hereinafter the “ respondent ” ) as the successor of PMK-CARDINAL . The applicant sought restitutio in integrum . In particular , it claimed that , as the respondent had demolished the building ’s foundations constructed by PMK-CARDINAL , it was obliged to rebuild it .", "On DATE the ORG rejected the applicant ’s claims as the events about which the applicant complained dated back to DATE . It therefore considered that they were lodged outside the DATE statutory time - limit for the introduction of civil claims , envisaged by Article CARDINAL of LAW .", "On DATE the L’viv ORG of Appeal rejected the applicant ’s appeal as being unsubstantiated and upheld the judgment of DATE .", "On DATE the ORG quashed the aforementioned judgment of DATE and the ruling of DATE and remitted the case for a fresh consideration to ORG .", "On DATE the ORG ruled that it had jurisdiction over the applicant ’s case . In the course of the new proceedings before ORG , the applicant asked the court to extend the DATE limitation period for lodging its claims against the respondent . It also requested the court to suspend or temporarily terminate the proceedings in its case in view of the criminal investigation pending against the respondent ’s director . It lodged additional claims for compensation against the respondent . Initially , the applicant claimed that the damage amounted to ORG DATE , CARDINAL . Later , it increased its claims to UAH PERSON .", "On DATE , DATE and DATE ORG ordered the applicant to produce substantiation for the amounts it claimed in damages . It also required the applicant to pay the ORG tax ( державне мито ) for the introduction of its additional claims .", "On DATE the ORG rejected all of the applicant ’s motions and requests as unsubstantiated . As to the increase in the applicant ’s claims , ORG stated that the applicant had failed to substantiate or pay the ORG tax on them . It further decided that the applicant ’s claim should be rejected as it was lodged outside the statutory DATE limitation period ( LAW ) .", "On DATE ORG rejected the applicant ’s appeal as unsubstantiated , and upheld the judgment of DATE . In particular , it referred to ORG DATE and CARDINAL of LAW that envisaged a DATE limitation period for lodging claims for damages .", "The applicant appealed in cassation directly to ORG ( ORG ) .", "On DATE the Higher Commercial Court rejected the cassation appeal as it should have been lodged through the first instance or appeal court which had considered the case and where the case file was . The court referred to LAW .", "On DATE the applicant re - lodged its appeal in cassation .", "On DATE the Higher Commercial Court rejected the applicant ’s cassation appeal as it was lodged outside the DATE time - limit allowed for the introduction of such appeals ( LAW ) . It also held that the incorrect introduction of the cassation appeal by the applicant does not suspend the DATE time - limit envisaged by LAW . As a result , the cassation appeal was returned to the applicant .", "On DATE the applicant re - lodged its appeal in cassation for the third time . It also requested renewal of the time - limit for the introduction of the cassation appeal .", "On DATE the ORG rejected the applicant ’s request to extend the time - limit as unsubstantiated . It also stated , inter alia , that the time - limit for lodging an appeal in cassation was DATE , but the applicant had lodged its appeal on DATE , i.e. out of time . Furthermore , the ORG reiterated that , under LAW , the refusals of CARDINAL DATE and DATE to allow the applicant ’s cassation appeal had no influence on the DATE time - limit for the introduction of an appeal with ORG . Moreover , LAW clearly states that cassation appeals with ORG had to be addressed to it through the court of first instance or the court of appeal . As a result , the cassation appeal and the court fees were returned to the applicant .", "On DATE and DATE the ORG informed the applicant , by letters , that its complaints about the partiality and lack of independence of the judges who rejected the applicant ’s cassation appeals were unsubstantiated . They also informed the applicant that it could appeal in cassation against the rulings of ORG to ORG .", "On DATE the applicant lodged a cassation appeal against the ruling of CARDINAL May CARDINAL of ORG with ORG ( ORG ) .", "On DATE ORG refused to initiate cassation proceedings .", "B. Relevant domestic law", "LAW of GPE , DATE", "Article CARDINAL", "“ In GPE the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation .", "ORG is the highest judicial body in the system of courts of general jurisdiction .", "The respective high courts are the highest judicial bodies of specialised courts .", "Courts of appeal and local courts shall operate in accordance with the law .", "The creation of extraordinary and special courts shall not be permitted . ”", "Law of GPE on ORG of DATE", "Section CARDINAL", "ORG - the highest judicial body", "“ CARDINAL . ORG of GPE is the highest judicial body within the system of courts of general jurisdiction ...", "ORG of GPE :", "CARDINAL ) NORP examines in cassation proceedings the decisions of courts of general jurisdiction in cases which , in accordance with procedural law , fall within its jurisdiction and / or re - examines all cases considered by courts of general jurisdiction ... ”", "Transitional Provisions", "“ CARDINAL . This law shall become effective from the date of its publication , save for Article CARDINAL - CARDINAL [ of the LAW ] , which shall become effective from DATE .", "... CARDINAL . Decisions of the judicial divisions of ORG of GPE or of the ORG of ORG of GPE that were not challenged by way of supervisory review proceedings before this PERSON entered into force , as well as resolutions of ORG of GPE , shall be final but may be appealed against to ORG of GPE on the basis of and pursuant to the procedure prescribed by LAW of GPE . ”", "“ The appeal in cassation ( petition for appeal in cassation ) shall be lodged with ORG through the court of first instance or the commercial court of appeal , which gave a contested judgment or resolution .", "The first instance or commercial court of appeal , that has adopted a contested judgment or resolution , shall transfer the appeal in cassation ( petition for appeal in cassation ) together with the case file to ORG of GPE within DATE from the moment of its receipt . ”", "“ Appeals in cassation ( petition for appeal in cassation ) shall be lodged within DATE from the date of entry into force of the first instance court ’s judgment or the resolution of the court of appeal . ”", "“ The parties to a case as well as the Prosecutor General of GPE have the right to lodge with ORG of GPE a cassation appeal against the resolution [ or ruling ] of ORG of GPE adopted following the review of a decision of a first instance commercial court , that has entered into force , or a resolution of ORG [ adopted as a result of its review ] . ”", "“ ORG of GPE reviews cassation appeals lodged against the resolutions [ or rulings ] of ORG of GPE if they are lodged :", "CARDINAL ) NORP on the basis of the application by ORG of GPE of a law or normative act which contravenes LAW ;", "CARDINAL ) where a decision contravenes decisions of ORG of GPE or of a higher court of a different specialisation on the issue of the application of the norms of substantive law ;", "CARDINAL ) where ORG of GPE has applied the same provision of the law or any other normative act differently in a similar case ;", "CARDINAL - CARDINAL ) due to the inconsistency of the resolutions [ or rulings ] with the international treaties of GPE approved by the PERSON of GPE ;", "CARDINAL ) where an international judicial body whose jurisdiction is recognised by GPE finds that a resolution has violated the international obligations of GPE . ”", "“ The cassation appeal ( petition ) of the Prosecutor General of GPE against the resolution of the Higher Commercial Court shall be lodged within DATE from the moment of its [ the resolution ’s ] adoption .", "In the event that the existence of the grounds for appeal in cassation after this period has ended , the ORG shall be obliged to rule that it has jurisdiction over the cassation appeal ( petition ) .", "The cassation appeal ( petition ) of the Prosecutor General of GPE against the resolution of ORG of GPE shall be lodged with ORG through ORG .", "The Higher Commercial Court shall transfer the cassation appeal ( petition ) together with the case file to ORG within DATE from the moment of its receipt . ”", "“ Proceedings for a review in cassation of a resolution [ or ruling ] of ORG of GPE by ORG of GPE shall be initiated on the basis of a decision taken by CARDINAL judge in the course of the hearing of the chamber in commercial cases composed of CARDINAL judges and shall be considered within DATE from the moment of arrival of the cassation appeal or petition .", "The resolution or a ruling of the Higher Commercial Court shall be reviewed by the judges of the commercial cases chamber of ORG in the course of a hearing .", "The resolution or a ruling of ORG of GPE shall be reviewed in cassation on the basis of the rules for consideration of the case in the first - instance commercial court , save for", "“ ORG of GPE , following consideration of the appeal in cassation by ORG GPE against a resolution [ or ruling ] of ORG of GPE , is entitled to :", "CARDINAL ) NORP leave the resolution [ or ruling ] unchanged and dismiss the appeal ;", "CARDINAL ) NORP quash the resolution [ or ruling ] and remit the case to the first - instance court for further consideration or quash the ruling and remit the case for further consideration to ORG ;", "CARDINAL ) NORP quash the resolution [ or ruling ] and terminate the proceedings in the case . ”", "“ The resolutions [ or rulings ] of ORG of GPE shall be quashed if they contravene LAW , international treaties agreed as binding by PERSON of GPE , or if the substantive law has been misapplied otherwise . ”", "“ ... A resolution of ORG of GPE shall be final and shall not be subject to appeal . ”", "“ ... Resolutions of ORG of GPE , following a re - examination of the case on the basis of an appeal in cassation against the resolution [ or ruling ] of ORG of GPE shall not include directions as to the admissibility or inadmissibility of evidence , the superiority of CARDINAL type of evidence over another , the norms of substantive law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case . ”" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant requested to have a social security card for his wife . This request was refused on the grounds that photography showing his wife carrying an NORP scarf was not acceptable for the social security identity cards .", "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 :", "The applicant , a non - commissioned officer , was a member of the PERSON sect . He had an antisocial character and his wife carried an NORP scarf . He adopted extreme religious ideology . His superiors considered the applicant as an undisciplined and insubordinate soldier .", "A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .", "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 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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[ "NORP The applicant , ORG , is an NORP national , who was born in DATE and lives in Semeljci . She is represented before the ORG by PERSON , 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 .", "During TIME DATE the applicant ’s DATE house in GPE was blown up by an unknown perpetrator .", "On DATE the LAW to LAW ( Zakon o izmjeni PERSON o obveznim odnosima , ORG no . CARDINAL/CARDINAL of CARDINAL DATE - “ the DATE LAW ) entered into force . It repealed section CARDINAL of LAW - which provided that the ORG was liable for damage resulting from “ acts of violence or terrorist acts ” - and stayed all proceedings instituted on the basis of that provision , pending enactment of new legislation .", "On DATE the applicant and her husband brought a civil action against the ORG in ORG ( PERSON ) seeking CARDINAL NORP kunas ( HRK ) as compensation for pecuniary damage sustained as a result of the destruction of their house , with the accrued statutory default interest .", "On DATE ORG gave judgment dismissing the claim of the applicant and her husband and ordered them to reimburse the ORG the costs of the proceedings in the amount of HRK CARDINAL,CARDINAL . It held that after section CARDINAL of LAW had been repealed there was no longer a legal basis for the State to be held liable for damage resulting from terrorist acts .", "The applicant submits that she paid the costs of the proceedings to the ORG , as ordered by ORG . The Government submitted that the applicant had never paid the costs at issue .", "On DATE the applicant and her husband appealed to ORG ( Županijski sud u ORG ) against that judgment , arguing that ORG had wrongly applied the relevant substantive law and erred in their assessment of the facts of the case . They did not forward any arguments as to the costs of the proceedings .", "In DATE the applicant ’s husband died .", "On DATE the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , ORG no . CARDINAL ) of DATE – “ the Liability Act DATE ” ) entered into force . It provided that the ORG was liable in tort for damage caused by death , bodily injury or impairment of health resulting from terrorist acts , whilst damage to property was to be compensated through reconstruction assistance , obtainable before the competent administrative authorities , under LAW . The LAW also provided that all proceedings stayed on the basis of LAW were to be resumed in accordance with its provisions .", "NORP On DATE ORG dismissed the appeal by the applicant and her husband and upheld the first - instance judgment .", "On DATE the applicant lodged an appeal on points of law with ORG . She argued that the lower courts had erred in the application of both procedural and substantive law when they had dismissed her compensation claim . She did not forward any arguments concerning the costs of the proceedings .", "On DATE ORG dismissed the appeal .", "On DATE the applicant lodged a constitutional complaint against ORG judgment , alleging , inter alia , violations of her constitutional rights to equality , equality before the law and ownership . Again , she did not forward any arguments concerning the cost of the proceedings .", "On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s constitutional complaint and served its decision on her representative on DATE ." ]

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[ "The applicant company is the owner of the DATE newspaper “ FAC ” .", "GPE ) is the majority shareholder of ORG ( PERSON - “ the KELAG ” ) .", "On DATE the ORG invited all shareholders to the general meeting on DATE . CARDINAL item on the agenda was the dismissal and re - election of the corporation 's supervisory board ( GPE ) .", "For the meeting of ORG ( PERSON ) of DATE , PERSON , the official dealing with financial matters at the material time , prepared a motion inviting ORG to nominate specific persons to the corporation 's supervisory board .", "He retracted this motion before the meeting as , at the request of PERSON PERSON , Regional Governor ( PERSON ) of PERSON , he had received a legal expert opinion issued by the expert PERSON According to this opinion , GPE had no right to nominate the members of the ORG supervisory board as the members had to be elected . The representative of GPE could propose candidates and exercise the voting right in the general meeting of the KELAG without a prior decision by ORG .", "Mr PERSON had further informed Mr GPE that ORG dealing with constitutional matters at ORG had approved this way of proceeding . Mr PERSON further commissioned an expert opinion by ORG . This opinion , issued on DATE , stated that an interpretation of the relevant provisions did not lead to an unequivocal result .", "NORP In the meantime , Mr GPE – despite the protest of the socialist members of ORG – gave authority to PERSON PERSON to represent GPE in the general meeting of the KELAG . Mr PERSON subsequently represented GPE at the said general meeting on DATE and exercised the voting right without having previously obtained a decision by ORG .", "On DATE , at the request of ORG ( “ the ORG ” ) PERSON , a professor of law of ORG , issued a further expert opinion of CARDINAL pages concerning the question of “ nomination of members to the ORG 's supervisory board by the Regional Governor of LOC ” .", "NORP This expert opinion came to the conclusion that the election of the supervisory board of the KELAG by the Regional Governor without a previous decision by ORG was not in accordance with federal constitutional law , regional constitutional law and ORG Rules of Procedure . The opinion finally mentioned the possibility of impeachment of members of ORG before ORG by majority vote of ORG ) under LAW ( Bundes - Verfassungsgesetz ) for having culpably breached the law . ORG decision in impeachment proceedings consisted of either the exoneration of the official in question or a finding against him or her which implied dismissal of the person from office . The possibility for ORG to limit its judgment in the event of minor infringements to a finding that there has been a breach of the law would not exist in the present case as impeachment had to be filed under LAW CARDINAL lit d which did not provide for this alternative .", "On DATE the applicant company published an article on its front page of “ Der Standard ” which read as follows :", "“ PERSON has breached the LAW", "According to an expert opinion commissioned by the SPÖ at FAC , the Regional Governor PERSON has committed a ' breach of law ' when appointing the supervisory board of the ORG . His handling of ORG Rules of Procedure would be ' illicit , illegal and unconstitutional ' . The ORG [ ORG ] nevertheless does not want to support an impeachment . It invites PERSON to correct the KELAG decisions concerning the personnel , which the ORG [ ORG ] categorical refuses : ' We refuse to be blackmailed ' . ”", "The article continued on page CARDINAL under the same heading with the subtitle : “ Expert opinion of professor in GPE accuses the Regional Governor of deliberate misguidance ” . It stated as follows :", "“ The NORP Regional Governor , PERSON , by acting on his own when appointing the members of the ORG supervisory board , has clearly committed a ' breach of the laws and LAW . This is the conclusion reached by A.S [ name in full ] , professor at ORG , in his expert opinion on constitutional matters which had been commissioned by the NORP SPÖ . PERSON , by acting on his own authority , has violated ORG and has , thus , breached the law and LAW . The expert opinion mentions as an aggravating factor that PERSON has ' deliberately mislead ORG and ignored LAW and ORG Rules of Procedure ' . According to the expert opinion it is therefore possible to institute impeachment proceedings against PERSON . If ORG convicted PERSON , he would be threatened with dismissal from office . The ORG leader PERSON has now given Mr PERSON an ultimatum : either the supervisory board should be appointed afresh by ORG as a whole or there should be a tripartite agreement on transforming PERSON into a holding company . Otherwise , the ORG would institute impeachment proceedings against Mr PERSON before the elections to ORG . Mr PERSON also called on the ÖVP not to ' cover up ' Mr PERSON 's breach of the law . In ORG the ORG reacted vehemently to the report . The leader of the ORG 's parliamentary group , PERSON , announced that a second opinion would be commissioned . Mr PERSON himself could not hide his anxiety . He leaned back in a relaxed fashion only when the leader of the ORG 's parliamentary group , PERSON , made clear that the ORG would not support his impeachment . Although the ORG intends to await the findings of an ' independent ' expert opinion , PERSON nonetheless hinted at the party 's strategy : ' Not punishment but rectification of PERSON 's breach of the law . ' In so doing , he both foiled his colleague PERSON and confirmed the viewpoint that there is a ' tacit coalition ' between the ORG and the ORG . '", "The article was followed by a further text in a small box headed “ [ The ] LAW stands above stock corporation law ” ( LAW steht über FAC ) . This text explained that PERSON had prepared an act of Government ( PERSON ) which Mr PERSON had , however , retracted as being an “ error ” . The expert opinion had found that this conduct amounted to deliberate misguidance of ORG . The article further stated that the expert GPE did not accept Mr PERSON 's reference to stock corporation law .", "On DATE Mr PERSON instituted proceedings for forfeiture ( GPE ) of the article and publication of the judgment under LAW of LAW ( Mediengesetz ) with ORG ( PERSON ) .", "On DATE ORG found that the article at issue , by stating that Mr PERSON had deliberately mislead ORG and had acted in breach of ORG Rule of Procedure and LAW , fulfilled the elements of the offence of defamation ( üble GPE ) under LAW ) . It , therefore , ordered the applicant company to black out the impugned statements in the issues still to be disseminated and the publication of the judgment under sections DATE and CARDINAL of LAW . It further ordered the applicant company to pay the costs of Mr PERSON 's counsel .", "At the trial the court heard the counsel of the applicant company , Mr PERSON and PERSON GPE . It dismissed the applicant company 's request to hear all other members of ORG as being irrelevant for the proceedings at issue .", "The court considered the statements that Mr PERSON had breached the LAW , had deliberately mislead ORG and had acted in breach of the law as statements of fact for which the applicant company had failed to supply sufficient proof . The court noted that there was , in particular , nothing to indicate that Mr PERSON had deliberately misled ORG which , in itself , was a sufficient reason for the ordered forfeiture . The fact whether or not Mr PERSON had acted in breach of the LAW was a matter which had to be decided by ORG .", "The applicant company appealed against this judgment . It submitted inter alia that the statements at issue were value judgments , based on the facts established by the expert opinion of the professor of ORG , and contributed to the discussion of a question of public interest .", "On DATE ORG ( Oberlandesgericht ) , having the expert opinion of PERSON before it as evidence , dismissed the applicant 's appeal . It noted that the expert opinion had to be considered as an admissible legal assessment of uncontested facts . The article at issue had , however , not simply reproduced the opinion given by the expert but had used it for an independent attack on PERSON reputation . The court noted in this regard that the article had not placed the expert opinion in its context , namely that of a legal dispute , but had presented it as an irrevocable verdict on PERSON . The court referred in particular to the wording of the article 's headings . It further noted that the article had not published any comment of PERSON and had not mentioned the existence of the opinion issued by the other expert Q. Furthermore , the article contained statements which were not supported by the expert opinion , namely that Mr PERSON had deliberately misled ORG and the reference to the possible impeachment of PERSON PERSON . The court noted in the latter regard that the expert opinion had merely mentioned the abstract possibility of impeachment of a member of ORG who , in the opinion of the majority of the members of ORG , had culpably breached the law . The court finally noted that ORG order to black out the impugned statements did not replace but complemented an order of forfeiture of the relevant issues . This judgment was served on the applicant company 's counsel on DATE .", "On DATE Mr PERSON brought injunction proceedings under LAW ( ORG ) against the applicant company .", "On DATE ORG ( ORG ) , referring to the judgments of the courts in the proceedings under LAW , granted the injunction and ordered the applicant to revoke the statements that Mr PERSON , by appointing the members of the ORG supervisory board , had deliberately misled ORG and had acted in breach of ORG rules of procedure and LAW . It further ordered the applicant company to pay the costs of Mr PERSON 's counsel .", "The court dismissed the applicant company 's argument that it could not be held responsible for the shortcomings of the article at issue since that article had been written by a journalist who was not trained in law . The journalist had relied on press releases prepared by ORG which summarised the expert opinion incorrectly . The court found that the applicant company had not complied with its obligation of journalistic diligence as it had failed to consult the available expert opinion .", "On DATE ORG ( Oberlandesgericht ) dismissed the applicant company 's appeal . This decision was served on the applicant company 's counsel on DATE .", "Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him . In this context “ defamation ” has been defined in LAW ) , as follows :", "“ CARDINAL . Anybody who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such 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 ...", "NORP The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . ”", "Section CARDINAL § CARDINAL of LAW reads as follows :", "“ Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person can not be secured or if conviction of such person is impossible on grounds precluding punishment , has not been requested or such a request has been withdrawn . If no punishment can be imposed in case of the offender having proved the truth , the defence of truth shall also be available to the owner ( publisher ) of the media product in question being the interested party ... ” .", "Section CARDINAL of LAW deals with the publication of a judgment ( PERSON ) . It states inter alia that a criminal judgment concerning a media offence has , at the request of the prosecution , to order the publication of those parts of the judgment which are necessary to inform the public about the offence and the conviction . At the request of the prosecution , the publication of a judgment has to be ordered in separate proceedings , if statements falling within the objective definition of an offence have been made in the media and the prosecution of a specific person is not possible .", "Section CARDINAL of LAW ( ORG ) provides as follows :", "“ CARDINAL . Anybody who , due to defamation , suffered a damage or loss of profit , may claim compensation .", "NORP The same applies if anyone is disseminating facts , which jeopardize another person 's reputation , gain or livelihood , the untruth of which was known or must have been known to him . In this case there is also a right to claim a revocation and the publication thereof ... ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "In DATE ORG decided to expropriate a plot of land ( plot no . CARDINAL ) , measuring QUANTITY in the ORG area in ORG which belonged to the applicant . On DATE the amount of compensation for the expropriation was blocked in ORG , but the applicant never received this sum .", "On DATE the applicant filed an action with ORG and requested increased compensation .", "On DATE , while the case for increased compensation was pending , ORG informed ORG that they renounced their decision to expropriate the land in question . The applicant did not pursue her case and in DATE the first - instance court decided to discontinue the proceedings .", "In DATE ORG brought an action before ORG and requested the transfer of the title deed to plot no . CARDINAL to the ORG . On DATE the court accepted the request . The applicant was not notified of the proceedings or of the judgment delivered by the first - instance court . On DATE the court 's decision was announced in a newspaper . Subsequently , on CARDINAL DATE the plot was registered in the name of the ORG .", "On DATE , after having learned about the transfer of the title deed of plot no . CARDINAL to ORG , the applicant brought an action before ORG and requested compensation for the unlawful seizure of her property . She submitted , inter alia , that she had not been notified of the case lodged by ORG in DATE or of the judgment delivered by the first - instance court . She argued that the transfer of her title deed was therefore unlawful . In reply , ORG argued that as they had been in actual possession of the land since DATE , the applicant 's action for compensation had to be rejected as being time - barred .", "During the proceedings , the first - instance court ordered an expert report in order to determine the value of the land in question . On DATE the first - instance court held an on - site inspection . It was observed that ORG had surrounded the plot in question with a fence . On DATE a committee of experts submitted a report to the first - instance court . In their report , the experts determined that the value of plot no . CARDINAL would be CARDINAL,CARDINAL,CARDINAL,CARDINAL NORP liras ( GPE ) ( MONEY ( ORG ) ) .", "On DATE ORG dismissed the applicant 's case . It found that ORG had been in actual possession of plot no . CARDINAL since DATE and therefore held that the case was introduced out of the statutory timelimit as provided in LAW ( Law no . ORG ) .", "On DATE ORG found the applicant 's grounds for appeal unfounded and upheld the judgment of the first - instance court . The applicant 's request for rectification was further rejected on DATE .", "On DATE ORG annulled LAW no . ORG .", "A full description of the domestic law may be found in GPE ( Çökmez ) and Others v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ." ]

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